Research request

[Steven Shiffrin]

Mark
I recall from my debating days (a thousand years ago) that Erie says
that Swift v. Tyson was an unconstitutional assumption of power that no
lapse of time nor respectable array of opinion should deem us hesitate
to correct. Also Blackmun in Bowers says "I cannot agree that either the
length of time a majority has held its convictions or the passion with
which it defends them can withdraw legislation from this Court's
scrutiny." But I think there is a case that says something very close to
what you are quoting, but I can't think of it.
Steve

Mark Tushnet wrote:

>I've been unsuccessful in my effort to recall where the Supreme Court,
>or some justice, said something like this:  "A long history of
>acquiescence in an unconstitutional practice does not make it
>constitutional."  ("Something like this" because a LEXIS search didn't
>turn it up.)  Can anyone supply me with the citation -- if I haven't
>simply made it up!  Off-list replies are fine.
>
>