Zombie Constitutionalism

Original Intent and Other Cult Classics

John Brigham, Political Science, UMass, Amherst
The Good Society (PEGS)
Symposium on the “Constitution of the Living Dead”
August 7, 2001

When Alexander Hamilton said, in Federalist #78 that the judiciary has “…neither FORCE nor WILL, but merely judgment” it was a clever thing deserving continuing reflection and analysis if not authority. Sometimes it makes sense to consider what the founding generation in the United States had to say. When, however, we consider whether putting a fellow citizen to death is “cruel and unusual” it makes less sense to look back two hundred and twenty five years to a very different America for guidance as to what counts as cruel. This was a place, after all, where you could be put to death for messing around with the name of the Christian god or encouraging slaves to revolt.

But, some scholars of the Constitution would command that we always go back to the Founding Fathers, perhaps the Federalist Papers in particular, in order to understand how to proceed in matters of constitutional interpretation and public policy. The idea is not simply that this influential generation might have something to offer but that its pantheon of patriarchs should rise, as if from the dead, and tell us how to understand our polity or how to proceed with our politics. Called “original intent,” this idea has become one of the classic approaches to constitutional interpretation. In some cases, however, it is elevated to a cult status that is really scary.

The Night of the Living Dead

Classics and cults are familiar in popular culture and this analysis, following the theme of the symposium, looks to a classic genre, the zombie film, and a particular movie, “The Night of the Living Dead,” in an effort to better understand the place of the doctrine of Original Intent in American Culture.

For many of us, the classic introduction to the zombie genre was Michael Jackson’s “Thriller” video from the album of the same name. (1) To some the most frightening things about the Jackson zombies were the way they danced and their contribution to the emergence of the music video and MTV. Zombie films are not a common form of horror movie in America although mummies, which have their own special place in American culture, would seem to be a subcategory of the zombie genre.(2) And one learns in exploring this subject that America has not generally been very receptive to the zombies, as compared to Europe, particularly Spain, where they apparently can’t get enough of corpses stumbling around looking for live flesh. But in Spain, where the mutilated body of Jesus is ubiquitous they can’t get enough of corpses or cadaver’s generally.

My web searching brought up the issue of the status of zombie films in the US and abroad and the always intriguing thought that if you liked “Night of the Living Dead” you also might like “Dawn of the Dead,” “Laughing Dead,” “Zombie Island Massacre” that is providing that you watch “Night” for its contribution to the zombie genre.(3)

If, on the other hand, you watched night for its comment on race relations, for which it is justly praised because it has a black protagonist who is solicitous but not obsequious to white people and who triumphs over evil rather than going down in flames as too often is the case in recent movies. In that case you might have also like “Raisin in the Sun” or “Lillies of the Field”.

Or, if you watched night because you were interested in cultural corollaries to conservative causes and the doctrine of Original Intent in Constitutional law you might have watched tapes of the Robert Bork or Clarence Thomas nomination hearings or even some of the later John Wayne movies like True Grit or Rooster Cogburn and the Lady.(4)

In the original 1968 cult classic by George A. Romero, Leonard Maltin’s video guide describes seven people barricaded inside a farmhouse “while an army of flesh eating zombies roam the countryside”. (5) Although there are no well-known actors in the movie and the production was decidedly low budget, the film has become a classic. Perhaps as Maltin and the advertising on the box proclaim, it is even a cult classic.

Indeed, the name of the movie was so familiar, even though I hadn’t seen it, that I thought it was probably made in the 30s or 40s, a period that says “classic” to me. But the late 60s appear to be long enough ago to take it back to the cinematic dark ages where films were still made in black and white and at least some people appear to have been frightened by a bunch of white people hobbling awkwardly about chasing (mostly) a black man and while woman while weird music plays in the background. Things have certainly changed.

