Re: Constitutional Violations by the Supreme Court

[Mark Graber]

Could this be clarifed a bit.  One might argue (indeed, every dissent in a constitutional case may have argued) that any misinterpretation is a constitutional violation (good faith exceptions for justices?).  What behavior do you mean?   Mark A. Graber >>> [EMAIL PROTECTED] 06/28/03 04:53PM >>>         I am writing an article on the concept of constitutional violations by the Supreme Court (building on analyses in pieces I have published the last few years in the Kentucky Law Journal and Notre Dame Law Review), and I am looking for statements by Supreme Court Justices asserting violations of the Constitution by the Supreme Court.         The paradigm statement I have in mind is found in Justice Black's dissent in Griswold, where Black contends that the assertion of a "natural law" substantive due process interpretive approach resulting in a "loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts."         Justice White in his Roe dissent, also hints at the possibility of such a violation ("As an exercise of raw judicial power, the Court *perhaps has authority* to do what it does today . . . .)(emphasis added). The second Justice Harlan has a similar statement in his Mapp dissent (stating that "this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason."). A recent assertion of a similar nature is found in Scalia's dissent in Dickerson (contending that the Supreme Court's invalidation of a law of Congress due to its conflict with what the Court itself views as a mere prophylactic rule rather than an actual constitutional right is an act by the Court in "plain violation of the Constitution").         So if anyone knows (or has a dim memory) of other similar statements by any of the justices, or anything in the ballpark, I would appreciate any tips. Off-list replies are welcome.         Best regards, Jack Jack Wade Nowlin Jessie D. Puckett, Jr., Lecturer in Law Assistant Professor of Law University of Mississippi School of Law University, MS 38677 (662) 915-6855 [EMAIL PROTECTED]