THE CONSTITUTION AFTER DEATH - Columbia Law Review

From mandating separate and unequal gravesites, to condoning mutilation after lynchings, to engaging in cover-ups after wrongful police shootings, governmental actors have often degraded dignity in death. This Article offers an account of the constitutional law of the dead and takes aim at a legal rule that purports to categorically exclude the dead from constitutional protection. The rule rests on two faulty premises. The first is that the dead are incapable of being rights-holders. The second is that there are no sound policy reasons for recognizing constitutional rights after death.

The first premise is undone by a robust common law tradition of protecting the dead’s dignitary interests and testamentary will. As for the second premise, posthumous rights can promote human pursuits by protecting individuals’ memory, enforcing their will, and accommodating their diverse spiritual beliefs. Posthumous legal rights can also foster equality by shielding against the stigma and terror that have historically accompanied the abuse of the dead.

The Constitution need not remain silent when governmental actors engage in abusive or unequal treatment in death. Understanding the dead as constitutional rights-holders opens the door to enhanced accountability through litigation and congressional enforcement of the Reconstruction Amendments. Beyond that, understanding the dead as rights-holders can influence the narratives that shape our collective legal, political, and cultural consciousness. As the nation struggles with how to understand intergenerational mass horrors that still haunt it, recognizing the dead as legally cognizable beings of memory, will, and spirituality can enrich these debates, and enliven our imaginations.

The full text of this Article can be found by clicking the PDF link to the left.

* Associate Professor, Emory Law School. I am tremendously grateful for the feedback and guidance received from Bradley Arehart, Rick Banks, Will Baude, Dean Mary Anne Bobinski, Dorothy Brown, Erica Bruchko, Emily Buss, Adam Chilton, Deborah Dinner, Mary Dudziak, Martha Fineman, Meirav Furth-Matzkin, Daniel Hemel, Joan Heminway, Todd Henderson, Steven Heyman, Timothy Holbrook, Aziz Huq, Daniel LaChance, Alison LaCroix, Genevieve Lakier, Matthew Lawrence, Kay Levine, Jonathan S. Masur, Jason Mazzone, Richard McAdams, Dwight McBride, Eric Miller, Melissa Murray, Martha Nussbaum, Mary Ellen O’Connell, Mar Kidvai Padilla, Charlie Paine, Randal Picker, John Rappaport, Alix Rogers, Jennifer Rothman, Robert Schapiro, Margaret A. Schilt, Fred O. Smith, Sr. (Dad), Lee Smith (Mama), Lior Strahilevitz, Alan Trammell, and Sasha Volokh. Thanks are also due to participants in the University of Arkansas-Fayetteville Law School Colloquium, the University of Chicago Law Faculty Work-In-Progress Colloquium, the Emory Law School Faculty Colloquium, the University of Illinois Constitutional Law Colloquium, Loyola Law School (LA) Faculty Colloquium, the Stanford Law School Race and the Law Colloquium, and the University of Tennessee Faculty Colloquium. Excellent research assistance was provided by Richard Awopetu, Diana Benton, Shanique Campbell, Natalie Cascario, Jay Khuti, Marnier LeBlanc, Jenny Li, Michael Longdeck, Allen Page, Mara Peng, Devon Sherrell, Tyler Yeagain, Avi Zemel, and Sharika Zutshi. The library staffs of the D’Angelo Law Library of the University of Chicago, the MacMillan Law Library of Emory University, and the Robert W. Woodruff Library of Emory University were also exceptionally helpful.

Introduction

It is the dead,
Not the living, who make the longest demands:
We die for ever [sic]. 1 Sophocles, Antigone 5 (Dudley Fitts & Robert Fitzgerald trans., Harcourt, Brace & Co. 1st ed. 1939).

