The Case for Expanding the Anticanon of Constitutional Law

Abstract

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 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 anti-canon 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.

Keywords: property rights, zoning, land use, immigration, racial discrimination, racism, public use, constitutional theory, eminent domain, Euclid, Chinese Exclusion Case, Berman v. Parker

JEL Classification: K11, F22, H11, H70, O18, J15, J61