Citations (3)



On the Evolution of the Canonical Dissent

Anita S. Krishnakumar

St. John's University - School of Law

Rutgers Law Review, Vol. 52, p. 781, 2000
St. John's Legal Studies Research Paper No. 06-0069

Legal theorists increasingly have come to recognize and study the existence of a constitutional canon composed of highly authoritative legal texts that command special reverence in the law. Among these highly authoritative texts are a series of dissenting opinions-e.g., Justice Holmes's in Lochner v. New York, and Justice Harlan's in Plessy v. Ferguson -- that ironically are more famous than the majority opinions in most other cases. This Article examines the evolution of the dissenting canon, seeking to explain both the methods by which various dissenting opinions became canonized and the motivating factors behind these canonizations.

Specifically, the Article argues that the canonization of dissenting opinions began as a New Deal phenomenon-linked to the public rejection of the Old Court's economic rights jurisprudence, as embodied in the majority opinion in Lochner v. New York. The canonization of Holmes's Lochner dissent, it is shown, was a product both of progressive intellectuals eager to usher in the New Deal, and of a judicial desire to memorialize the popular repudiation of the Old Court's philosophy. Other early canonizations of dissent followed the Lochner pattern, emerging only as responses to popular rejections of old precedents. But as time wore on, the Court began developing a new kind of canonization, whereby justices consciously lifted and adopted principles articulated in dissenting opinions of yore as authority for the formulation of new constitutional rights and rules. Several civil liberties dissents (involving, inter alia, First and Fourth Amendment rights) thus became canonized even before the majority opinions which they criticized had been overruled.

The Article ends with a look at what the evolution of the dissenting canon teaches about the shape of the constitutional canon as a whole-noting, for instance, the central role that political conflict plays in the creation and elevation of canonical texts.

Number of Pages in PDF File: 47

Open PDF in Browser Download This Paper

Date posted: April 29, 2007  

Suggested Citation

Krishnakumar, Anita S., On the Evolution of the Canonical Dissent. Rutgers Law Review, Vol. 52, p. 781, 2000; St. John's Legal Studies Research Paper No. 06-0069. Available at SSRN: https://ssrn.com/abstract=983114

Contact Information

Anita S. Krishnakumar (Contact Author)
St. John's University - School of Law ( email )
Feedback to SSRN

Paper statistics
Abstract Views: 981
Downloads: 106
Download Rank: 203,495
Citations:  3