[L]ife’s veneration of life does not end at the grave; death does not extinguish organized society’s reverence for human dignity or the law’s recognition of all aspects of life’s experience; nor does it diminish protection against life’s degradation. 2 Tachiona v. Mugabe, 234 F. Supp. 2d 401, 438 (S.D.N.Y. 2002) (Marrero, J.).

The Washington Post called the conspiracy “Alabama’s ‘Watergate.’” 3 Myra MacPherson, Alabama’s ‘Watergate’, Wash. Post (Apr. 3, 1977), https://www.washingtonpost.com/archive/opinions/1977/04/03/alabamas-watergate/94450203-adc3-4ba1-8805-fec5ebd456c9/?utm_term=.93f0c4499a22 (on file with the Columbia Law Review). On the afternoon of December 2, 1975, a police officer in Montgomery, Alabama, shot and killed a thirty-two-year-old named Bernard Whitehurst, wrongly suspecting that he had robbed a local store. 4 Id. Officers contended that the shooting was an act of self-defense and corroborated this account with a gun they claimed was recovered from the scene. 5 Id. But in the months that followed, an investigation revealed that the police planted the gun near Whitehurst’s dead body. 6 See Foster Dickson, Closed Ranks: The Whitehurst Case in Post-Civil Rights Montgomery 47–53, 84–85 (2018) (detailing evidence of the cover-up); MacPherson, supra note 3 (same). An officer had, in fact, shot an unarmed Black father in the back and engaged in a bald cover-up in concert with a wide range of local officials. 7 See MacPherson, supra note 3. These facts, and the policies that enabled them, resulted in the resignation of the mayor, the police chief, and eight police officers. Id. In light of these facts, Whitehurst’s family filed a federal suit, contending, among other things, that the cover-up violated Whitehurst’s constitutional rights. 8 Whitehurst v. Wright, 592 F.2d 834, 840 (5th Cir. 1979). That legal claim met a roadblock, however. Whitehurst was dead at the time the conspiracy commenced. And the dead, a federal court held, lack constitutional rights. 9 Id.

