When The Law Won’t Die: The Real Problem With America’s “Zombie Laws”

by Brooke Karsteter, Associate Member, University of Cincinnati Law Review Vol. 94

I. Introduction

The legal archives of the United States are filled with curiosities that read more like folklore than enforceable law. In South Carolina, a statute forbids minors from playing pinball machines.¹ And in Alaska, a wildlife regulation proscribes the use of aircraft to “harass game,”² spawning the infamous myth that it is illegal to push a live moose out of an airplane.³Of course, no one today is being arrested for playing pinball.⁴ These laws remain formally valid but functionally ignored—legal text that no longer governs conduct. Their quiet presence raises a familiar disconnect when the written law says one thing, but society behaves as if it says another.

These so-called “zombie laws” or “dead letters” are statutes or constitutional provisions that remain embedded in state and federal codes long after courts, legislatures, or changing social norms have rendered them unenforceable.⁵ Their persistence reflects a widespread misunderstanding known as the “writ-of-erasure fallacy”: the mistaken belief that when courts declare a law unconstitutional, the law ceases to exist.⁶ In reality, a judicial declaration of unconstitutionality merely halts enforcement, and only a legislature can formally repeal or amend a law.⁷

This Article contends that zombie laws pose a genuine threat to the rule of law by eroding legal clarity, fostering uncertainty in constitutional interpretation, and enabling selective or arbitrary enforcement. Their existence also highlights a broader problem of institutional accountability: while courts cannot erase text, legislatures too often lack the political will to repeal it. Part II explains why zombie laws persist and how their endurance reflects structural limits within American governance. Part III examines how they can reawaken, distort constitutional meaning, and undermine confidence in the rule of law, while proposing reforms grounded in legislative responsibility and constitutional restraint. Part IV concludes by emphasizing the importance of keeping the legal code both clear and credible.

II. Background

Zombie laws endure not because they are widely supported, but because few are willing to bear the political cost of burying them. Their survival reflects structural inertia, risk-averse legislatures, and the limits of judicial power. This Section first defines the types of legal provisions most prone to “zombification.” It then explains why these provisions persist, focusing on the interplay between judicial restraint, legislative inertia, and political risk. Together, these dynamics reveal how institutional design, not popular will, allows outdated laws to remain embedded in the legal code. The cost of that inertia is not merely academic, because when obsolete laws linger, they obscure the boundaries of legitimate authority, invite selective enforcement, and erode public faith in the coherence of the legal system.

A. Defining Zombie Provisions

The category of legal text prone to zombification includes not just outdated statutes but also provisions within state and federal constitutions.⁸ Zombie constitutional provisions are constitutional texts unenforceable by amendment, federal preemption, or a declaration of federal unconstitutionality.⁹ Despite their invalidity, these provisions “live on” by remaining written in constitutional texts.

Zombie constitutional provisions are abundant. Prominent examples include restrictive marriage definitions, religious tests, voter literacy tests, and gendered language.¹⁰ Twenty-nine state constitutions still restrict marriage to a relationship between one man and one woman–provisions rendered unenforceable by Obergefell v. Hodges.¹¹ The disqualification of atheists from serving in office or testifying as witnesses remains in some constitutional texts.¹² South Carolina’s constitution, for instance, states that “[n]o person who denies the existence of the Supreme being shall hold any office under this Constitution.”¹³ Federal statutory law prohibits the use of literacy tests to determine voter eligibility, yet several state constitutions retain provisions contradicting this prohibition.¹⁴ Lastly, pervasive gendered language restricts rights and offices, often implicitly limiting them to men alone.¹⁵

These remnants persist because constitutional text is difficult to revise and because legislative bodies often lack incentive to address obsolete clauses.¹⁶ The result is a constitutional patchwork where documents contain both living and dead provisions and have no clear boundary between them.

B. Separation of Powers and the Political Cost of Repeal

The existence of a zombie provision means that a law or constitutional clause, despite being declared invalid by a court, remains available for potential enforcement if legal or political circumstances shift.¹⁷ A judicial decree of unconstitutionality does not nullify, erase, or repeal the challenged law.¹⁸ Instead, the court’s opinion merely establishes a binding precedent that halts future enforcement, leaving the task of repeal to the legislature.¹⁹ But legislatures often fail to act, leaving “undead” laws valid in form but void in practice.²⁰

Repeal efforts rarely attract the necessary legislative attention or political reward.²¹ Lawmakers tend to avoid repeal precisely because striking obsolete or unconstitutional laws can appear politically tone-deaf amid more pressing policy issues.²² Further, the difficulties inherent in the legislative process make repeals uniquely difficult to enact, often requiring unified party control or concentrated political capital.²³ Thus, laws that everyone agrees are dead continue to linger, silently eroding confidence in the coherence of the law itself. Political caution, not principle, keep these provisions alive.

