The very end of Justice Scalia's dissent this morning in AID v. Alliance for Open Society makes an interesting observation about the Constitution's claim of authority in Article VI. The Constitution does not demand that citizens in general accept its status as supreme law, but only office holders–those "assisting in the government's work." Citizens themselves "may be Communists or anarchists," as Scalia notes.
The fact that the Constitution does not impose itself directly on later generations, but only imposes an entrance condition on governmental institutions that were in the founding generation's control, is also important to evaluating "dead hand" objections to the Constitution's authority to govern future generations. We might think of Article VI as constitutional shrink-wrap. Many people, of course, object to cases like ProCD v. Zeidenberg and Hill v. Gateway, which enforce product-licensing conditions to which consumers have not explitly agreed, but have only accepted, implicitly, as a condition of obtaining a product. But the complaint with such cases is more complicated than simply complaining that the seller of a product has no right to impose a contract on consumers who want to have nothing to do with the seller. The issue is whether the seller of a product has the right to impose conditions on the sale of a product–a product created by the seller–on consumers. Likewise, the dead-hand objection to the legitimacy of the Constitution, or to originalist interpretation of it, is not about the authority of the founding generation to issue commands to later unwilling generations, but the authority of the founding generation to impose conditions on the use of institutions–governmental institutions created by the founders–passed on to later generations. To use another analogy, Aritcle VI is an in-rem, not in-personam, exercise of authority: a claim of authority with respect to a particular thing, commanding that those who want to use that thing do so in a particular way, not a claim of direct authority over people wanting nothing to do with the founders or their Constitution.
Posted at 5:48 PM