Beyond that, understanding the dead as rights-holders can influence the narratives that shape our collective legal, political, and cultural consciousness. Understanding the dead as constitutional rights-holders opens the door to enhanced accountability through litigation and congressional enforcement of the Reconstruction Amendments. The Constitution need not remain silent when governmental actors engage in abusive or unequal treatment in death. Posthumous legal rights can also foster equality by shielding against the stigma and terror that have historically accompanied the abuse of the dead. As for the second premise, posthumous rights can promote human pursuits by protecting individuals’ memory, enforcing their will, and accommodating their diverse spiritual beliefs.
The first premise is undone by a robust common law tradition of protecting the dead’s dignitary interests and testamentary will. The second is that there are no sound policy reasons for recognizing constitutional rights after death. The first is that the dead are incapable of being rights-holders. 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. 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.
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