Subsequently, over the past four decades, American courts have generally concurred that the dead do not retain constitutional rights that the living are bound to respect. 10 See infra notes 11–14. If, however, a civil rights claim accrues before an individual’s death, the “survival” of a Section 1983 claim is determined by state law. See Robertson v. Wegmann, 436 U.S. 584, 588–90 (1978); see also 42 U.S.C. § 1988(a) (2018) (instructing courts to turn to state common law in federal civil rights actions where federal law is “deficient”). These courts have reasoned that “[a]fter death, one is no longer a person within our constitutional and statutory framework, and has no rights of which he may be deprived.” 11 Whitehurst, 592 F.2d at 840; see also Furber v. Taylor, 685 F. App’x 674, 679 (10th Cir. 2017) (“[T]he civil rights of a person cannot be violated once that person has died.” (internal quotation marks omitted) (quoting Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 749 (10th Cir. 1980))), cert. denied, 138 S. Ct. 2660 (2018); Hillspring Health Care Ctr., LLC v. Dungey, No. 1:17-CV-35, 2018 WL 287954, at *9–10 (S.D. Ohio Jan. 4, 2018) (“As a deceased person has no civil rights that may be violated, Plaintiff cannot maintain the § 1983 claims against Defendants that are based entirely on actions occurring after [decedent’s] death.”). Many of these cases involve facts like the Whitehursts’, in which police officers are alleged to have unconstitutionally lied, planted evidence, or otherwise covered up shootings by police. 12 See, e.g., Guyton v. Phillips, 606 F.2d 248, 250 (9th Cir. 1979) (dismissing claims of a police cover-up because “[a] ‘deceased’ is not a ‘person’ for the purposes of . . . [§ 1983], nor for the constitutional rights which the Civil Rights Act serves to protect”); Kellom v. Quinn, No. 17-11084, 2018 WL 4111906, at *10 (E.D. Mich. Aug. 29, 2018) (dismissing a cover-up claim because “the conspiracy did not begin until after the decedent’s death”); A.A. ex rel. Grady v. City of Florissant, No. 15-CV-523, 2015 WL 5561830, at *4 (E.D. Mo. Sept. 21, 2015) (rejecting a claim that officers conspired to make a death look like a suicide because the conspiracy “occurred after [his] death”); Estate of Conner ex rel. Conner v. Ambrose, 990 F. Supp. 606, 619 (N.D. Ind. 1997) (rejecting a claim that police officers planted a gun on a decedent because “[i]n order to allege a conspiracy to violate the civil rights of a person, plaintiffs must allege that there was an agreement made by the defendants while the decedent was still alive”); Love v. Bolinger, 927 F. Supp. 1131, 1136 (S.D. Ind. 1996) (“After death, one is no longer a person within our constitutional and statutory framework, and has no rights of which he may be deprived.” (internal quotation marks omitted) (quoting Whitehurst, 592 F.2d at 840)); see also Ford v. Moore, 237 F.3d 156, 164 (2d Cir. 2001) (“Even if there were a viable claim against Moore for conduct after Ford’s death, the death would have extinguished any claim of Ford’s.”); cf. Silkwood, 637 F.2d at 749 (alleging a posthumous cover-up of an attempt to thwart labor activities). Courts have also dismissed cases in which families or estates have argued that state officials violated equal protection by engaging in disparate treatment of decedents on account of race or alienage. 13 See, e.g., Judge v. City of Lowell, 160 F.3d 67, 76 (1st Cir. 1998) (dismissing a suit alleging “a double standard whereby deaths of black persons that occur under suspicious circumstances are treated differently (i.e., less seriously) than deaths of white persons under similar circumstances”), overruled on other grounds by Educadores Puertorriquenos en Accion v. Hernandez, 367 F.3d 61 (1st Cir. 2004); Cook v. City of Dallas, No. 12-CV-03788-P, 2014 WL 12820619, at *6 (N.D. Tex. Mar. 25, 2014) (alleging disparate treatment during 911 calls); Martin v. Unknown U.S. Marshals, 965 F. Supp. 2d 502, 543 (D.N.J. 2013) (citing Silkwood, 637 F.2d at 749; Kollar v. Lorier, 669 A.2d 845, 851 (N.J. Super. Ct. App. Div. 1996)) (dismissing a suit alleging racially discriminatory autopsy practices because “a person’s constitutional rights cannot be violated after death”); see also Cole v. Oravec, No. CV-09-21-BLG-SEH-CSO, 2014 WL 2918314, at *1 (D. Mont. June 26, 2014) (rejecting claims that a murder victim’s equal protection rights had been violated, but permitting claims that victims’ rights statutes were being enforced differently for survivors), adopted by No. CV 09-21-BLG-SEH, 2014 WL 3667918 (D. Mont. July 22, 2014), aff’d in part, rev’d in part, 700 F. App’x 602, 604 (9th Cir. 2017). Other dismissals involve estates arguing that dead persons retain some privacy rights in death, such as the right against the indiscriminate public release of medical records. 14 See, e.g., Keller v. Finks, No. 13-03117, 2014 WL 1283211, at *6 (C.D. Ill. Mar. 31, 2014) (“[A] deceased person has no rights within our constitutional scheme.”); State v. Powell, 497 So. 2d 1188, 1190 (Fla. 1986) (“[A] person’s constitutional rights terminate at death.”). Federal courts have routinely rejected these claims on the grounds that the dead lack constitutional rights.

