Original Intent and Other Cult Classics

When Alexander Hamilton said, in Federalist #78 that the judiciary has ". . . neither FORCE nor WILL, but merely judgment" it was an observation deserving the continued analysis and reflection it has generally gotten. In cases like this it makes sense to consider what the founding generation in the United States had to say. Clearly the generation that wrote the Constitution, and the ones who put it into practice, often merit our attention. When, however, we are asking whether putting a fellow citizen to death is "cruel and unusual," it intuitively seems to make less sense to look back over two hundred years for guidance as to what is cruel. For one thing, this early America was a place where you could be put to death for messing around with the name of the Christian god or encouraging slaves to revolt.

Some scholars of the Constitution believe that we ought always to consult the Founding Fathers in order to understand how to proceed in matters of constitutional interpretation and public policy. Called "original intent," this idea has become an important approach to constitutional interpretation. It holds not simply that the founding generation might have something to offer but that its pantheon of patriarchs should rise, as if from the dead, and instruct us in how to understand our polity in the 21st Century. In the case of many conservative constitutionalists, the Founders have achieved cult status. When we venerate great age without regard to all that has changed I think that we have a problem. The revivication of these guys from the 18th Century without regard to how moldy they have become puts "original intent" in the zombie genre.

After discussing the zombie genre and "The Night of the Living Dead," I will turn to the Straussian jurists of the Reagan Administration and the strange case of Robert Bork to develop the genre for constitutional law. The conclusion looks at the Liberal Dead of the academy, including the Critical Legal Studies Movement and their failure to engage effectively. There is much more to do but this essay is limited in scope and cannot take up all the gory details suggested by the theme.

The Night of the Living Dead

Classic kinds of films and films with cult status are familiar in popular culture, and my analysis, following the theme of the symposium, looks to a classic genre, the zombie film, and a particular movie, "The Night of the Living Dead," in an effort to better understand the place of the doctrine of "original intent" in American culture. It is not that many of us often watch zombie movies, but when you think about it, the parallels between the zombie genre and the cult of originalism turns out to be fascinating.

Some of us were reintroduced to zombies or the "living dead" by Michael Jackson's "Thriller" video from the album of the same name. ¹ This work was not frightening in the traditional sense but there were frightening things about the Jackson zombies. One thing was the way they danced and there was the contribution to the emergence of the music video. That was pretty scary. One learns, in exploring this subject, that America has not generally been very receptive to zombies, although mummies, a subcategory, ² get some attention every few years. This is as compared to Europe, particularly Spain, where they apparently can't get enough of corpses stumbling around searching for a bit of live flesh. In Spain, where the mutilated body is a ubiquitous religious icon, people seem fascinated by corpses or cadavers generally.

It is pretty clear, if you search the Web, that zombies are bigger in Europe than in the United States. Europe, of course, has a long history and the dead hand of the past can get pretty intense there. Web searching also lets you compare your interests with those of others who might be looking into zombies One search I did suggested the always intriguing idea that if I liked "Night...