 | The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject.(March 2022) |
An anticanon is a legal text that is now viewed as wrongly reasoned or decided. [1] [2] The term "anticanon" stands in distinction to the canon, which contains basic principles or rulings that almost all people support. [3]
The anticanon in U.S. constitutional law is a small set of U.S. Supreme Court judgements that have subsequently become widely considered to have been grievously mistaken for their poor legal reasoning and negative consequences. [4] [5] [6] [7] [8] Anticanon judgments usually uphold government policies that promote discrimination and oppression. [9] 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.
These cases are: [4]
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. [10] Overturned by the Thirteenth Amendment, which abolished slavery, and the Fourteenth Amendment, which guarantees citizenship to "[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof."
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. [11] Overturned (de facto) by Brown v. Board of Education , which held that racial segregation in public schools is unconstitutional. [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, with "the switch in time that saved nine" in West Coast Hotel Co. v. Parrish (1937) (upholding a minimum wage law enacted by Washington state). [13] : 47
Buck v. Bell (1927): upheld a Virginia statute instituting compulsory sterilization of the intellectually disabled "for the protection and health of the state". [14] The Buck decision reflected the then-growing popularity of the American eugenics movement, which believed that preventing the disabled from reproducing would enhance the genetic quality of the U.S. population. [15] Though Buck has never been expressly overturned, it was later weakened by Skinner v. Oklahoma (1942) (striking down a law permitting the compulsory sterilization of criminals). By this time the American eugenics movement was losing support, and it was completely discredited among both legislators and the general public following the exposure of Nazi Germany's mass-extermination policies. [16]
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 West Coast Japanese Americans to exclusion 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 exclusion and internment. Chief Justice John Roberts explicitly repudiated the Korematsu decision in his majority opinion in the 2018 case of Trump v. Hawaii (vacating the injunction against Executive Order 13780, also known as Travel Ban 2.0, and thereby allowing it to take effect). The statement has no precedential effect, and so does not legally "overrule" Korematsu, because it was dicta. [17]
Plessy v. Ferguson, 163 U.S. 537 (1896), was a landmark U.S. Supreme Court decision ruling that racial segregation laws did not violate the U.S. Constitution as long as the facilities for people of color were equal in quality to those of white people, a doctrine that came to be known as "separate but equal". The decision legitimized the many state "Jim Crow laws" re-establishing racial segregation that had been passed in the American South after the end of the Reconstruction era in 1877. Such legally enforced segregation in the South lasted into the 1960s.
Korematsu v. United States, 323 U.S. 214 (1944), was a landmark decision by the Supreme Court of the United States that upheld the internment of Japanese Americans from the West Coast Military Area during World War II. The decision has been widely criticized, with some scholars describing it as "an odious and discredited artifact of popular bigotry", and as "a stain on American jurisprudence". The case is often cited as one of the worst Supreme Court decisions of all time. Chief Justice John Roberts repudiated the Korematsu decision in his majority opinion in the 2018 case of Trump v. Hawaii.
Lochner v. New York, 198 U.S. 45 (1905), was a landmark decision of the U.S. Supreme Court holding that a New York State statute that prescribed maximum working hours for bakers violated the bakers' right to freedom of contract under the Fourteenth Amendment to the U.S. Constitution. The decision has since been effectively overturned.
Oliver Wendell Holmes Jr. was an American jurist who served as an associate justice of the U.S. Supreme Court from 1902 to 1932. Holmes is one of the most widely cited and influential Supreme Court justices in American history, noted for his long tenure on the Court and for his pithy opinions—particularly those on civil liberties and American constitutional democracy—and deference to the decisions of elected legislatures. Holmes retired from the Court at the age of 90, an unbeaten record for oldest justice on the Supreme Court. He previously served as a Brevet Colonel in the American Civil War, in which he was wounded three times, as an associate justice and chief justice of the Massachusetts Supreme Judicial Court, and as Weld Professor of Law at his alma mater, Harvard Law School. His positions, distinctive personality, and writing style made him a popular figure, especially with American progressives.
Substantive due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Constitution. Courts have asserted that such protections come from the due process clauses of the Fifth and Fourteenth amendments to the U.S. Constitution, which prohibit the federal and state governments, respectively, from depriving any person of "life, liberty, or property, without due process of law". Substantive due process demarks the line between those acts that courts hold to be subject to government regulation or legislation and those that courts place beyond the reach of governmental interference. Whether the Fifth or Fourteenth Amendments were intended to serve that function continues to be a matter of scholarly as well as judicial discussion and dissent. In 2022, Justice Clarence Thomas called on the Supreme Court to reconsider all of its rulings that were based on substantive due process.
Buck v. Bell, 274 U.S. 200 (1927), is a landmark decision of the United States Supreme Court, written by Justice Oliver Wendell Holmes Jr., in which the Court ruled that a state statute permitting compulsory sterilization of the unfit, including the intellectually disabled, "for the protection and health of the state" did not violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Despite the changing attitudes in the coming decades regarding sterilization, the Supreme Court has never expressly overturned Buck v. Bell. It is widely believed to have been weakened by Skinner v. Oklahoma, 316 U.S. 535 (1942), which involved compulsory sterilization of male habitual criminals. Legal scholar and Holmes biographer G. Edward White, in fact, wrote, "the Supreme Court has distinguished the case [Buck v. Bell] out of existence". In addition, federal statutes, including the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, provide protections for people with disabilities, defined as both physical and mental impairments.
