Zombie State Constitutional Provisions

Abstract

On November 3, 2020, voters in the state of Alabama approved the opaquely named “Authorize Legislature to Recompile the State Constitution Measure.” As described by the state’s Fair Ballot Commission, the ballot measure would permit the Alabama legislature to “(1) remove racist language” and “(2) remove language that is repeated or no longer applies,” among other things. The racist language in question? In one portion, the constitution still prescribed that “separate schools shall be provided for white and colored children.” Another section, though technically repealed by another amendment in 2000, remained in place memorializing that the “legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.” Though both these provisions were deemed unenforceable under the federal Constitution following blockbuster Supreme Court decisions, the provisions remained on the books. And even in 2020, the measure to eliminate this language passed only by a margin of 67% to 33%. Proposals to remove the language had twice failed since the year 2000—although the vocal opponents of those proposals objected allegedly not to preserve the language itself, but rather on the grounds that revising the language would have various unintended consequences for taxation or school funding.

Alabama’s language may have lasted longest, but many other state constitutions contained similar provisions well into recent history. Today’s state constitutions remain full of sections that can be characterized as “zombie provisions”—clearly or arguably unenforceable clauses and amendments that stick with us, toward sometimes unclear effect and with potentially harmful consequences. The “zombie” phenomenon is becoming more well known in an adjacent context, although zombie-ism appears with (perhaps alarming) frequency in different strands of legal scholarship. Pertinent for our purposes, both judges and scholars have used the term “zombie laws” or “zombie statutes” to describe legislation rendered unenforceable by a constitutional decision or other laws, but that nevertheless “remain[s] on the books.” Even more recently, several scholars have identified judicial opinions as another area pervaded by the undead. Despite widespread rejection of disturbing precedents on topics ranging from slavery to women’s rights, these “artifacts from morally unrecognizable eras” persist and resurface in modern case law, raising questions about whether they should ever have precedential value, the harms continued invocation of these decisions may perpetuate, and how and whether courts should repudiate them.

This Essay canvasses the zombie phenomenon in modern state constitutions. Although there are strong parallels to zombie legislation, state constitutions deserve their own treatment. To be sure, in many cases, subject matter addressed in one state’s code can be found in a different state’s constitution, like the multitude of amendments in Alabama’s constitution governing the playing of bingo games in various counties. And like statutes, direct democratic participation shapes the content of many state constitutional provisions. But as sources of law, state constitutions exist somewhere on a spectrum, with statutes at one pole and the federal Constitution on the other. As constitutions, these state documents are meant to apply for long durations and are subject to particular amendment procedures, making them more resistant to change than the average statute (though certainly not as fixed as the federal Constitution). These similarities and differences merit separate discussion of the zombie provisions of state constitutions and what, if anything, should be done about them.

This Essay proceeds in three parts. First, it uses the state constitutions to examine the ambiguities in what counts as a “zombie,” identifying both core and more peripheral cases, as well as some constitutional provisions that do not quite qualify as zombies but nonetheless seem potentially worrisome. Next, it considers the harms that zombie provisions may cause, exploring these harms alongside those identified in related contexts ranging from covenants running with land to unenforceable or unenforced statutes. The final Part considers in detail both the arguments for and against removal and the different methods by which zombie provisions might be rejected or removed. Since 2020, there have been several efforts in individual states to remove currently unenforceable state constitutional provisions. This Essay is thus a timely exploration of what makes these provisions problematic as well as some of the nuanced and difficult questions involved in any decision to neutralize them.

Keywords: state constitutions, legal history, constitutional conventions, zombie laws, unenforceable provisions, covenants, property, constitutional law