Constitutional Interpretation and Zombie Provisions

Abstract

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. While these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in the text of the United States and state constitutions.

This Article addresses a danger of these zombie provisions that has, thus far, been overlooked—the prospect that zombie provisions may influence the interpretation of still-living constitutional provisions. The United States Supreme Court and the vast majority of states require contextual analysis when interpreting constitutions—requiring that provisions be read in light of the document as a whole rather than in isolation. Many constitutional rights guarantees are written in an abstract, undefined manner. And numerous state constitutions include broad, non-exhaustive guarantees of individual rights. These provisions demand clarification through context, and it is here that zombie provisions may continue to live on by limiting the scope of equal protection, due process, and individual rights guarantees. For example, how much protection can a set of abstract inalienable rights truly provide to LGBTQ people if it appears alongside a constitutional provision restricting the definition of marriage to a union of one man and one woman?

While this problem would be best solved by removing zombie provisions, I argue that an alternate rule of avoidance may mitigate these provisions’ interpretive impacts. Courts may continue to engage in contextual analysis, but should actively exclude zombie provisions from consideration when doing so. Doing so sheds light on these provisions’ invalidity and prevents them from influencing the interpretation of still-living constitutional provisions.

Keywords: constitutional law, state constitutional law, constitutional interpretation, zombie law, marriage, sex discrimination, freedom of religion, constitutional amendment

JEL Classification: K1, K19