The Case for Expanding the Anticanon of Constitutional Law


The “anti-canon” 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 Cases, Euclid v. Ambler Realty, and Berman v. Parker. The three rulings all share in spades the main characteristics of other anti-canonical decisions: 1) terrible legal reasoning, 2) enormously harmful real-world effects, and 3) facilitating racial and ethnic discrimination and oppression.

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