“The Night of the Living Dead” is also a relatively early zombie (or living dead) movie. This genre, which we have indicated is not the kind of horror film Americans are usually drawn to, has unattractive creatures who disgust as much as cause a fright and are driven by a need to rejuvenate themselves by eating the flesh of the more recently dead. But it is the fact that in this genre the dead have returned from the grave, the literary fact that they consume live flesh replacing the contented and ordinary with their bizarre existence, and the fact that they lumber about usually in a twilight with expressionless faces that makes them seem so appropriate to considering the doctrine of Original Intent.

Original Intent

The connection here between “the living dead” and the constitutional doctrine of “original intent” is a matter of historicizing the jurisprudential record. Notions of living documents and the authority of “dead white men” have become a big part of our constitutional life lately. Ever since the American Constitution came alive in the 1930s, in response to the “dead” hand of the old men on the Supreme Court, there has been a life or death struggle over the status of the text and who deserved to be held out as an authority on it.

I first learned about the vital status of the Constitution from Prof. C. Herman Pritchett who is best known for the way he demonstrated the notion that judges are political. He had looked closely at the dissenting behavior on the Supreme Court and seen correlations between that and what he identified as the ideological orientations of the justices. Pritchett taught that the Constitution was “alive”.

I believe that he came to this conclusion because he reached academic maturity during the Roosevelt years, which followed the struggle over the status of New Deal legislation. The notion that the Constitution was a living document was developed in response to those on the Supreme Court and their academic advisors who claimed that the document was an unchanging instrument that should be set against the forces of radical change. Edward S. Corwin had been one of Pritchett’s predecessors in teaching constitutional law and he explored the Higher Law backgrounds of American Constitutional law.

The New Deal liberals held their own on the Supreme Court from 1937 until the early 1970s. During this time, the Bill of Rights was incorporated into state criminal law, legal segregation was abolished and abortion was legalized. For a period, even the Death Penalty was held to be unconstitutional. The liberals had brought the Constitution to life and they had given a better life to many Americans along with it. They had also made the text, particularly the Bill of Rights, pretty attractive to the rest of the world.

Originalism, or the doctrine that the dead should speak to the living about matters constitutional, emerged in response to that fruitful, liberal period. It was a backlash that began with the administration of Richard Nixon. The doctrine that constitutional meaning should come from the text as it was written or at least ratified spread to the judiciary and the law schools and elevated the status of the ideas and predispositions of the men who gathered in Philly in 1787 to reconstruct the American polity.

Strauss and Reagan

An important dimension of this theme of coming back from the dead involves Leo Strauss and his followers. The creators of Original Intent were of course not the founders but more contemporary figures that sought to enlist the dead in their causes. Adding to the drama, its scary to note that during the period of liberal life at the Supreme Court a group of dissident believers were left to wander in the academic wilderness because they were frighteningly conservative and their methodology was dramatically at odds with the dominant traditions in the academy. From this wilderness the Reagan Administration brought them to life where they played a central role in rethinking the judicial project on a grand scale. This was done with reference to the central importance of the text and beyond that to issues of interpretation and life. These were the Straussians and they presented an important challenge to the living Constitution.

Prof. Leo Strauss (1899-1973) was an émigré from Europe who came to the United States before World War II and, like Pritchett, taught most of his life at the University of Chicago. Though in some sense there is a “living dead” quality to the émigrés who fled the complex and thoughtful cultures in Europe as they succumbed to fascism, the second world war in a generation and the holocaust and came to America, the results were so stunning that one might say it was the zombies of mid twentieth century America who benefited from their presence. Its easy to think of the Straussian struggle against relativism and for a kind of interpretive certainty as analogous to the happy state that ordinary people find themselves in before coming to terms with a plague of zombies.

That is exactly the perspective of the second generation students of Strauss who would not, I believe, yet take on the cult moniker “Straussian” but for whom identification with the leader and development of characteristic approaches to matters of theoretical interest was clearly beginning to be cultish. This second generation, Joseph Cropsey, Martin Diamond, Herbert Storing, and Alan Bloom, among a surprisingly large group of other, began to take on a certain zombie quality. They repeated the mantra ‘the meaning is in the text’ for all who would listen and taught political theory as if everything of importance had bee said before, almost always by some dead white male. In fact both the male bonding and the dead texts would seem a little out of it if that was not entirely the point.