This creates a structural oddity: only legislatures can repeal laws, but only courts can declare them invalid. Between these institutions lies a gray area where laws lose vitality but retain form, collecting dust in the code until political winds or judicial ties shift again. In that space, three primary harms take root: revival, arbitrary enforcement, and interpretive distortion.

III. Discussion

While most zombie laws lie dormant, their potential for sudden revival poses grave risk. If a judicial precedent or federal statute that invalidated a state law is overturned, the zombie provision can immediately spring back to life without new legislative action.²⁴ Even when not actively enforced, these provisions can exert a subtle but corrosive influence on modern jurisprudence. Legal interpretation is rarely conducted in isolation; instead, courts often read provisions “in light of the document as a whole.”²⁵ Thus, outdated clauses such as racial restrictions on marriage or religious-test provisions can color how courts understand more active guarantees like equal protection or due process.²⁶

This Section explores three primary consequences of retaining zombie laws. Subsection A examines the danger of sudden revival when judicial precedent shifts, as illustrated by post-Dobbs abortion bans, and how these laws enable arbitrary enforcement by officials who selectively invoke long-dormant or superseded statutes. Subsection B analyzes how zombie provisions distort constitutional interpretation, subtly narrowing the scope of active guarantees and undermining coherence. Subsection C examines how these effects threaten legitimacy of the rule of law and erode public trust. Lastly, Subsection D proposes solutions grounded in legislative reform, civic responsibility, and rhetorical clarity.

A. The Risk of Revival and Arbitrary Enforcement

The Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization,²⁷ which overruled Roe v. Wade²⁸ and Planned Parenthood v. Casey,²⁹ demonstrated the risk of sudden revival.³⁰ In Roe, the Supreme Court recognized a constitutional right to abortion grounded in the implicit right to privacy protected by the Fourteenth Amendment’s Due Process Clause, effectively invalidating state laws criminalizing the procedure.³¹ Casey reaffirmed that right but replaced Roe’s trimester framework with the “undue burden” standard, which prohibited states from imposing substantial obstacles before fetal viability.³² When Dobbs eliminated that constitutional protection altogether, it stripped away the barrier that had long prevented enforcement of pre-Roe bans.

Nearly half the states had such statutes still on the books, many dating back to the nineteenth century.³³ Within hours of Dobbs, those legislative fossils reanimated, allowing immediate enforcement.³⁴ In states like Wisconsin, conflicting interpretations emerged over whether century-old prohibitions automatically regained effect or required reenactment, leaving medical providers uncertain with whether compliance with federal precedent one day may become a felony the next.³⁵ The lesson extends beyond abortion: whenever precedent shifts, dormant laws can spring back to life without requiring any new legislative action. One merely needs to “dust off the zombie statute” and begin enforcement again.³⁶

This danger reaches other constitutional domains, including marriage, environmental regulation, and gun rights. Justice Thomas’s Dobbs concurrence, for instance, explicitly invited reconsideration of Obergefell and similar substantive due process precedents.³⁷ In anticipation, several states have begun repealing or amending marriage provisions to prevent revival.³⁸

Zombie laws also facilitate arbitrary or selective enforcement.³⁹ Since they remain valid on the books, officials can selectively invoke them to target individuals or groups under superseded legal standards.⁴⁰ Some states still prohibit “cohabitation”⁴¹ or “blasphemy.”⁴² A prosecutor inclined to act on such statutes could do so until challenged in court, forcing citizens to rely on judicial invalidation after the fact. Such discretion erodes equality before the law and undermines public trust.

Some scholars have suggested that modern legal databases such as Westlaw and LexisNexis might prevent judges from mistakenly relying on zombie provisions.⁴³ But that optimism underestimates the risk of deliberate defiance. Despite Obergefell, former Alabama Chief Justice Roy Moore directed state officials to enforce Alabama’s same-sex marriage ban, openly defying federal authority.⁴⁴ Zombie provisions thus provide rhetorical and procedural ammunition for those willing to act contrarily to federal statutes or constitutional law.⁴⁵

B. Interpretive Distortion and Constitutional Coherence

A more subtle threat lies in how zombie provisions influence constitutional interpretation. Courts, both federal and state, frequently apply intratextualism—reading provisions in “light of the document as a whole” rather than in isolation.⁴⁶ When zombie provisions remain in the text, this contextual analysis creates the risk that they will influence how active provisions are read.⁴⁷

Abstract rights guarantees, such as liberty, due process, and equal protection, derive meaning from surrounding context.⁴⁸ Outdated clauses skew that context, narrowing how courts read living guarantees.⁴⁹ For instance, a constitution that still contains gendered language in office-holding clauses may subtly shape and impact how judges construe equal rights clauses elsewhere.⁵⁰

