The Right to Dignity Rex D. Glensy - Columbia Law School

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78 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 breakdown; they also advocate for life terms for the federal judiciary, so that the courts would not fall “into hands less able and less well qualified to conduct [the role of judging] with utility and dignity.” 66 Moreover, The Federalist Papers construe dignity as a facet of nationhood. The authors suggest that the ineffectiveness of the old system of government was in part due to the unlikelihood that state legislatures would respect the dignity of the Confederation. 67 Furthermore, they also advise that United States representatives bear in mind “the dignity of their country in the eyes of other nations.” 68 Thus, somewhere along the way, dignity as an inherent quality of individuals was lost to a view of dignity as an attribute acquired as a result of holding an official position. Regardless, it is significant that the turbulent times immediately preceding and following the American Revolution precipitated a process where human dignity played a visible role. The founding of the United States was not the only event that caused many of its participants to think about the role of human dignity in the shaping of a future society—the aftermath of World War II also provoked such considerations. Hannah Arendt claimed that the horrors witnessed in the war called for giving human dignity “a new guarantee . . . found only in a new political principle, in a new law on earth” that would take into account “the whole of humanity.” 69 66. The Federalist No. 70, at 394 (Alexander Hamilton) (Clinton Rossiter ed., 1999); The Federalist No. 78, at 439–40 (Alexander Hamilton) (Clinton Rossiter, ed., 1999). 67. See The Federalist No. 46, at 264 (James Madison) (Clinton Rossiter ed., 1999). The Supreme Court has recently cited dignity as an aspect of federalism. See Bond v. United States, 131 S.Ct. 2355, 2364 (2011) (“The allocation of powers in our federal system preserves the integrity, dignity, and residual sovereignty of the States. The federal balance is, in part, an end in itself, to ensure that States function as political entities in their own right.”). 68. The Federalist No. 58, at 327 (James Madison) (Clinton Rossiter ed., 1999). This notion of institutional dignity in the form of state sovereignty has formed the cornerstone of a theory of sovereignty based on dignity. See Judith Resnik & Julie Chihye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 Stan. L. Rev. 1921, 1927, 1962 (2003) (positing that dignity is not solely an individual right, and that it has a role, albeit narrow, in statefederal relations, and noting that the roledignity claims of institutions (similar to those alluded to in The Federalist Papers), have become more limited because of the rise of the notion of individual dignity). 69. Hannah Arendt, The Origins of Totalitarianism ix (Houghton Mifflin Harcourt 1994) (1951). Others have taken up this refrain. See, e.g., Michael S. Pritchard, Human Dignity and Justice, 82 Ethics 299, 300–01 (1972) (“[T]hose who try to formulate substantive principles of justice should reserve a prominent
2011] The Right to Dignity 79 Jacques Maritain, the modern Aquinas, adopted Arendt’s exhortation, and thus relied heavily upon the concept of human dignity in his philosophy and political thinking, placing the concept front and center in the Universal Declaration of Human Rights (UDHR), of which he was a primary drafter. 70 Thus, the protection of the human dignity of all individuals was elevated above all other considerations as a focal point for remedying the colossal failures of all previous structures, which had been derelict in protecting this basic characteristic of human beings during World War II. Social, political, and legal developments subsequent to the initial response to World War II have caused scholars and academics to delve deeper into the analysis of the appropriate role for human dignity within a legal framework. Oscar Schachter explains that respect for dignity could be given additional substance by reference to its “psychological significance.” 71 The effect of this definition, according to Schachter, is rather broad: “high priority” should be accorded to individual choices and beliefs, and any infringement of these in a way that demeans, degrades, or humiliates the individual or a group or community to which that individual is affiliated should be prohibited. 72 Schachter’s contours for the legal role of dignity rights are arguably Kantian, as he notes that dignity “includes recognition of a distinct personal identity, reflecting individual autonomy and responsibility.” 73 Notwithstanding his urgings, Schachter acknowledges that “the farreaching implications” of his theory had “not yet been given substantial specific content,” and thus he offered a list of twelve modes of conduct that he considered to be both denigrating to the dignity of individuals and “incompatible with the basic ideas of the inherent dignity and worth of human persons.” 74 place for human dignity. If this is not done, the distinctively moral aspects of justice will be absent; and the claims of justice will be at best legalistic and at worst arbitrary.”). 70. See, e.g., Jacques Maritain, Man and the State 64, 10507, 143 (1951) (“The first axiom and precept in democracy is to trust the people . . . while putting yourself at the service of their human dignity.); Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d Sess., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR] (“All human beings are born free and equal in dignity and rights.”). 71. Schachter, supra note 14, at 850. 72. Id. at 849–50 (“The use of coercion, physical or psychological, to change personal beliefs is as striking an affront to the dignity of the person as physical abuse or mental torture.”). 73. Id. at 851. 74. Id. at 851–852.
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