Main content

The Constitution After Death

 by Fred O. Smith Jr.

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.


It is the dead,

Not the living, who make the longest demands:

We die for ever [sic].

[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. 

The Washington Post called the conspiracy “Alabama’s ‘Watergate.’” 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. 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. But in the months that followed, an investigation revealed that the police planted the gun near Whitehurst’s dead body. 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. 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. 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.

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. 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.” 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. 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. 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. 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. 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. 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.

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. 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. 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. 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. Fourth, this Article provides a framework for determining the scope and application of the dead’s constitutional rights.

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. 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? 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.

Proponents of originalism may well find, then, that these doctrines can shed light on the meaning of those provisions. 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. As Professor Reva Siegel has described, “[O]riginalist theories commonly locate the Constitution’s democratic authority in the consent of the ratifying generations.” This Article complements this view by excavating underappreciated ways that the protection of intergenerational will has long been a central feature of American law.

—from The Constitution After Death, 120 Columbia Law Review 1471 (2020)