Law Commons^™

The Dead Hand Revisited, Andrew Coan

Emory Law Journal Online

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 …