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

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86 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 1. United States Law The United States Supreme Court has referenced human dignity when tasked with interpreting certain provisions of the Constitution. 106 These references have been steady, although inconsistent and haphazard, so that there is a partially developed body of American constitutional law that deals with some semblance of the right to dignity. One commentator has identified eight broad categories of constitutional analyses where the Supreme Court has invoked dignity in more than just a random fashion. 107 As discussed further below, it is the Kantian vision of dignity that seemingly animates those Justices who find that certain constitutional clauses incorporate the concept of human dignity. In other words, it is a person’s inherent autonomy, integrity, and right to be respected by the government that motivates references to dignity by the Supreme Court. Regarding the concept of human dignity as having some sort of constitutional value, one of the first times that the term “dignity” appears in a Supreme Court opinion is in Justice Frank Murphy’s dissent in Korematsu v. United States. 108 Korematsu, of course, is an infamous case where the Court rejected a challenge by a Japanese American who claimed that his forcible relocation and detention during WWII, on the sole grounds of his ancestry, was unconstitutional. 109 Justice Murphy rejected the contention that the Court had to defer to what the military thought was necessary because “[t]o give constitutional sanction [to the action of the 106. See e.g. Paust, supra note 4, at 158 (stating that between 1925 and 1982 the Supreme Court used the term human dignity or its equivalent in 187 opinions); Goodman, supra note 23, at 756 (declaring that from 1980 to 2000, the Supreme Court used equivalent terms in 91 opinions). 107. These eight categories are: Fourteenth Amendment substantive due process claims; Fourteenth Amendment equal protection claims; Fifth Amendment selfincrimination claims; Fourth Amendment search and seizure claims; Eighth Amendment cruel and unusual punishment claims; Fourteenth Amendment right to die claims; Fourteenth Amendment procedural due process claims; and First Amendment freedom of expression claims. See Goodman, supra note 23, at 757. 108. Korematsu v. United States, 323 U.S. 214, 240 (1944) (Murphy, J., dissenting) (petitioner challenged exclusion order targeting JapaneseAmericans as a Fifth Amendment violation beyond the scope of the congressional and executive war powers). 109. Id. at 223 (majority opinion) (upholding exclusion order against Fifth Amendment challenge as the exclusion order was not based solely on ancestry but rather as a response to a military threat).
2011] The Right to Dignity 87 military] is to adopt one of the cruelest of rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups.” 110 Justice Murphy returned to this theme in Yamashita v. Styer, 111 a case where the Court denied certiorari in a case brought by a Japanese general, challenging his detention by American authorities. In dissenting from the denial of certiorari, Justice Murphy again opined that the Court was sanctioning activity that only people who do not share an American belief in the values of “due process and the dignity of the individual” would engage in and that if America was “ever to develop an orderly international community based upon a recognition of human dignity,” it would be best to hear the case at hand. 112 In both cases, Justice Murphy characterizes the destruction of dignity as the basest of human activities. Furthermore, he argued that this would be an action befitting American enemies during WWII, a fact with which Justice Murphy must have been well acquainted by the time Korematsu and Yamashita were decided. At the same time, this argument implicitly suggests that dignity is, if not an exclusively American value, then at the very least a critical facet of America’s national identity. Interestingly, Justice Murphy makes a secondary point: these American actions would have international repercussions that could cause America’s global status to be questioned, if not diminished. Thus, Justice Murphy, although applying the concept of dignity in its purest Kantian meaning, also resorts to using it instrumentally as a means of maintaining respect abroad. His argument is that if the recognition of human dignity is a threshold expectation among certain nations, then failing to protect dignity rights would detract from America’s reputation. In this way, Justice Murphy seemingly makes the claim that the Constitution does protect against actions that offend human dignity. Ever since Justice Murphy’s exposition of the right to dignity under the Constitution, other cases have provided an opportunity to expand on this reading and extend it to other constitutional amendments. Probably the most important of these is Trop v. Dulles, where the Supreme Court declared that “[t]he basic concept 110. Id. at 240 (Murphy, J., dissenting). 111. Yamashita v. Styer, 327 U.S. 1 (1946) (petitioner argued that trial before a military commission deprived him of his due process rights under the Fifth Amendment). 112. Id. at 29, 41 (Murphy J., dissenting).
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