From mandating separate and unequal gravesites, to condoning mutilation after lynchings, to engaging in cover-ups after wrongful police shootings, governmental actors have often degraded dignity and perpetuated stigma in death. This Article offers, for the first time, an account of the constitutional law of the dead and takes aim at a legal rule that purports to categorically exclude the dead from constitutional protection. The rule rests on two faulty premises. The first is that the dead are incapable of being rights-holders, and therefore cannot be deprived of such rights. The second is that there are no sound policy reasons for recognizing constitutional rights of the dead.
The first premise is undone by a robust common law tradition of protecting the dead’s dignitary interests and testamentary will. As for the second premise, posthumous legal rights can serve important functions. Such laws can promote uniquely human pursuits by: protecting individuals’ memory; enforcing their will; and accommodating their diverse spiritual beliefs after death. Posthumous legal rights can also foster equality by shielding against the stigma and terror that have historically accompanied the abuse of the dead. Moreover, posthumous rights can remedy and repel the “legal estrangement” that the degradation of marginalized groups’ memories can foster.
The Constitution need not remain silent when governmental actors engage in abusive or unequal treatment in death. Understanding the dead as constitutional rights-holders opens the door to enhanced accountability through litigation and Congressional enforcement of the Reconstruction Amendments. Beyond that, understanding the dead as rights-holders can influence the narratives that shape our collective legal, political, and cultural consciousness. As the nation struggles with how to understand intergenerational mass horrors that still haunt, recognizing the dead as legally cognizable beings of memory, will, and spirituality can, enrich these debates, and enliven our imaginations.In Australia the Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2019 (Cth) - a private members Bill in the Senate - seeks to strip allowances (notably pensions) from Governors-General over misbehaviour.
The Explanatory Memorandum states
The purpose of the Governor-General Amendment (Cessation of Allowances in the Public Interest) Bill 2019 is to cease paying allowances to former Governors-General, or a spouse of the former Governor-General, where they have engaged in serious misconduct. The Bill provides two avenues for ceasing to pay allowances when it is considered to be in the public interest. Firstly, the Minister may make a declaration through a legislative instrument that the former Governor-General, or a spouse of a former Governor-General, cease to be paid an allowance. Alternatively, a House of Parliament may pass a resolution declaring that the former Governor-General, or a spouse of the former Governor-General, cease to be paid an allowance. The Governor-General Act 1974 (the Act) outlines the allowances payable to a former Governor-General after they leave office. There are currently no provisions in the Act to stop paying such allowances where it is no longer in the public interest to do so. For example, a former Governor-General is entitled to receive an allowance even if they have been convicted of a crime. There are already similar provisions for ceasing entitlements to former Governors in state and territory legislation. Under the Governors (Salary and Pensions) Act 2003 (Queensland), a former Governor may have their entitlement ceased if a tribunal makes a finding that the Governor misbehaved in a way that justifies ending the entitlement.
In identifying Clauses the Memo states
Clause 1: Short Title 1. This clause is a formal provision specifying the short title of the Bill.
Clause 2: Commencement 2. This clause provides for the commencement of the Act. It provides that the whole of this Act will commence on the day after it receives Royal Assent.
Clause 3: Schedules 3. This clause provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms.
Schedule 1--Amendments Governor-General Act 1974
Item 1 4. This item inserts the definition of a cessation event under subsection 2A(2). 1
Item 2 5. This item inserts new subsection 4(2A). This provides that a spouse is not eligible to receive an allowance under subsection 4(2) if a cessation event happened before the person's death.
Item 3 6. This item inserts new section 4AGA in the GovernorGeneral Act 1974 which provides that payment of a standard allowance may be ceased if it is in the public interest to do so. A standard allowance means a retirement allowance, a spouse allowance or an associate allowance.
Subsection 4AGA(2) provides that a cessation event happens following a Ministerial declaration under section 4AGB or a House of Parliament passing a resolution under section 4AGC. This item inserts new section 4AGB which provides that a Ministerial declaration may be made to cease paying a standard allowance to a former Governor-General or their spouse.
Subsection 4AGB(1) provides that the Minister may make a declaration that a former Governor-General, or the spouse of a former Governor-General cease to be paid a standard allowance if the Minster is satisfied that a former Governor-General had engaged in serious misconduct. For the purposes of this Bill, serious misconduct involves inappropriate, improper, wrong or unlawful conduct. Examples of serious misconduct could include corruption, sexual misconduct, sexual harassment, theft, fraud and other criminal behaviour.
Subsection 4AGB(2) provides that the Ministerial declaration must specify who the declaration applies to, the reasons for making the declaration and provide a summary of information used by the Minister in making the declaration.
Subsection 4AGB(3) provides that the declaration is a legislative instrument.
Subsection 4AGB(4) provides that the Minister should not make a declaration if the Minister is satisfied that such a declaration would interfere with an ongoing investigation or prosecution relating to the former Governor-General's misconduct.
Subsection 4AGB(5) provides that serious misconduct includes an omission to act.
Subsection 4AGB(6) provides that the Minister must disregard certain circumstances when making the declaration including when the former Governor-General was appointed, when the misconduct took place and whether the misconduct took place in Australia or outside of Australia.
This item inserts a new section 4AGC which provides that a House of Parliament may pass a resolution declaring that a former Governor-General, or a spouse of a former Governor-General cease to be paid a standard allowance. For the purposes of this section, the references to serious misconduct under section 4AGB remain relevant.
