Zombies and the Constitution

By Mike Dorf


About ten years ago, I was contacted by a man who claimed to be an independent filmmaker.  He said that he was working on a film in which Abraham Lincoln is reanimated as a zombie and runs for President, but disrupts the debates by attempting to eat the brains of the other candidates.  The purported filmmaker asked me whether I thought zombie Lincoln would be eligible for the Presidency.  I thought this was probably some sort of prank, but provided an answer in exchange for a film credit as a "script consultant" if the film was ever made.  To date, the film hasn't been made, or if it was made, it hasn't been released.  Perhaps it was a prank after all.

In the meantime, percolating in the back of my mind has been the question: Would zombie Lincoln be eligible for the Presidency?  Finally the question bubbled forward to the front of my mind, where it made it into the following exam that I just administered to my constitutional law students.  The students were given 8 hours and a 2500-word limit to produce their answers.

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            The following facts pertain to all questions:

            Shortly after his appointment as Secretary of Defense in the Bush Administration, Donald Rumsfeld initiated a top-secret project, code-named “Brains.”  Under the direction of the brilliant but unorthodox Victor Frankensteen, the project sought to create a zombie army.  Frankensteen succeeded in using the cells of dead service members to create adults with fully human bodies and brains, grown in vats for six months and “hatched” with artificial memories at the equivalent of the biological age of 35.  However, in a sense Frankensteen succeeded too well, for his zombies are not undead and bear little resemblance to the shuffling ghouls of late-night horror fare.  They are no worse as fighters than other service members, but also no better.  Given that fact as well as the enormous cost and potential for bad publicity, Operation Brains was canceled by Rumsfeld’s successor, Robert Gates.  The 42 zombies that Frankensteen created were moved to Area 51, a secret military installation in southern Nevada, where they continue to be kept in comfortable surroundings at government expense but forbidden contact with the outside world.

Worried about his party’s prospects in the coming election, former Secretary Rumsfeld secretly reached out to Frankensteen to commission the revival of the GOP’s greatest President of all time, Abraham Lincoln.  Frankensteen succeeded in creating a “zombie Lincoln” from DNA samples taken from Lincoln’s exhumed corpse, imprinted with false memories of the entire life of the Great Emancipator.  After an intensive training session, zombie Lincoln announced his candidacy for the Republican Presidential nomination in early December 2011.

Zombie Lincoln proves to be electrifying on the stump and in debate, delivering one zinger after another to his rivals, and using his height advantage to literally tower over the competition.  Political pundits quickly agree that Zombie Lincoln poses a serious threat to the Republican field and to President Obama himself, should Lincoln secure the Republican nomination.  Zombie Lincoln also proves ideologically flexible.  He endorses both universal health care and a return to the gold standard; he favors strict immigration limits and gun control (citing his own experience at the hand of John Wilkes Booth).  Political insiders in both parties increasingly view him as a serious threat.  Accordingly, in late December 2011, Congress holds a day of hearings on “the zombie menace.”  It then passes, and the President signs, the Defense of Brains Act (“DOBA”).

DOBA begins with a recitation of findings that include the following:

Beings that are created from human DNA taken from dead people and implanted with false memories (hereinafter “zombies”) pose an existential threat to the human race because of uncertainty surrounding their long-term goals and stability.  There is no conclusive evidence that zombies do not or will not feast on human brains.  Congress has ample authority to protect humanity against zombies.  This Act is passed pursuant to Congress’s power to regulate interstate commerce, and to enforce the 12th, 13th, 14th, 15th, and 22nd Amendments.

DOBA also includes these provisions:

Section 1. It shall be a felony, punishable by up to 20 years in prison, to create a zombie.

Section 2. Zombies are not persons or citizens under the Constitution or federal law.

With just weeks to go before the Iowa Caucuses and the New Hampshire primary, former Massachusetts Governor and Republican candidate Mitt Romney files lawsuits in state courts in Iowa and New Hampshire, seeking to enjoin Zombie Lincoln’s participation on the ground that he is not qualified to be President under: DOBA; the Constitution’s Article II, Section 1, Clause 5; and the 22nd Amendment.

Zombie Lincoln’s legal team raises both procedural and substantive objections.  Procedurally, they argue that Romney lacks Article III and/or prudential standing and that, even if standing were proper, the case presents a political question.  On the merits, in addition to adducing arguments against Romney’s affirmative claims, Zombie Lincoln contends that any effort to disqualify him would deny equal protection and his citizenship rights under Section 1 of the Fourteenth Amendment.

The political question argument persuades the respective trial judges, the intermediate appellate judges, and the Justices of the Iowa Supreme Court and the New Hampshire Court to dismiss the lawsuit.  The U.S. Supreme Court then grants a petition for certiorari on an expedited basis.  President Obama files an amicus brief in support of Romney, and the case of Romney v. Lincoln is quickly dubbed “Bush v. Gore II” by Court watchers.  The case presents the following questions:

1) Does Romney have standing?

2) Does the case present a non-justiciable political question?

3) Is DOBA Section 2 a valid exercise of any of the affirmative powers of Congress invoked in DOBA?

(Please answer questions 4, 5, and 6 without regard to DOBA.)

4) Is Zombie Lincoln eligible to be President under Article II, Section 1, Clause 5?

5) Is Zombie Lincoln eligible to be President under the 22nd Amendment?

6) Would disqualification of Zombie Lincoln violate the 14th Amendment?

You are a lawyer working for former House Speaker Newt Gingrich’s Presidential campaign.  Speaker Gingrich is trying to plan his Iowa and New Hampshire strategy, which will vary depending on whether or not Lincoln is eligible to participate.  Write a memo assessing the likely outcome to the Supreme Court case, being sure to address each of the six questions, even if your answer to any one of them is dispositive of the rest of the case.

END OF EXAM