Bernick on Cthulhu and the Constitution

Evan D. Bernick, Northern Illinois University College of Law, has published Cthulhu and the Constitution. Here is the abstract.

Howard Phillips Lovecraft was born in 1892, nineteen years after the enactment of the Comstock Act and six years before the Supreme Court in United States v. Wong Kim Ark affirmed birthright citizenship as a constitutional guarantee. He dreamed of monsters and brought them to life with language that has not lost its power to horrify. The best-known entity in his bestiary is Cthulhu, whom people cannot behold without going mad. Cthulhu and co. are ancient, unknowable, and unkillable. Wrote Lovecraft in The Dunwich Horror: “The Old Ones were, the Old Ones are, and the Old Ones shall be.” One of the most insightful engagements with Lovecraft’s work and legacy, Alan Moore’s Providence, imagines Lovecraft as an instrument of actually existing cosmic entities who use his extraordinary literary talents to bring their world into contact with ours. But let’s be real: Lovecraft’s monsters were, are fictional, and their origins lie in nothing so creditable. Lovecraft was racist, sexist, and xenophobic, and he was obsessively fearful of the contamination of the nation’s sexual purity—especially through immigration. These prejudices and phobias inspired his monsters and his descriptions of their acolytes. This Essay describes present-day efforts to revive old, monstrous legal institutions and ideas and put them in the service of policies Lovecraft might have loved. The Trump Administration is committed to a constitutional program that is informed by racism, sexism, and xenophobia. One of the major components of that program is an ongoing attack on the Fourteenth Amendment’s guarantee of birthright citizenship. Another is an attack on reproductive rights, which is likely to include an effort to revive the long-dead Comstock Act and use it to ban the distribution of abortion pills. These attacks have late-nineteenth-century analogs and depend upon late-nineteenth century statutes and legal theories. Studying how popular movements resisted and ultimately sapped these statutes and theories of power with, without, and despite law can equip us to defeat these monsters once again. They were and they are, but they shall not be.

Download the essay from SSRN at the link.