Walter Berns went on to prominence in Political Science and transcended the marginal life or Chicago ghetto that was the lot of many of his contemporaries. He was a hard drinking, smoking conservative who gave the religious new right fits along with liberals. He played cards with influential conservative jurists throughout the 1980s, including Supreme Court Justice Antonin Scalia as he defended the death penalty and his belief that there could be certainty in the academy.

The third generation came into the academy struggling and reached maturity running the government in one of the most amazing intellectual coups of all time. Gary McDowell, John Agresto, led this group for a short time head of the National Endowment for the Humanities and then President of St. John’s College in Santa Fe and figures of lesser distinction. I never know how to count George Anastaplo whose famous struggles over constitutional freedom in the immediate post World War II period place him at least in the second generation but whose youthful enthusiasm and failure to complete his dissertation made him seem perennially like a graduate student with the status of whatever the current generation seemed to be.(6)

It was McDowell who became the ideologue of the Justice Department and eventually led Edward Meese to offer the embarrassingly interesting observation that the Constitution is not what the judges say after all but what is written in the text. Clearly the cultivation of the bodies inhabiting the Reagan White House was made easier by the fact of relatively vacuous spaces above the collective shoulders at the top. I’m not sure about Meese but its clear that the President had other things on his mind short of thinking about where meaning comes from. Indeed, his effectiveness clearly depended on that sort of straightforward engagement on the level America likes and a perspective that is easy to find refreshing.

Being resurrected by the Reagan presence in the White House was a remarkable development and far more interestingly significant than we might have imaged possible.

The Bork Nomination

The living dead of original intent was also “personified” by Robert Bork, an unlikely media star who appeared himself to be a sort of embalmed character. Bork was a strange nominee. His red hair stood somewhat awkwardly and his goatee gave the judge an odd, slightly manic look. Given the theme of this essay, I am tempted to make connections between Bork and the living dead of our subject but that would not be quite accurate.

In addition, and adding to his links to death, is the fact that he was empailed on the privacy doctrine. Ronald Reagan nominated Bork in the early summer of 1987. Hearings would be held after Labor Day.

This particular summer marked the 200th Anniversary of the period when the Constitution was written in a closed room in Philadelphia. During the Bicentennial Summer, the scattered legatees of the New Deal period came together for an increasingly rare public performance, rising from the disarray of the 1960s, to keep Bork from taking a seat on the Supreme Court. The success of the denial of this opportunity, which the jurist gave the appearances of believing, was rightfully his should not have been surprising since liberalism is a dominant article of faith. It’s just that liberals themselves had been remarkably inept in establishing their influence in matters of public policy.

One of the interesting aspects of the hearings was that the lead commentary came; some would argue, from Edward Kennedy, the senior senator from Massachusetts. Senator Kennedy has had a number of lives himself and given the legitimate concern we have for the life of a Kennedy continuing majorities in Massachusetts are quite pleased.

I also like to think that the spirit of Watergate also came to life during the hearings. In this view, Bork was held accountable for having stepped in to do the dirty work requested by the Nixon Administration and fire Special Prosecutor Archibald Cox. By that time Cox was quite old himself and somewhat hard of hearing but he remained an Olympian presence for the way in which he sensed that history would judge him favorably. Asked to comment on Bork at a session organized by Clemson University, Cox simply smiled.

What we can say with assurance is that the doctrine of originalism, the doctrine of the living dead, along with a dose of even more bizarre “literalism” brought him down. When asked whether he believed the constitution protected a right to privacy, Bork’s technical, juridical answer that it did not could not carry the day.

It is one thing, it seems, to argue in the halls of academe, that the word privacy does not appear in the constitution and that indeed it is a relatively new development in American law. It is quite another to say, in public, that the constitution does not protect a right to privacy. This zombie was not going to make it to the Temple of Karnack.