This interpretive drift challenges both textualists and living constitutionalists. Textualists must reconcile the text’s plain meaning with its obsolescence, while living constitutionalists must decide whether to ignore or reinterpret the obsolete clause. A constitutional order cannot sustain legitimacy if its written text contains both living and dead elements without clear demarcation. Predictability and coherence, cornerstones of the rule of law, depend on textual integrity.⁵¹

C. Civic Confusion and Erosion of Trust

Zombie laws also contribute to civic cynicism.⁵² When citizens discover that clearly obsolete or absurd provisions remain “on the books,” they may conclude that the legal system is incoherent or unserious. A code littered with dead letters sends the wrong message: that written law need not correspond to actual practice. Over time, that perception weakens respect for legal institutions more effectively than any single unconstitutional statute

For the law to command legitimacy, it must apply fairly, consistently, and predictably.⁵³ Zombie laws blur those lines, suggesting that law is a symbolic exercise rather than a governing one.⁵⁴

D. Cleaning the Legal House

Zombie laws are more than harmless curiosities. They clutter legal codes, confuse citizens, and undermine institutional legitimacy. The solution lies not in judicial activism but in renewed legislative and civic responsibility.

Some scholars urge courts to use doctrines such as the “rule of avoidance” or “severability” to neutralize zombie provisions.⁵⁵ But these doctrines risk judicial overreach, effectively rewriting statutes through interpretation rather than democratic repeal. As commentors caution, they rest on speculative notions of legislative intent that judges cannot reliably reconstruct.⁵⁶

Repeal remains the only durable remedy. As Professor Howard M. Wasserman of Florida International University College of Law explains, “Because only the legislature can repeal a duly enacted law, only the legislature can provide the remedy of killing zombies by scrubbing invalid laws from the statute books.”⁵⁷ Wasserman’s point underscores the constitutional division of labor between courts and legislatures, yet legislative inertia remains the greatest obstacle.⁵⁸ States can mitigate it through institutional mechanisms like sunset commissions or periodic code reviews.⁵⁹ Virginia’s review commission, for instance, successfully identified and repealed dozens of obsolete provisions, including anti-miscegenation and same-sex marriage bans.⁶⁰

Moreover, when legislatures fail, citizens can act. Ballot initiatives in California, Colorado, and Hawaii recently repealed outdated anti-marriage equality provisions, demonstrating that civic engagement can correct governmental inertia.⁶¹ Repeal efforts also force lawmakers to go on record, providing valuable information to the voting public about which representatives adhere to antiquated or unconstitutional notions.⁶²

Finally, reform should extend to legal language itself. Lawyers and academics should avoid using the “writ-of-erasure” rhetoric (such as claiming a court “struck down” or “invalidated” a statute).⁶³ A judicial declaration of unconstitutionality is temporary and subject to reversal; only repeal is permanent.⁶⁴ Precision in language fosters precision in law.

IV. Conclusion

The vitality of law lies in knowing when to let the dead rest. Zombie laws undermine the rule of law by creating risks of revival in a shifting legal landscape (as seen post-Dobbs) and by subtly restricting the meaning of constitutional guarantees through contextual interpretation. Preventing these harms requires not judicial innovation but legislative accountability. By reaffirming that repeal–not judicial decree–is the means by which law truly dies, we preserve both the integrity of our legal texts and the legitimacy of the institutions that interpret them.

