The Anticanon: Constitutional Canons and Their Implications

Abstract

This article examines the role of constitutional 'anti-canon'—the cases universally recognized as wrongly decided—in shaping constitutional discourse. By analyzing Dred Scott v. Sandford, Plessy v. Ferguson, Lochner v. New York, and Korematsu v. United States, the article argues that these cases serve a constitutive function in constitutional law, defining the boundaries of legitimate constitutional argument. The article contends that the anti-canon is not merely a collection of judicial errors but a set of decisions that performs important work in constitutional culture, establishing what kinds of arguments are out of bounds and reinforcing shared constitutional commitments.

Key Findings

• The anti-canon consists of cases universally condemned across the political spectrum
• These decisions define the outer boundaries of acceptable constitutional argumentation
• Anti-canonical cases serve a constitutive rather than merely cautionary function
• The selection of anti-canonical cases reflects current political consensus rather than objective legal error

Related Statutes

• U.S. Constitution, Fourteenth Amendment

Related Cases

• Dred Scott v. Sandford (1857)
• Plessy v. Ferguson (1896)
• Lochner v. New York (1905)
• Korematsu v. United States (1944)