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

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88 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 underlying the Eighth Amendment is nothing less than the dignity of man.” 113 Trop, of course, is more famous as the case that announced the modern Eighth Amendment standard, which mandates that a particular punishment must conform to “the evolving standards of decency that mark the progress of a maturing society.” 114 Fascinatingly, while courts interpreting the Eighth Amendment have readily quoted the “evolving standard of decency” refrain, they are much more reticent to reiterate what Chief Justice Warren declared as “the basic concept underlying” the amendment. Nevertheless, this concept of dignity does appear explicitly every now and then; the most noteworthy example occurred in Hope v. Pelzer, where the Court ruled that tying a prisoner to a hitching post in the sun for more than seven hours, supplying him with little water, and preventing him from going to the toilet during that time was a violation of the Eighth Amendment. 115 The Court held that the punishment was “antithetical to human dignity” because it was “degrading and dangerous.” 116 It focused on the demeaning aspect of the punishment, which included taunting and wanton humiliation of the prisoner. Thus, the use of “dignity” in Hope reflects the same view as that offered in the Korematsu dissent: a background principle that mandates a minimum standard 117 of conduct from government officials regardless of the constitutional principle being invoked— that, in the most neoKantian sense, people must not be treated as objects. 118 Unfortunately, even though this reading seems to 113. Trop v. Dulles, 356 U.S. 86, 100 (1958). 114. Id. at 101. 115. Hope v. Pelzer, 536 U.S. 730, 736 (2002). 116. Id. at 745. 117. Although this background norm may be static, insofar as it creates a basic threshold for conduct, the upper boundary for dignity is evolving. For example, the “national consensus” prong of Eighth Amendment analysis incorporates evolving social norms. See, e.g., Atkins v. Virginia, 536 U.S. 304, 315 (2002). This does not mean that dignity is a moving target, but rather demonstrates that meeting dignity standards is necessary, but not necessarily sufficient, to survive a constitutional challenge. 118. This is the exact notion evoked by Justice Brennan in his opinions rejecting the constitutionality of the death penalty. In Furman v. Georgia, Justice Brennan declared that the death penalty was unconstitutional because “it does not comport with human dignity” in that it fails to respect people “for their intrinsic worth as human beings.” 408 U.S. 238, 270 (1972) (Brennan, J., concurring). In probably the most explicit neoKantian rendition of the right to dignity, when the Supreme Court reinstated the death penalty four years after Furman, Justice Brennan declaimed that putting people to death treats “members of the human race as nonhumans, as objects to be toyed with and discarded,” and
2011] The Right to Dignity 89 enunciate a stable principle, the fact that it is comparatively so rarely referenced partially negates its intrinsic value and calls into question whether there actually is a methodological underpinning to the reliance on the right to dignity. After all, if the Eighth Amendment really is the ultimate embodiment of an inherent right to dignity, then why does the Court refer to this underlying value so rarely and, apparently, so randomly? 119 A similar question can be asked pertaining the Fourth Amendment’s prohibition against unreasonable search and seizure, seeing that the Court characterized its “overriding function” as being “to protect privacy and dignity against unwarranted intrusion by the State.” 120 In the Fourth Amendment context, however, the Court’s explicit reliance upon the dignity rights of the individual is slightly more frequent. Thus, the Court has readily characterized police behavior as “offensive to human dignity” when it rose to the level of shocking even those of “hardened sensibilities.” 121 Similarly, the Court found that “the extent of intrusion upon the individual’s dignitary interests” rendered a search and seizure unconstitutional when officials forced that individual to undergo surgery to remove a is thus “inconsistent with the fundamental premise” of the Eighth Amendment “that even the vilest criminal remains a human being possessed of common human dignity.” Gregg v. Georgia, 428 U.S. 153, 230 (1976) (Brennan, J., dissenting). See also Roper v. Simmons, 543 U.S. 551, 578 (2005) (holding that the execution of those who were underage at the time that they committed their crime was unconstitutional under the Eighth Amendment because that clause rests on the principles of securing individual freedom and preserving human dignity that “are central to the American experience and remain essential to our presentday selfdefinition and national identity,” and were violated by the laws under consideration); Skinner v. Oklahoma, 316 U.S. 535, 546 (1942) (Jackson, J., concurring) (stating that one could not conduct biological experiments on convicted criminals because this would come “at the expense of the dignity and personality and natural powers” of the individuals involved.). 119. Interestingly, Graham v. Florida, which arguably garnered more attention than any other recent Eighth Amendment case, did not mention dignity, even though it cited to Roper repeatedly to support its holding. See Graham v. Florida, No. 08–7412, 130 S.Ct. 2011 (2011). 120. Schmerber v. California, 384 U.S. 757, 767, 76970 (1966) (“The interests in human dignity and privacy which the Fourth Amendment protects forbid” invasive behavior by the state.). For further discussion of privacy rights, see Solove, infra note 295. 121. Rochin v. California, 342 U.S. 165, 172, 174 (1952) (ruling unconstitutionally invasive a search that consisted in opening the petitioner’s mouth and extracting contents from his stomach).
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