This Article offers, for the first time, an account of the constitutional law of the dead and takes aim at the legal rule that purports to categorically exclude the dead from America’s constitutional tradition. 15 For academic commentary on the legal interests of the dead, see generally Lawrence M. Friedman, Dead Hands: A Social History of Wills, Trusts, and Inheritance Law (2009) (examining the history of the law of posthumous property transfer and exploring what that history teaches about the changing nature of human relationships); Don Herzog, Defaming the Dead (2017) (arguing for a broader set of laws banning the defamation of the dead); Ray D. Madoff, Immortality and the Law: The Rising Power of the American Dead (2010) (assessing the legal interests of the dead and arguing that these legal protections have unduly increased over time); Kirsten Rabe Smolensky, Rights of the Dead, 37 Hofstra L. Rev. 763 (2009) (contending, from a political philosophy framing, that some legal protections for the dead are tantamount to rights). None of these works discuss the constitutional dimensions of these issues in a sustained way. The rule rests on two faulty premises. The first is that the dead are incapable of being rights-holders and, therefore, cannot be deprived of such rights. The second is that there are no sound policy reasons for recognizing constitutional rights of the dead.

The first premise is undone by a robust common law tradition of treating the dead as beings who can have rights. The United States Supreme Court has defined “rights” as those that are mandatory, sufficiently clear, and designed for the benefit of individuals or a class. 16 Blessing v. Freestone, 520 U.S. 329, 340–41 (1997). Examples of rights that meet this test include the right to dignified interment, the right against unjustified disturbance after interment, the right to bodily integrity, and the right to transfer property. Moreover, in the constitutional context, courts routinely permit estates to vindicate postmortem property-based violations such as takings. 17 See infra section I.C.

As for the second premise, posthumous legal rights can serve important functions and principles. Such laws can promote uniquely human pursuits by protecting individuals’ memory, enforcing their will, and accommodating their spirituality after death. “Memory” herein is defined as the ongoing psychic impression and influence accorded a person’s dignity, creations, and reputation. “Will” is defined as a person’s intentions for matters reasonably within their influence. Lastly, “spirituality” herein references the metanarratives that guide a person in defining the meaning of their existence or mortality.

Moreover, posthumous legal rights can foster equality by shielding against the stigma and terror that the degradation of marginalized groups’ memories can foster. Through state-sanctioned segregation in cemeteries, public mutilation after lynchings, and other disparate treatment in death, government actors have used the bodies and memories of subjugated groups to fortify castes and provoke fear-fueled submission. This type of mistreatment can also generate a sense of anomie and “legal estrangement,” disconnecting marginalized groups from a sense of belonging and shared citizenship. 18 See infra section III.C. The concept of legal estrangement was introduced by Professor Monica C. Bell. It is a confluence of subjective legal cynicism, structural injustice, and vicarious marginalization. See Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement, 126 Yale L.J. 2054, 2083 (2017) [hereinafter Bell, Legal Estrangement]; see also Fred O. Smith, Jr., Abstention in the Time of Ferguson, 131 Harv. L. Rev. 2283, 2356 (2018) (“[W]hen a sense of procedural fairness is illusory, this fosters a sense of second-class citizenship, increases the likelihood people will fail to comply with legal directives, and induces anomie in some groups that leaves them with a sense of statelessness.”). While living beings experience the emotional turmoil and vicarious marginalization associated with these types of indignities, the mode of mistreatment is the dehumanization of the dead subject. As such, a salutary antidote is for the law to recognize the dehumanized subject’s shared humanity. Recognizing the decedent as a rights-bearer services that end.

This Article has four aims, and the four Parts of this Article generally track those aims. The first is to provide a descriptive account of the constitutional law of the dead, including its origins and analytic missteps. This description also includes some of the partial workarounds that courts have created, such as permitting families to bring constitutional claims for the deprivation of the “quasi-property interests” they have in decedents’ bodies. 19 See infra Part I. The second is to demystify the notion that the dead have rights by identifying long-standing legal protections for the dead and demonstrating that those protections are, in fact, rights. 20 See infra Part II. Indeed, in the context of property, at least one of those rights already has constitutional dimensions through the law of takings. A third aim is to demonstrate that there are important costs to American doctrine’s failure to recognize dignity-based constitutional violations against the dead. 21 See infra Part III. Dignity-based claims and takings claims are not mutually exclusive categories; some takings are accompanied by forms of dehumanization that implicate dignity interests. See Bernadette Atuahene, Dignity Takings and Dignity Restoration: Creating a New Theoretical Framework for Understanding Involuntary Property Loss and the Remedies Required, 41 Law & Soc. Inquiry 796, 817 (2016) (“A dignity taking occurs when a state directly or indirectly destroys or confiscates property rights from owners or occupiers and the intentional or unintentional outcome is dehumanization or infantilization.”). Fourth, this Article provides a framework for determining the scope and application of the dead’s constitutional rights. 22 See infra Part IV.

