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

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116 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 party. Roberta Rosenthal Kwall argues for this very notion of dignity. In linking dignitary interests to the action for misappropriation of the right of publicity, Kwall persuasively points out that injuries to human dignity are different from those traditionally associated with violations of privacy (hurt feelings) 233 and thus, the standard remedies offered to those who have their right to publicity violated are ineffective in addressing the violence done to human dignity. 234 Kwall also draws a parallel between dignity rights and defamation by noting that there appears to be “a trend in defamation law to include protection against ‘aspects of personal humiliation and degradation’” that links directly to dignity rights. 235 Most importantly, the tort of misappropriation of the right of publicity grants a person the right of control over his image, which is an integral part of one’s identity, and in turn is bound up in an individual’s human dignity. 236 Thus, granting control over this image through a private right of action is a corollary to preserving each individual’s right to human dignity. Finally, what would the consequences be if the United States adopted a positive notion of dignity rights? Fortunately, the answer to this question is not speculative because, as illustrated above, some countries already adopt this reading of dignity rights, while the United States itself currently incorporates some elements of this concept of the right to dignity. In other words, the solution would not operate in a vacuum. Probably the best example of this approach in the United States is Goldberg v. Kelly. 237 In Goldberg, the Supreme Court held that the government must provide a pretermination hearing for welfare recipients because procedural due process assumes a “basic commitment . . . to foster the dignity and wellbeing of all persons within its border.” 238 Justice Brennan, the author of the majority opinion, noted that “public assistance . . . is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of 233. See Kwall, supra note 94, at 1350–1353 (contrasting dignity concerns with economically compensable injured feelings),. 234. See Kwall, supra note 94, at 1346, 1366–67 (giving examples of how dignity is affected by misappropriation of one’s name or image). 235. Id. at 1349 (quoting Bloustein, supra note 6, at 993). 236. See Alice Haemmerli, Whose Who? The Case for a Kantian Right of Publicity, 49 Duke L.J. 383, 431 (1999) (asserting “[i]dentity remains something intrinsic to the individual, subject to individual control as an autonomybased property right”). 237. Goldberg v. Kelly, 397 U.S. 254 (1970). 238. Id. at 264–65.
2011] The Right to Dignity 117 Liberty to ourselves and our Posterity.’” 239 Although the Supreme Court has since cut back on the holding of Goldberg, 240 from a normative standpoint, the affirmative mandate on the state as a constitutional right linked to the right to dignity is easy to see. To that end, Justice Brennan in Goldberg “was harnessing the power of the moral vision of vindicating human dignity and putting it to work to drive the constitutional engine in the decisions of the Supreme Court.” 241 It is therefore the right to dignity that effectuates the procedural due process clause and gives it life. In this light, it seems as if states would have to create a program of action based on the objective component of human dignity; in other words, a background norm translated into a positive right. 242 Such a program would probably entail, for example, biomedical ethics rules, a right to education (up to and including a college degree), a right to universal “wombtotomb” health care, a right to welfare, and the abolition of chronic poverty. 243 Indeed, “[T]here can be no doubt that human dignity, freedom and equality, the foundational values of . . . society, are denied [to] those who have no food, clothing, or shelter.” 244 That said, dignity as a foundational element, seemingly inviolable, does not necessitate a static understanding or 239. Id. at 265. 240. See Mathews v. Eldridge, 424 U.S. 319, 348–49 (1976). 241. Stephen J. Wermiel, Law and Human Dignity: The Judicial Soul of Justice Brennan, 7 Wm. & Mary Bill Rts. J. 223, 231–232 (1998). 242. This was the goal of the drafters of the Universal Declaration of Human Rights. See Maritain, supra note 70, at 78–79 (referring the “common principles of action” of the UDHR). 243. Some of these precepts were advocated in the Declaration and Program of Action adopted by the Vienna World Conference on Human Rights in 1993. See World Conference on Human Rights, June 14–25, 1993, Vienna Declaration and Programme of Action, in U.N. SecretaryGeneral, Report of the World Conference on Human Rights: Rep. of the SecretaryGeneral, 20, U.N. Doc. A/CONF.157/24 (Pt. 1) (identifying “human dignity” as the foundational cornerstone of human rights and proposing, among other things, that human dignity be promoted through the elimination of poverty). McCrudden lists several other aspects of a positive jurisprudence of dignity including “rights to reputation” and “the right to control access and use of personal data.” See McCrudden, supra note 29, at 670–72. 244. South Africa v. Grootboom 2001 (1) SA 46 (CC) at para. 23 (S. Afr.). It could be said that the mantra of a positive rights view of dignity rights is that the government be tasked to “improve the situation of the lower classes, who had fallen into poverty and starvation, and thus provide a true human existence for everyone.” Joern Eckert, Legal Roots of Human Dignity in German Law, in D. Kretzmer & E. Klein, The Concept of Human Dignity in Human Rights Discourse 41, 47 (2002) (quoting Ferdinand Lassalle).
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The Right to Dignity Rex D. Glensy - Columbia Law School

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