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Plessy v. Ferguson and the Anti-Canon, 39 Pepperdine Law Review 75 (2011)


In the spirit of the symposium generally, I want to step back a bit and

not limit myself to Plessy v. Ferguson, which, frankly, is a turkey shoot.

It's easy. Barry McDonald's got a very difficult job to defend it. Let me

try to pull the camera back and talk more generally about what these cases

that we're talking about today have in common. To do that, I want to

comment on what we might think of as the canon and the anti-canon of

Supreme Court cases. Here I build upon thoughtful work by, among others,

Professor Richard Primus. In so doing, in talking about canon and anticanon,

I would like to preview my new book that's coming out, America's

Unwritten Constitution, because I'm going to be building on some of these

ideas. It is a complement to the last thing that I did, America's Constitution:

A Biography, that tries to take the reader through the written document, the

canonical text. The Constitution is very compact. I try to take the reader

really from start to finish: from the Preamble through every article, and then

through every amendment. The thought of the new book is that the

Constitution is not all that we believe it to be. It proclaims itself the

supreme law of the land, and yet all of us understand that there is more to it

than that. There is also a canon and an anti-canon of decisions.

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