Having taken a breather from blogging to get some writing done, I will finish my entries on Black Originalism in the next couple of weeks. For this post, however, I want to explore the idea of the statutory anti-canon. I explain this below, but I am particularly interested in ideas readers have for such a list, so please post a comment if you have one.
The concept of an anti-canon in constitutional law was developed a few years back (by Richard Primus, Jack Balkin and Sanford Levinson, among others, and more recently by Akhil Amar and Jamal Greene). The basic thrust is that there are key constitutional law cases that are so reviled that they are the antithesis of what judges, scholars, and the public think constitutional law should do. The obvious members of this group—cases Akhil Amar described as sitting in the last circle of constitutional hell—are Dred Scott, Plessy, and Lochner. When a justice or scholar wants to ramp up criticism of an opposing constitutional position, they show how it is the same as one, two, or all three of these cases.
What I am wondering is whether some federal statutes might qualify for such a dubious distinction. Obviously an anti-canon of statutes will have different qualifications than the anti-canon of cases. And I know I am leap-frogging the question of whether there should be a “canon” of statutes, although I think one could explore that productively too.
To get this started, I list below the fold my own candidate (hint: it is from the 19th century). My operating parameters are that the statute must have been repealed by Congress or overturned by the Supreme Court, that it implemented or otherwise raised constitutional issues, that it faced significant opposition not only when passed but also when implemented, and that later generations came to a consensus view that the legislation was contrary to its fundamental values/commitments. Note, however, that while there may be agreement that the statute was wrong, the reasons for why it was wrong may vary quite a bit (as is true of anti-canon cases). In part these parameters are meant to focus on statutes that are now widely viewed as wrong (and not on current statutes that people just don’t like – I leave that to other blogs and bloggers). And the parameters are loose guides only. So with that, my entry is . . .