Anticanon
The anticanon in U.S. constitutional law is a small set of U.S. Supreme Court judgments that have subsequently become widely considered to have been grievously mistaken for their poor legal reasoning and negative consequences.[1][2][3][4][5] Many have never been formally overturned, though the Supreme Court has usually limited their later effects, rhetorically repudiated them, and refused to cite them in subsequent cases.
One Harvard Law Review article defines the cases of the anticanon as:[1]
- Dred Scott v. Sandford (1857): held that the U.S. Constitution did not extend American citizenship to people of black African descent, and thus they could not enjoy the rights and privileges the Constitution conferred upon American citizens.[6] Described by Chief Justice Charles Evans Hughes as the Supreme Court’s “greatest self-inflicted wound”[7], the case was later abrogated, after the Civil War, by the Thirteenth Amendment, which abolished slavery and involuntary servitude, except as to penal labor, the Fourteenth Amendment, which confers citizenship to "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof”, and the Fifteenth Amendment, which prohibits the denial or abridgment of suffrage by the federal or state governments' on account of "race, color, or previous condition of servitude."
- Plessy v. Ferguson (1896): established the doctrine of separate but equal by holding that racial segregation does not violate the Fourteenth Amendment as long as facilities are equal in quality.[8] Superseded and overruled (de facto) by Brown v. Board of Education (1954) and Bolling v. Sharpe (1954), which held racial segregation in federal or state public schools unconstitutional.[8] Runyon v. McCrary (1976) later held that racial segregation in private schools violates federal law.[9] The Congressional Research Service considers Bob Jones University v. United States (1983), which held "racial discrimination in education violates a most fundamental national public policy", to have overruled the case de jure.[10][11]
- Lochner v. New York (1905): held that a New York statute prescribing maximum working hours for bakers violated the bakers' right to freedom of contract under the Fourteenth Amendment.[12] Lochner is part of the Lochner era in constitutional law, wherein the Supreme Court struck down many state economic regulations under the doctrine of substantive due process.[13]: 36 The Lochner era ended in the late 1930s, usually attributed to President Franklin D. Roosevelt's court-packing threat that resulted in "the switch in time that saved nine" with West Coast Hotel Co. v. Parrish (1937), a case which bucked Lochner precedents.[13]: 47
- Korematsu v. United States (1944): upheld the exclusion of Japanese Americans from the West Coast Military Area during World War II, permitting the removal of Japanese Americans to internment camps. Decided on the same day as Ex parte Endo, which held that loyal citizens could not be detained without a hearing. Ex parte Endo effectively ended Japanese American internment. Overturned by Trump v. Hawaii (2018).[14][15][16]
References
[edit]- 1 2 Greene, Jamal (December 20, 2011). "The Anticanon". Harvard Law Review. Retrieved 18 February 2019.
- ↑ Lam, Charles (February 17, 2019). "What we can learn from Fred Korematsu, 75 years after the Supreme Court ruled against him". NBC News. Retrieved 18 February 2019.
- ↑ Amar, Akhil (2011). "Plessy v. Ferguson and the Anti-Canon". Pepperdine Law Review. 39 (1): 75–90. hdl:20.500.13051/3125.
- ↑ Graber, Mark A. (2011). "Hollow Hopes and Exaggerated Fears: the Canon/Anticanon in Context". Harvard Law Review Forum. 125 (2).
- ↑ Levinson, Sanford (2011). "Is Dred Scott Really the Worst Opinion of All Time? Why Prigg Is Worse Than Dred Scott (But Is Likely to Stay Out of the "Anticanon")". Harvard Law Review Forum. 125 (2).
- ↑ Chemerinsky, Erwin (2019). Constitutional Law: Principles and Policies (6th ed.). New York: Wolters Kluwer. p. 722. ISBN 978-1454895749.
- ↑ Bernard Schwartz (1997). A Book of Legal Lists: The Best and Worst in American Law. Oxford University Press. p. 70. ISBN 978-0198026945.
- 1 2 Schauer, Frederick (1997). "Generality and Equality". Law and Philosophy. 16 (3): 279–97. doi:10.2307/3504874. JSTOR 3504874.
- ↑ Lewis, Thomas (2022). "Runyon v. McCrary". EBSCO. Archived from the original on December 14, 2025. Retrieved May 22, 2026.
- ↑ "Table of Supreme Court Decisions Overruled by Subsequent Decisions". constitution.congress.gov. Congressional Research Service. Retrieved 2026-05-22 – via Library of Congress.
- ↑ Bob Jones University v. United States, 461 U.S. 574, 593 (1983)
- ↑ Lochner v. New York, 198 U.S. 45 (1905). This article incorporates public domain material from this U.S government document.
- 1 2 Jacobs, Harvey Martin (2004). Private property in the 21st century : the future of an American ideal. Cheltenham, UK: Edward Elgar. ISBN 1-84376-327-3. OCLC 52547683.
- ↑ “We have since overruled Korematsu, recognizing that it was ‘gravely wrong the day it was decided.’” Students for Fair Admissions v. Harvard, 600 U.S. 181, slip op. at 207, n. 3 (2023)
- ↑ “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’” Trump v. Hawaii, 585 U.S. 667, 710 (2018)
- ↑ Locker, Ray. "Supreme Court overrules Korematsu case that upheld World War II Japanese American incarceration". USA TODAY. Retrieved 2026-05-22.