Methodologically, this Article does not rest upon a singular mode of constitutional interpretation or theory; this is a critique of the underpinnings of the extant doctrine and an appraisal of its normative costs. Nonetheless, the evidence herein could inform at least two competing theories of constitutional interpretation. The first is common law constitutionalism. According to its leading expositor and proponent, this theory holds that the development of constitutional law is best predicated on a collection of “judgments that have been accepted by many generations in a variety of circumstances,” including judgments about which conventions should govern constitutional interpretation. 23 David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 891 (1996); cf. Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. Rev. 353, 393–94 (1981) (“[T]he common law approach, and not the statutory approach, best describes the development of constitutional law under the bill of rights.”). But see Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 Colum. L. Rev. 1482, 1482–83 (2007) (critiquing the premise that, in the constitutional context, views over time reflect inherent wisdom). Adherents of this theory may find this Article profitable to the extent that it identifies and assesses judgments reflected in American law’s treatment of posthumous interests across generations and circumstances.

A second dominant rival theory (or set of theories) is originalism, including “original meaning” originalism—what did the words of a provision most naturally mean at the time of ratification? 24 See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 94–95 (Princeton Univ. Press rev. ed. 2014) (“‘[O]riginal meaning’ originalism seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment.”); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 38 (Amy Gutmann ed., Princeton Univ. Press new ed. 1997) (“What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsmen intended.”); see also Jack M. Balkin, Living Originalism 11–12 (2011) (emphasizing that the text sometimes reflects a principle, and the goal should then be to understand the original meaning of that principle). Here, this Article places particular focus on rights that were embedded in the common law before the passage of the Fourteenth Amendment. Concomitantly, the origins of the rights predominately discussed herein predate the passage of Section 1983, the venerable Reconstruction-era statute that created a private cause of action against state actors for violating federal rights. 25 See Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13 (codified as amended at 42 U.S.C. § 1983 (2018)):
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
Id. Proponents of originalism may well find, then, that these doctrines can shed light on the meaning of those provisions. 26 See Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 511–12 (2010) (deploying an “original public meaning” approach to argue that substantive due process is a feature of the Fourteenth Amendment, but not the Fifth). More broadly, originalist constitutionalism is premised, in part, on the notion that we today are bound by the assent and will of the past generations that enacted the original Constitution and its subsequent amendments. 27 See Frank H. Easterbrook, Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119, 1123 (1998) (“Democracy by the living is not an alternative to originalism and the rule of the dead; these are two aspects of the same thing, and an emphasis on ‘the dead’ when it comes to judges is essential to the power of ‘the living’ when it comes to governance.”); cf. All Things Considered, Scalia Vigorously Defends a ‘Dead’ Constitution, NPR (Apr. 28, 2008), http://www.npr.org/templates/story/story.php?storyId=90011526 [https://perma.cc/D5FB-RESW] (“The Constitution that I interpret and apply is not living, but dead.”). As Professor Reva Siegel has described, “[O]riginalist theories commonly locate the Constitution’s democratic authority in the consent of the ratifying generations.” 28 Reva B. Siegel, Heller & Originalism’s Dead Hand—In Theory and Practice, 56 UCLA L. Rev. 1399, 1403 (2009). This Article complements this view by excavating underappreciated ways that the protection of intergenerational will has long been a central feature of American law.