What I have in mind, at least for purposes of my article, are decisions by
the Supreme Court that are arguably more than "mere" mistakes about
constitutional meaning, that, in addition to misinterpreting the
Constitution, arguably also violate, say, the structural or Rule of Law
norms of the Constitution that constrain the Court. I take this to be the
upshot of Justice Black's dissent in Griswold - that not only has the Court
misinterpreted the Constitution but that, further, in creating an
unenumerated right to privacy the Court (at least arguably) violates
structural constitutional norms of the separation of powers and federalism.
In a similar vein, from Justice Black's perspective, one might argue that
the Court in Griswold violated a Rule of Law norm (perhaps contained in the
Fifth Amendment Due Process Clause) requiring judicial fidelity to the
Constitution (i.e., to the plain meaning of the text in Black's view). Let
me add that I am not so much interested in Justice Black's particular
application of the concept of constitutional violations by the Supreme
Court in Griswold (based on his particular judicial philosophy) as I am in
the broader concept itself, which could be asserted from any number of
judicial philosophies.
In any event, I think for a category of supreme judicial constitutional
violations to have any analytical value one would need to distinguish
between (1) the Court's "mere" mistakes about constitutional meaning,
mistakes that are generally consistent with constitutional structure and
the Rule of Law, say, because they are "reasonable" mistakes (however
determined) about constitutional meaning and (2) the Court's "unreasonable"
mistakes, mistakes about constitutional meaning that are so inconsistent
with constitutional structure and/or the Rule of Law to qualify as
constitutional violations.
"Reasonableness" here, as a standard, would involve both a
determination of the proper judicial role mandated by the Constitution
(including issues of interpretive theory and deference) and the degree of
deviation from that role allowable before the Court exceeds the
constitutional confines of the judicial power. Black's view in Griswold, I
think, is that the adoption of "natural law" due process analysis is a
sufficient deviation from the Court's proper role under the constitutional
design (in light of the separation of powers and federalism) to count as a
constitutional violation by the Court.
I think I also neglected to make clear in my earlier post that I am most
interested in the concept of constitutional violations by the Supreme Court
in the area of interpretive authority and methodology *outside* the areas
that generally fall under the rubric of federal jurisdiction (i.e.,
justiciability, jurisdiction, Erie, etc.), though those areas also shed
light on the concept of judicial constitutional violations. Assertions of
the existence of constitutional limits on the Court and thus the potential
for their violation by the Court are not that uncommon in fed jur.
--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]
At 12:11 PM 6/30/2003 -0400, you wrote:
> What behavior do you mean? Mark A. Graber
>
>>>>>>>
> 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]
>
