The Constitution After Death

Abstract

From mandating separate and unequal gravesites, to condoning mutilation after lynchings, to engaging in cover-ups after wrongful police shootings, governmental actors have often degraded dignity and perpetuated stigma in death. This Article offers, for the first time, an account of the constitutional law of the dead and takes aim at a legal rule that purports to categorically exclude the dead from constitutional protection. The rule rests on two faulty premises. The first is that the dead are incapable of being rights-holders, and therefore cannot be deprived of such rights. The second is that there are no sound policy reasons for recognizing constitutional rights of the dead. The first premise is undone by a robust common law tradition of protecting the dead’s dignitary interests and testamentary will. As for the second premise, posthumous legal rights can serve important functions. Such laws can promote uniquely human pursuits by: protecting individuals’ memory; enforcing their will; and accommodating their diverse spiritual beliefs after death. Posthumous legal rights can also foster equality by shielding against the stigma and terror that have historically accompanied the abuse of the dead. Moreover, posthumous rights can remedy and repel the “legal estrangement” that the degradation of marginalized groups’ memories can foster. The Constitution need not remain silent when governmental actors engage in abusive or unequal treatment in death. Understanding the dead as constitutional rights-holders opens the door to enhanced accountability through litigation and Congressional enforcement of the Reconstruction Amendments. Beyond that, understanding the dead as rights-holders can influence the narratives that shape our collective legal, political, and cultural consciousness. As the nation struggles with how to understand intergenerational mass horrors that still haunt, recognizing the dead as legally cognizable beings of memory, will, and spirituality can enrich these debates, and enliven our imaginations.