I am one of many people who have found themselves obsessed with the mystery box TV show, Silo. It follows a post-apocalyptic society living underground in a giant—get it—silo. At the beginning of the show, you quickly learn the Silo’s mantra: “We do not know why we are here. We do not know who built the Silo. We do not know why everything outside the Silo is as it is. We do not know when it will be safe to go outside. We only know that today is not that day.”[1] People who are overcome with curiosity for the outside world or sick of the unexplained panopticon of Silo society may choose to go outside, where they die within seconds.[2] Many people have discussed the implications and social commentary of how the Silo society reflects concerns for the future of our world, but I have continually been struck by the similarities to our present-day world as well.

Notably, there is no prison in the Silo, in the sense that we have prisons.[3] There are a few small jail cells, and people who commit serious crimes against the Silo are sent outside to “clean” (the death penalty, as no one survives outside).[4] Rather, most convicted criminals are sent to the mines—forced to mine for resources for the Silo, presumably without pay, where safety is absolutely no one’s priority, and the death toll is suspiciously high.[5] In the third season, we see a little more of the mines.[6] One of the men in charge explains that some people in the mines have truly committed horrible sins and cannot function in regular society, but most of the people there got unlucky, made mistakes, came from hard backgrounds, or were just in the wrong place at the wrong time.[7] And almost no one escapes the mines.[8] Sound familiar? This is nothing short of a direct parallel to America’s prison system, which makes heavy use of the Thirteenth Amendment’s punishment clause—providing an exception for legalized slavery or involuntary servitude for incarcerated persons.[9]

One of the other heavy features of the society of the Silo is the Pact, which is essentially their constitution and the sum of their legal authority.[10] The Pact appears to have been completely unchanged for the entirety of the Silo’s existence of about 250 years.[11] The people of the Silo are obsessed with the Pact, as it is the purest form of the Founders’ intentions.[12] In season three, the sheriff starts to work on some revisions to the Pact, and he notes that much of the Pact contradicts itself or is irrational, outdated, or cruel.[13] The sheriff, a person who has devoted his life to enforcing the Pact, is horrified by his new lens of their legal system. Funnily enough, in season three, we also hear a little bit about the Pact from the Founders in flashbacks.[14] One of the Founders makes an offhand comment that the Pact was written by AI, with a few edits from the humans in charge.[15] Written by AI? The people of the Silo have worshipped this book, following it to the letter, and the Founders didn’t even write it themselves!

This absurd textual obsession feels familiar to our own obsession with textualism and originalism. Just like with the Pact in the Silo, we have put too much faith and too much weight onto the intentions and desires of long-dead persons. This is not a new problem in America. For instance, when the Thirteenth Amendment was first proposed, no versions other than the final version of the text were seriously considered because Congress believed Thomas Jefferson had written the words we have today, and the Congressmen could not stand to touch the perfection of Jefferson’s writing.[16] Come to find out, Jefferson may not even have written them, but the belief in his influence was nevertheless sufficient to cement the Thirteenth Amendment into that language.[17] At the beginning of Reconstruction, even abolitionists couldn’t agree about the Constitution’s intentions towards slavery. Some people, like Fredrick Douglass, believed that the Constitution already outlawed slavery and gave Black people the right to citizenship,[18] while others believed that the Constitution was inherently evil and needed to be replaced.[19] In the end, neither came to pass.

The necessity of following the Framers’ intentions is still hotly debated. The current Court has taken up historical evidence from the amendment adoption time frame as an opportunity to rework constitutional laws, which have adapted over time, back to the Framers’ intentions. The recent, controversial Dobbs opinion held that Roe v. Wade should be overturned because the right to abortion was not mentioned in the Constitution,[20] is not “deeply rooted in [our] history and tradition,” and is not essential to our Nation’s “scheme of ordered liberty.”[21] The majority relies on the fact that abortion was illegal in most States when the Fourteenth Amendment was ratified,[22] and rejects the idea that the right to abortion is entrenched in the broader right to privacy or freedom to make “intimate and personal choices” that are “central to personal dignity and autonomy” on the basis that including abortion in those categories would go beyond ordered liberty.[23] However, as the dissent points out, women did not even have the right to vote when the Fourteenth Amendment was ratified, let alone any form of reproductive rights.[24] It is absurd to suggest that women’s unenumerated rights must be limited in any way by those they had in 1868, because they would be relegated to none at all. The law must be allowed to evolve, at least to some degree, to account for advances in technology as well as modern sensibilities. 

