That’s the colorful title that the brand-new website LifeZette has placed on my essay exploring what might be next on the living-constitutionalist agenda. Don’t miss the accompanying zombie graphics. An excerpt:
The broader lesson [of the Court’s SSM ruling] for the long-term, I would submit, is that there is no rewriting of the Constitution that is beyond the bounds of the possible if something matters to the Left and there are five or more living-constitutionalist justices on the Court. Indeed, Justice Ruth Bader Ginsburg and Justice Stephen Breyer illustrated the point in another case two weeks ago, in which, after more than 20 years each on the Court, they suddenly called into question the constitutionality of the death penalty.
The list of possible living-constitutionalist innovations is endless: Voting rights for illegal aliens; taxpayer funding of abortion and of sex-change operations; mandatory equalized spending for public-school districts; a right to welfare payments above the poverty line; and a right to have multiple spouses.
Other innovations might also severely impair existing rights. Legal academics are enamored of restrictions on so-called “hate speech”— an amorphous category that is already expanding to include criticism of racial preferences or use of male pronouns to refer to a man who thinks he’s a woman. The First Amendment, as long construed, would bar the government from imposing such restrictions. But that’s no barrier against five willful justices. Ditto for a robust understanding of religious liberty and for Second Amendment rights to firearms.