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

2011] The Right to Dignity 97
there are several other notions of dignity that emerge from this
constitutional mandate. The first is that the “respecting” and
“protecting” language obliges the state to stand as a guardian for the
dignity interests of its citizens, a guardianship that includes a
supervision of its own actions. The second is that the “duty” language
imposes an affirmative mandate on the state to ensure that no one
falls below a “dignified” level of existence even though this might not
be caused by the state in the first place. Third, and maybe most
important, the “inviolable” language, aside from alluding to Kantian
heritage, places the right to dignity at the pinnacle of all enumerated
rights, the consequence being that not only dignity trumps in issues
where it can be invoked, but it is not subject to constitutional
amendment. The notsosubtle implication, then, is that the right to
dignity is not derived from the German Basic Law, but rather from a
higher moral order that transcends law altogether. 150
The German Constitutional Court has had numerous
opportunities to elucidate the contours of the Basic Law’s enunciation
of the right to dignity, and it has repeatedly confirmed that such right
functions as the supreme law of the land. Thus, in Germany the right
to dignity has operated to restrict abortion rights (although not
completely), because the constitutional mandate “demands the
unconditional respect for every life” and “whether the subject of this
dignity is conscious of it and knows how to safeguard it” is not
dispositive of the issue. 151 It has also worked to invalidate life
sentences without parole, as well as mandated that the state provide
its citizens with a certain level of subsistence. One commentator has
noted that individual dignity’s supremacy is perpetually absolute, in
that there is “no way to balance other legal interests . . . with the
the Federal Republic of Germany 305 (2d ed. 1997) (citing
Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] May 13,
1980, 54 BVerfGE 129 (Ger.) (“To elicit the truth by attaching a person to a
machine . . . is to regard him as an object, and not as a human being capable of
telling the truth through ordinary questioning”)). This is a similar reasoning to
that which led the Supreme Court of Puerto Rico to hold unconstitutional a
private employer’s use of a polygraph test. See Arroyo v. Rattan Specialities, Inc.,
117 P.R. Dec. 35, 56–57 (1986) (holding that the Puerto Rico Constitution “is the
safekeeper” of “the most precious thing[s] in the lives of all human beings in a
democratic society: one’s dignity, integrity and privacy.”).
150. See Weinrib, supra note 33, at 338 (noting that dignity, along with
other German core constitutional principles stands “prior to state power.”).
151. Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court]
1975, 39 BVerfGE 1 (Ger.), reprinted in Donald Kommers, The Constitutional
Jurisprudence of the Federal Republic of Germany 336, 338 (2d ed. 1997).