Yet, the Court has prioritized historical evidence from the amendment adoption period even over previously well-established rules. In New York State Rifle & Pistol Association v. Bruen, the majority states that “[c]onstitutional rights are enshrined with the scope they were understood to have when the people adopted them,” meaning that an application of the Second Amendment as applied by the Fourteenth Amendment should focus mostly on the time periods surrounding 1791 and 1868, as those were the dates each respective amendment was adopted.[25] The majority nonetheless analyzes historical tradition from time periods before and after those eras, although they prioritize the amendment adoption eras.[26] If the post-adoption historical tradition has created a “regular course of practice,” the new tradition can be followed; otherwise, the text must control if later history contradicts it.[27] The dissent criticizes the majority’s “rigid history-only approach,” as it differs from the Court of Appeals’ previous consensus two-step framework, which considered history and governmental justification for regulation with means-end scrutiny.[28] The dissent notes that historical reliance for constitutional law is simply impractical, as courts are not trained or staffed to handle historical analysis, and historical evidence could be manipulated to “produce a preordained conclusion.”[29] And indeed, historical analysis is particularly inadequate in “modern cases presenting modern problems.”[30] The Framers could not have even imagined the existence of technology such as “ghost guns,” smart guns, or bullets capable of piercing body armor, let alone accounted for its regulation.[31] The Court’s obsession with historical reasoning, however, has blinded them to the dysfunctionality of historical reasoning in many of these scenarios involving modern technology that the Framers could not have dreamed of.

In the latest season of Silo, we come to find out that the Founders had some truly evil intentions. At the end of season three, the storyline seems to suggest that the Silos are an intentional experiment, not a necessity for survival.[32] In season one, we learn that the Silo works like a giant digital panopticon, with cameras, as well as physical eyes and ears, everywhere.[33] Those in charge control which couples are allowed to have babies, purposefully breeding docile, unquestioning people, and finding ways to silence the inquisitive.[34] Some of this rings true of our modern society, with the prevalence of cameras functioning as a panopticon,[35] and the silencing of people with unwanted opinions via cancel culture and political pressure.[36] Yet, I still have hope that our Constitutional Framers and modern politicians have better intentions and plans for our world than those of the Silo, although our Framers were, of course, plenty flawed. Twelve of the first eighteen presidents were slave holders.[37] Abraham Lincoln himself was not really an abolitionist; he originally wanted to end slavery by colonizing enslaved and even freed Blacks in Liberia or Central America,[38] and he publicly supported colonization measures up until the day before he signed the Final Emancipation Proclamation.[39] Slavery is an obvious example, but there are many reasons why these historical politicians’ actions and ideas would not be acceptable in modern society; our government and world have changed drastically over these centuries, mostly for the better.

We need to remember that our Framers, as much as we have idolized their legacies, were all just people, and even well-intentioned people can make mistakes or genuinely bad decisions. In the present day, we do ourselves a disservice to keep ourselves beholden to the possible, perceived intentions of a very specifically privileged group of white men from the eighteenth century. I certainly would not suggest we throw out the Constitution altogether, but our constitutional framework, and the case law that has developed from it, has led to a remarkably rickety scaffold of ideas with an increasingly unstable foundation. It is no longer reasonable to solely base our modern ideals and bounds of morality on a single word or two that the Framers included—or forgot—in a now-ancient document. The Court does us a disservice when it ignores the last century of case law development in favor of reverting the law back to the Framers’ intentions. We must instead allow our laws to adapt alongside the advancements of modern technology and social structures.