Baude comments that
The most natural question to ask about zombies and constitutional law is whether zombies are persons within the meaning of the Constitution. But that question turns out to be remarkably difficult.
The word “person” appears repeatedly throughout the Constitution, but without any clues about whether it extends to zombies. There is no judicial precedent. ... There are no similar clues that the term excludes the undead. Nor is there any good evidence of what James Madison thought about zombies.
This ambiguity is exacerbated by the fact that there are several different types of zombies. ... What’s the best constitutional solution to this problem? Zombie Federalism.
The Constitution does not resolve the question of zombie personhood, so we should understand it to leave that question to state law. That is, states can choose to recognize zombie personhood, making them constitutional persons, or not. This allows states to deal with the difficult moral and ethical line-drawing problems about the boundaries of life and death. ... And to the extent that zombies are ambulatory, it will allow them to vote with their feet by shambling to states that recognize zombie personhood.Baude notes the inconvenient question of whether zombies would be "free persons" or "other persons".
The latter "would reanimate the 3/5 clause, which had previously been thought to be made irrelevant by the constitutional abolition of slavery".
