As readers of my own work should know, I am inclined to disagree with Baude. As I explain in my essay, Prosecuting the Undead: Federal Criminal Law in a World of Zombies, battling the armies of the undead will require the living to present a unified front, and a federal standard of zombie personhood will prevent the fragmentation of this front. Leaving states to define whether zombies are persons would lead to uneven legal treatment of the undead, which could undermine the uniform prosecution of these zombies under the federal criminal law.
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.
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.
While I am happy to see additional attention to the important field of zombie law, adopting a theory of zombie federalism threatens the ability of the living to combat the undead in the coming zombie apocalypse.