Skinner v. State of Oklahoma, ex rel. Williamson, 316 U.S. 535 (1942), is a unanimous United States Supreme Court ruling that held that laws permitting the compulsory sterilization of criminals are unconstitutional as it violates a person's rights given under the 14th Amendment of the United States Constitution, specifically the Equal Protection Clause and the Due Process Clause. The relevant Oklahoma law applied to "habitual criminals" but excluded white-collar crimes from carrying sterilization penalties.
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "nor shall any State ... deny to any person within its jurisdiction the equal protection of the laws." It mandates that individuals in similar situations be treated equally by the law.
Carrie Elizabeth Buck was the plaintiff in the United States Supreme Court case Buck v. Bell, after having been ordered to undergo compulsory sterilization for purportedly being "feeble-minded" by her foster parents after their nephew raped and impregnated her. She had given birth to an illegitimate child without the means to support it. The surgery, carried out while Buck was an inmate of the Virginia State Colony for Epileptics and Feebleminded, took place under the authority of the Sterilization Act of 1924, part of the Commonwealth of Virginia's eugenics program.
In 1924, the Virginia General Assembly enacted the Racial Integrity Act. The act reinforced racial segregation by prohibiting interracial marriage and classifying as "white" a person "who has no trace whatsoever of any blood other than Caucasian". The act, an outgrowth of eugenicist and scientific racist propaganda, was pushed by Walter Plecker, a white supremacist and eugenicist who held the post of registrar of the Virginia Bureau of Vital Statistics.
In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrate that the law or regulation is necessary to achieve a "compelling state interest". The government must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose. Failure to meet this standard will result in striking the law as unconstitutional.
Harry Hamilton Laughlin was an American educator and eugenicist. He served as the superintendent of the Eugenics Record Office from its inception in 1910 to its closure in 1939, and was among the most active individuals influencing American eugenics policy, especially compulsory sterilization legislation.
The Lochner era was a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's own notions of the most appropriate means for the State to implement its considered policies". The court did this by using its interpretation of substantive due process to strike down laws held to be infringing on economic liberty or private contract rights. The era takes its name from a 1905 case, Lochner v. New York. The beginning of the era is usually marked earlier, with the Court's decision in Allgeyer v. Louisiana (1897), and its end marked forty years later in the case of West Coast Hotel Co. v. Parrish (1937), which overturned an earlier Lochner-era decision.
Fred Toyosaburo Korematsu was an American civil rights activist who resisted the internment of Japanese Americans during World War II. Shortly after the Imperial Japanese Navy launched its attack on Pearl Harbor, President Franklin D. Roosevelt issued Executive Order 9066, which authorized the removal of individuals of Japanese ancestry living on the West Coast from their homes and their mandatory imprisonment in incarceration camps, but Korematsu instead challenged the orders and became a fugitive.
Hirabayashi v. United States, 320 U.S. 81 (1943), was a case in which the United States Supreme Court held that the application of curfews against members of a minority group were constitutional when the nation was at war with the country from which that group's ancestors originated. The case arose out of the issuance of Executive Order 9066 following the attack on Pearl Harbor and the U.S. entry into World War II. President Franklin D. Roosevelt had authorized military commanders to secure areas from which "any or all persons may be excluded", and Japanese Americans living in the West Coast were subject to a curfew and other restrictions before being removed to internment camps. The plaintiff, Gordon Hirabayashi, was convicted of violating the curfew and had appealed to the Supreme Court. Yasui v. United States was a companion case decided the same day. Both convictions were overturned in coram nobis proceedings in the 1980s.
The Supreme Court of the United States is the only court specifically established by the Constitution of the United States, implemented in 1789; under the Judiciary Act of 1789, the Court was to be composed of six members—though the number of justices has been nine for most of its history, this number is set by Congress, not the Constitution. The court convened for the first time on February 2, 1790.
Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938), was a United States Supreme Court decision holding that states which provided a school to white students had to provide in-state education to Black students as well. States could satisfy this requirement by allowing Black and white students to attend the same school or creating a second school for Black students.
Government by Judiciary is a 1977 book by constitutional scholar and law professor Raoul Berger which argues that the U.S. Supreme Court has interpreted the Fourteenth Amendment of the U.S. Constitution contrary to the original intent of the framers of this Amendment and that the U.S. Supreme Court has thus usurped the authority of the American people to govern themselves and decide their own destiny. Berger argues that the U.S. Supreme Court is not actually empowered to rewrite the U.S. Constitution – including under the guise of interpretation – and that thus the U.S. Supreme Court has consistently overstepped its designated authority when it used its powers of interpretation to de facto rewrite the U.S. Constitution in order to reshape it more to its own liking.
This discussion raises the question of whether other constitutional systems have their own "anticanons." That question exceeds this Article's scope, but two possible examples come to mind.