Perhaps the oldest and most central question in constitutional theory is what gives the Constitution its special status as fundamental law. One of the oldest answers, and the answer many originalists still give today, is that the Constitution is the command of the sovereign people. Originalism, in its canonical form, may be seen as a corollary of this view. Yet almost before this argument was made, it attracted a powerful criticism, most commonly associated with Thomas Jefferson, who declared: “[T]he earth belongs in usufruct to the living. The dead have neither powers nor rights over it.” This is the famous dead hand problem, which many nonoriginalists have thought decisive, even unanswerable. Needless to say, originalists have not been persuaded. Indeed, many originalists today seem to have forgotten that the dead hand problem requires any response at all. This essay serves as a reminder, examining the best responses to the dead hand problem and finding them wanting. In the process, it clarifies the stakes of the dead hand problem for originalists and nonoriginalists alike. As the United States confronts a mass movement for racial justice and a catastrophic pandemic presenting problems never anticipated by the founders, those stakes have seldom been more pressing.
The Dead Hand Revisited,
Emory L. J. Online
Available at: https://scholarlycommons.law.emory.edu/elj-online/37