The Volokh Conspiracy

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Constitutional Interpretation

My Forthcoming Article on "The Case for Expanding the Anticanon of Constitutional Law"

It argues for increasing the number of cases in the Supreme Court's "Hall of Shame" and proposes three worthy additions.


Joe Ravi/Wikimedia/CC-BY-SA 3.0
(Joe Ravi/Wikimedia/CC-BY-SA 3.0)

Earlier today, I posted to SSRN my forthcoming article on "The Case for Expanding the Anticanon of Constitutional Law," part of a symposium published by the Wisconsin Law Review. Here's the abstract:

The "anticanon" of constitutional law is an underappreciated constraint on judicial discretion. Some past decisions are so reviled that no judge can issue analogous rulings today, without suffering massive damage to his or her reputation. This article argues for expanding the anti-canon, and proposes three worthy new candidates: The Chinese Exclusion Case, Euclid v. Ambler Realty, and Berman v. Parker. The three rulings all share in spades the main characteristics of other anti-canonical decisions: terrible legal reasoning, enormously harmful real-world effects, and facilitating racial and ethnic discrimination and oppression.

Part I outlines the nature of the anticanon and how cases can "qualify" for it. Part II makes the case for adding new cases to the list. Finally, Part III explains why The Chinese Exclusion Case, Berman, and Euclid would be worthy additions to the Supreme Court's Hall of Shame.

As noted in the article, the main point is to spark a dialogue over the idea of making additions to the anticanon. Others may suggest rulings that make even more worthy additions than my three candidates. Still, I think the latter are at least tough to beat.  The Chinese Exclusion Case, for example, combines terrible legal reasoning with more blatant racism than even Plessy v. Ferguson, and caused a comparable amount of harm (see Part III.A of the article for details). Berman and Euclid also combine awful reasoning with vast harm inflicted on millions of people, combined with facilitating large-scale racial exclusion and what James Baldwin called "Negro removal" (see Parts III.B-C).