 | 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 progressive reformer 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
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. [14]
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Usually considered one of the most consequential amendments, it addresses citizenship rights and equal protection under the law and was proposed in response to issues related to formerly enslaved Americans following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark Supreme Court decisions such as Brown v. Board of Education (1954) regarding racial segregation, Loving v. Virginia (1967) regarding interracial marriage, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, Obergefell v. Hodges (2015) regarding same-sex marriage, and Students for Fair Admissions v. Harvard (2023) regarding race-based college admissions. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials.
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 each race were equal in quality, a doctrine that came to be known as "separate but equal". The decision legitimized the many state 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 been effectively overturned.
John Marshall Harlan was an American lawyer and politician who served as an associate justice of the Supreme Court of the United States from 1877 until his death in 1911. He is often called "The Great Dissenter" due to his many dissents in cases that restricted civil liberties, including the Civil Rights Cases, Plessy v. Ferguson, and Giles v. Harris. Many of Harlan's views expressed in his notable dissents would become the official view of the Supreme Court starting from the 1950s Warren Court and onward.
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.
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.
Lum v. Rice, 275 U.S. 78 (1927), is a United States Supreme Court case in which the Court held that the exclusion on account of race of a child of Chinese ancestry from a public school did not violate the Fourteenth Amendment to the United States Constitution. The decision effectively approved the exclusion of any minority children from schools reserved for whites.
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.
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment. Courts applying rational basis review seek to determine whether a law is "rationally related" to a "legitimate" government interest, whether real or hypothetical. The higher levels of scrutiny are intermediate scrutiny and strict scrutiny. Heightened scrutiny is applied where a suspect or quasi-suspect classification is involved, or a fundamental right is implicated. In U.S. Supreme Court jurisprudence, the nature of the interest at issue determines the level of scrutiny applied by appellate courts. When courts engage in rational basis review, only the most egregious enactments, those not rationally related to a legitimate government interest, are overturned.
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.
Melville Weston Fuller was an American politician, attorney, and jurist who served as the eighth chief justice of the United States from 1888 until his death in 1910. Staunch conservatism marked his tenure on the Supreme Court, exhibited by his tendency to support unfettered free enterprise and to oppose broad federal power. He wrote major opinions on the federal income tax, the Commerce Clause, and citizenship law, and he took part in important decisions about racial segregation and the liberty of contract. Those rulings often faced criticism in the decades during and after Fuller's tenure, and many were later overruled or abrogated. The legal academy has generally viewed Fuller negatively, although a revisionist minority has taken a more favorable view of his jurisprudence.
Wong Wing v. United States, 163 U.S. 228 (1896), was a United States Supreme Court case in which the Court found that the Fifth and Sixth Amendments to the U.S. Constitution forbid the imprisonment at hard labor without a jury trial for noncitizens convicted of illegal entry to or presence in the United States.
The Stone Court refers to the Supreme Court of the United States from 1941 to 1946, when Harlan F. Stone served as Chief Justice of the United States. Stone succeeded the retiring Charles Evans Hughes in 1941, and served as Chief Justice until his death, at which point Fred Vinson was nominated and confirmed as Stone's replacement. He was the fourth chief justice to have previously served as an associate justice and the second to have done so without a break in tenure. Presiding over the country during World War II, the Stone Court delivered several important war-time rulings, such as in Ex parte Quirin, where it upheld the President's power to try Nazi saboteurs captured on American soil by military tribunals. It also supported the federal government's policy of relocating Japanese Americans into internment camps.
The Fuller Court refers to the Supreme Court of the United States from 1888 to 1910, when Melville Fuller served as the eighth Chief Justice of the United States. Fuller succeeded Morrison R. Waite as Chief Justice after the latter's death, and Fuller served as Chief Justice until his death, at which point Associate Justice Edward Douglass White was nominated and confirmed as Fuller's replacement.
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.
United States v. Vaello Madero, 596 U.S. ___ (2022), was a United States Supreme Court case related to the constitutionality of the exclusion of United States citizens residing in Puerto Rico from the Supplemental Security Income program. In an 8–1 decision, the Court ruled that as Congress had been granted broad oversight of United States territories by Article Four of the United States Constitution, the exclusion of the territories by Congress from programs like Supplemental Security Income did not violate the Due Process Clause of the Fifth Amendment.
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.