The Good Society 11.2 (2002) 8-12
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The Persistence of the Constitution
Keith E. Whittington
I must admit to being a fan of the "living dead" movies and their various progeny. 1 Within the subgenre, the corpses of the dead are reanimated through the influence of contagion, radiation, or scientific intervention. These zombies then ravenously stalk the living, often creating a new generation of zombies in the process. Unlike the undead of the vampire mythos, the living dead are neither beautiful nor sophisticated. The living dead lumber through the landscape in an arrested state of decomposition, falling apart and clearly dysfunctional and yet somehow still ambulatory. Generally inarticulate and dimwitted, the living dead are guided by irrational hunger and consume the living. Having risen from their graves, the living dead crowd the scene, attacking en masse, filling every possible escape route, and blocking progress at every turn. In the movies, the dead hand of the past weighs very heavy indeed.
For some, the U.S. Constitution evokes similar nightmares. It shambles onward, completely out of its own context and barely coherent, and yet refusing to die. It imposes itself on the living, mindlessly closing off options and privileging its own unnatural priorities. James Madison and his brethren loom before us when they should be safely behind us. Through the instrument of the Constitution, the founders rule us from beyond the grave.
Are we terrorized by a tyranny of the dead? I do not believe that it is fruitful in either descriptive or normative terms to regard the written Constitution as a form of "temporal imperialism" that allows its authors to "dictate, even when their bodies are silent in death." 2 In this essay, I want first to ameliorate the problem of the Constitution of the living dead and then to briefly defend an approach to constitutional interpretation that privileges original intent. Although the latter directs judges to look to the language and intentions of persons long dead, it does so out of respect for the living, not out of any special authority of the dead.
It should be emphasized that the Constitution is not quite the decrepit zombie that it is sometimes made out to be. We do not live with the same Constitution that was handed down by the founders in the late eighteenth century. Of course this is true in the obvious sense that the Constitution has been amended several times since the founding. Practices that we would no longer find tolerable, such as slavery and the exclusion of women from the political process, and infirmities that we are not willing to accept, such as (arguably) the absence of a federal income tax or the lack of clarity in presidential succession, have been eliminated over time in ways that are both explicit and perfectly consistent with the original constitutional design.
It is also true in a less obvious sense. Our constitutional system, as well as our constitutional text, looks very different than the one imagined by the framers. For one thing, the constitutional machinery did not work as they expected. Influenced by the republican political ideology of the time, for example, the founders were highly skeptical of the value of political parties or factions, and they hoped that the political system that they designed would discourage the growth of parties and limit their influence if they did arise. 3 Instead, organized political factions arose almost immediately. There was no consensus over the ends and means of the public good, and organization proved an efficient mechanism for making policy and staffing the government. Similarly, the founders thought population growth would occur in the South rather than the North, enhancing the South's influence in the House of Representatives and securing political protection for its peculiar institution of slavery. 4 Instead new citizens flowed into the free states of the North and Northwest. The South was increasingly isolated politically and increasingly reliant on countermajoritarian checks to protect its vital interests. Democracy and slavery, and therefore union, proved to be contradictory rather than mutually...