Cover Photo by Henrik L. on Unsplash

Brooke Karsteter

References

1
S.C. Code Ann. § 63-19-2430.
2
Alaska Stat. § 16.05.920.
3
Stephanie Heath, Turns Out Bizarre Alaskan Law About Moose and Airplanes Doesn’t Exist, Wide Open Spaces (Jan. 8, 2025), https://www.wideopenspaces.com/turns-out-bizarre-alaskan-law-about-moose-and-airplanes-doesnt-exist/ [https://perma.cc/3V8Y-9JWR].
4
Victoria Sutton, Fortune Telling, Substack (Oct. 29, 2023), https://profvictoria.substack.com/p/fortune-telling [https://perma.cc/F4Z4-53V6]; Anna Wilder, Minors Can’t Legally Play Pinball in S.C. Why Is That The Law?, The State (Mar. 27, 2024), https://www.thestate.com/news/politics-government/article287108070.html [https://perma.cc/QM8T-QDXQ].
5
Michael L. Smith, Constitutional Interpretation and Zombie Provisions, 40 Ga. St. U. L. Rev. 603, 610 (2024).
6
Jonathan F. Mitchell, The Writ of Erasure Fallacy, 104 Va. L. Rev. 933, 935 (2018).
7
Howard M. Wasserman, Zombie Laws, 25 Lewis & Clark L. Rev. 1047, 1049 (2022).
8
Smith, supra note 6, at 612.
9
Id.
10
Id. at 616.
11
Id. at 618; see also Obergefell v. Hodges, 576 U.S. 644 (2015) (holding that the Fourteenth Amendment’s Due Process and Equal Protection Clauses protect the right of same-sex couples to marry). Despite this ruling, several state constitutions, including those of Texas (Tex. Const. art. I, § 32), Mississippi (Miss. Const. art. 14 § 263A), and South Dakota (S.D. Const. art. XXI, § 9), still contain provisions limiting marriage to “one man and one woman.”
12
Smith, supra note 6, at 606; see, e.g., Ark. Const. art. 19, § 1; Miss. Const. art. 14, § 265; N.C. Const. art. VI, § 8; S.C. Const. art. VI, § 2; Tenn. Const. art. IX, § 2; Tex. Const. art. I, § 4. Each of these provisions disqualifies individuals who deny the existence of God from holding public office. Although such clauses remain in their respective constitutions, they are unenforceable under Torcaso v. Watkins, 367 U.S. 488 (1961), which held that religious tests for public office violate the First and Fourteenth Amendments.
13
S.C. Const. art. VI, § 2.
14
Smith, supra note 6, at n.22.
15
Id. at 633.
16
Wasserman, supra note 8, at 1084.
17
Id. at 1071.
18
Id. at 1052.
19
Id. Furthermore, judges are often reluctant to order the repeal of a law because the constitutional violation arises not from the law’s mere existence, but from its actual or threatened enforcement. Id.
20
Id. at 1049.
21
Jordan Ragusa, Undoing Past Policies: How Likely Are Repeals in the 119^th Congress?, Econlib (Feb. 3, 2025) https://www.econlib.org/library/columns/y2025/ragusarepeals.html#:~:text=Passing%20new%20legislation%20is%20made,or%20fix%20a%20defective%20statute [https://perma.cc/T84N-JNEP].
22
Id.
23
Id.
24
Smith, supra note 6, at 650.
25
Id. at 643.
26
Id. at 607.
27
597 U.S. 215 (2022).
28
410 U.S. 113 (1973).
29
505 U.S. 833 (1992).
30
Smith, supra note 6, at 650.
31
Roe, 410 U.S. at 153.
32
Casey, 505 U.S. at 874.
33
Smith, supra note 6, at 650.
34
Id.
35
Mary Ziegler, Wisconsin Supreme Court Rules 176-Year-Old Law Does Not Ban Abortion, State Court Report (July 3, 2025), https://statecourtreport.org/our-work/analysis-opinion/wisconsin-supreme-court-rules-176-year-old-law-does-not-ban-abortion#:~:text=In%20Wisconsin%2C%20abortion%20providers%20stopped,as%20an%20absolute%20abortion%20ban [https://perma.cc/RJ2P-XLU9].
36
Smith, supra note 6, at 651.
37
Dobbs, 597 U.S. at 333 (Thomas, J., concurring).
38
Alicia Bannon, Stare Decisis and Zombie Laws, 98 St. John’s L. Rev. 1315, 1318 (2025)
39
Smith, supra note 6, at 651.
40
Bannon, supra note 39, at 1318.
41
Korinne Dunn, Saba Mengesha, & Narintohn Luangrath, Moving In Without Marriage, The Regulatory Review (Mar. 30, 2024), https://www.theregreview.org/2024/03/30/moving-in-without-marriage/ [https://perma.cc/G4U5-GHVZ].
42
Ryan Dudley, It’s Time for SC to Repeal Its Blasphemy Law, News From The States (Aug. 21, 2025), https://www.newsfromthestates.com/article/its-time-sc-repeal-its-blasphemy-law
43
Maureen E. Brady, Zombie State Constitutional Provisions, 2021 Wis. L. Rev. 1063, 1085 (2022).
44
Smith, supra note 6, at 651.
45
Id. at 652.
46
Id. at 643.
47
Id. at 655.
48
Id. at 643.
49
Id. at 655.
50
Id.
51
See also Cass R. Sunstein, Constitutional Personae, 2013 Sup. Ct. Rev. 433, 433-60 (2014) (noting that interpretive consistency sustains legitimacy even amid evolving norms).
52
Bannon, supra note 39, at 1317
53
Guillermo O’Donnell, The Quality of Democracy: Why the Rule of Law Matters, 15 J. Democracy 32, 32-46 (2004).
54
Brady, supra note 44, at 1084.
55
Smith, supra note 6, at 660.
56
Ryan M. Folio, Constitutional Avoidance, Severability, and a New Erie Moment, 42 Harv. L. Rev. 649, 650 (2019).
57
Wasserman, supra note 8, at 1079.
58
Id.
59
Brady, supra note 44, at 1094.
60
Wasserman, supra note 8, at 1072.
61
Bannon, supra note 39, at 1318.
62
Brady, supra note 44, at 1095.
63
Mitchell, supra note 7, at 935.
64
Id.