The Liberal Dead

In the end and in part because of the success of the conservative onslaught, there are liberals that appear to be among the living dead. Indeed, the conservatives have been so successful that they have altered the constitutional landscape. And, from lives in the wilderness they have come to dictate the terms of constitutional politics in major institutions from the Supreme Court to the Harvard Law School. Or, maybe they have translated their consciousness and p assed on a spirit and consciousness to others.

Two examples of these victims, the liberal dead, are worth noting. The first in time and tragic state are the liberal constitutionalists. These are scholars whose identity was formed by the New Deal Court. They either came to consciousness during the period or learned from the myriad who did and they look to appellate litigation as an agent for social change in America. They are artificially maintained by tenure and jobs that allow them to continue to think in the categories of the 1960s. Now, I’m thinking here of the really dead, not the reconstructed who have seen in “the myth of rights” and opportunity for progressive politics.(7)

The liberal dead, in the end, are the ones who one would think would be nearing retirement shortly. One could still teach liberal constitutionalism with a straight face as late as 1973 and if they completed a dissertation then at around 30 years of age they would be nearing sixty-five now. Of course, you can’t expect scholars to notice institutional change of this sort right away and given the scholarly time lag perhaps its fair to imagine that at least until William Rehnquist was joined by Antonin Scalia in the mid 80s liberal hope in the Court still made some if diminished sense. Then the youngest of these liberals would be in their fifty’s and thought still teaching not adding to the literature as they once did. For them liberalism still resides in the hope of a Supreme Court populated by New Deal constitutionalists and although if pressed they will acknowledge that this is no longer the case they tend to act as if it is.

There are also the leftists of a Critical Legal Studies bent who are also limited in their conception of constitutional interpretation. During the 1980s they turned away from litigation strategies in favor of the insular world of the American law school. For a decade they allowed a group of jurists with the only sinecure more substantial than theirs to dictate what the Constitution means and narrow the range of their politics.

This wasn’t only because of who was on the courts, they also had strange notions of where to look for inspiration on radical social change in America. They invariably take meaning from some other culture, usually Europe or the Third World. This was the case of the deconstructionist bent they tried to offer as a worthy successor to the homegrown realism that was offered as a liberal critique of academic legal thought in the preceding generation. They produced effete theories that one might not expect on reflection to be likely to take root in American soil.

As in the movie, the heroes are the activists from labor, poverty and movements of people of color who work with what they have and refuse to barricade themselves in a room with no exit.

Notes

1) Issued in 1982, the video received an MTV Music Award in 1984 and the video “The Making of Thriller” won a Grammy in 1985.

2) From Boris Karloff to Brendan Fraser mummies have been more often a hit in the USA, perhaps because their rotting flesh is all bandaged up.

3) See also Plan 9 from Outer Space, Re-Animator, Blood Feast, Blood Sisters, Bloodsucking Freaks, Children Shouldn't Play With Dead Things.

4) John Wayne was a heroic figure in post World War II America who identified with various conservative causes. In his last movies Wayne played aging cowboys who came back to fight again. President Ronald Reagan ended his eulogy for Wayne quoting him in the The Alamo: "There's right and there's wrong," Duke said. "You gotta do one or the other. You do the one and you're living. You do the other and you may be walking around but in reality you're dead." Reader’s Digest published the eulogy in 1979.

5) New York: Penguin, 1999: 973. Romero concentrated in scary movies but none stand out although he wrote the script for the 1990 sequel and acted in Silence of the Lambs. Although the failure of the sequel is interesting from a jurisprudential point of view I couldn’t bring myself to rent it.

6) Mark Blitz, “Straussians in Government,” in Kenneth L. Deutsch and John A. Murley, eds. Leo Strauss, the Straussians, and the American Regime Lanham, MD: Rowman and Littlefield, 1999.

7) Not for instance Michael McCann, Stuart Scheingold, Helena Silverstein or not certainly myself.

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