The Undead Constitution
“Thomas Jefferson, whom Tocqueville called ‘the most powerful apostle that democracy has ever had,’ would not countenance any sort of permanent constitution, even an evolving one. He insisted that every constitution must naturally expire after 19Â years. ‘If it be enforced longer, it is an act of force and not of right,’ wrote Jefferson. ‘The earth belongs always to the living generation…the dead have neither powers nor rights over it.’
Most living constitutionalists do not go that far, preferring to retain the original constitutional text but infusing 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.”
—”The Undead Constitution,” Policy Review
