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To: Tarkin
Your citation from Griswold is a DISSENTING opinion. The majority decision said nothing about "substantive due process." That doctrine existed long before the Griswold case, and, as you've pointed out, became the basis for at least one dissenting opinion.

The power to nullify state laws arose from Marbury.

Justice Stewart's dissent in Griswold virtually scoffs at the notion of substantive due process:

"... we are not asked in this case to say whether we think this law is unwise, or even asinine. We are asked to hold that it violates the United States Constitution. And that I cannot do."

160 posted on 01/15/2006 3:55:12 PM PST by IronJack
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To: IronJack
Of course. But Justice Black's dissent shows the reasoning of the Court and indicates that (although the majority did not admit it) it abandoned Ferguson v. Skurpa. Griswold meant that the SCOTUS gave itself the power to nullify state laws solely because they were "contrary to the evolving standards of decency" or "shocking to conscience". Exactly the same reasoning was used in Roe. The fact that the majority did not mention "substantive due process" in Griswold simply means that they did not want to explicitly overrule their own opinion from two years before. As Justice Stewart said in Roe:

Griswold decision can be rationally understood only as a holding that the Connecticut statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment. As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such.

It is of course a matter of discussion whether we accept the substantive due process standard (many conservatives like Justice Sutherland, Butler or Harlan II accepted it, whereas many liberals like Justice Brandeis or Justice Black rejected it). However if we do accept it we should not criticized Justice Blackmun for Roe. IMHO the courts should only "nullify" (of course technically they don't do thar, but the end is the same) state laws only if they violate some specific provisions of the Constitution and not if they violate the emenations of the penumbras which can only be seen by Justice Douglas and his friends.
167 posted on 01/15/2006 4:07:13 PM PST by Tarkin (Janice Rogers Brown for President!)
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