The Undead Constitution
Policy Review, No. 157, pp. 76-82, October-November 2009
8 Pages Posted: 15 Mar 2010 Last revised: 12 Sep 2016
Date Written: 2009
Most living constitutionalists prefer to retain the original constitutional text but infuse it with modern-day ideals. So living constitutionalists aim to establish not a "living" but a zombie Constitution; they want to take the corpse of constitutional text and reanimate it with new principles in every generation. But this Constitution is at war with itself. Like Frankenstein’s monster, half dead and half alive, it wanders in the wilderness never finding complete acceptance. Call this "the undead hand problem": The living Constitution is always an unstable mix of living and dead elements, chosen according to the preferences of the assembler.
A review of Cass R. Sunstein, A Constitution of Many Minds: Why the Founding Document Doesn't Mean What It Meant Before (Princeton, 2009).
Keywords: living constitution, originalism, condorcet, dead hand problem
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