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

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118 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 interpretation. “New insights can influence and even change the evaluation . . . in terms of human dignity and the principles of a constitutional state.” 245 Thus, this approach to dignity fits squarely with the inherent evolutionary aspect of common law and the principle of a living Constitution. One of the major criticisms levied at the right to dignity (in all of its possible iterations but especially in its positivistic vein) is that there seems little to counterbalance it. Thus, the accusation is that “human dignity has an absolute effect,” and therefore there is no way for the courts “to balance other legal interests, be they of other individuals or of the community.” 246 Or else, it might appear that the elevation of a positive right to dignity to the pinnacle of all rights might have the effect of curtailing or severely limiting other rights held in high esteem in the American legal system, such as free speech, because “arguments from dignity seem much more plausible to generate arguments for restricting various kinds of speech than for protecting it.” 247 There is no doubt that this strongest version of the right to dignity will conflict with some wellestablished rights in the United States, but this is not unfamiliar to the American legal system: several cases pit important rights one against another, such as the free exercise clause with a state’s police power or the free speech clause with a personal tort. 248 Courts are well equipped to deal with this balancing act, and there is no reason to believe that this would change with a heightened view of the right to dignity. The second major criticism is that the right to dignity in this affirmative context is antithetical to the libertarian thrust that is 245. See Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] June 21, 1977, 45 BVerfGE 187 (Ger.), reprinted in Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 306, 307 (2d ed. 1997). 246. Klein, supra note 152, at 149; see also D.M. Davis, Equality: The Majesty of Legoland Jurisprudence, 116 S. Afr. L.J. 398, 413 (1999) (discussing whether the right to dignity could swallow up all other rights). 247. See Schauer, supra note 88, at 184; see also Carmi, supra note 20, at 959–60 (“[H]uman dignity and freedom of speech should be viewed as contending rather than harmonious values.”); cf. Mark Tushnet, The Inevitable Globalization of Constitutional Law, 49 Va. J. Int’l L. 985, 1003 (2008) (noting that the current protection of hate speech through free speech doctrine comes “[a]t some cost to . . . dignity.”). 248. See, e.g., Emp’t Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990) (pitting the free exercise rights of Native Americans against the state’s right to regulate narcotics); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (balancing free speech rights of pornographic publishers against the individual’s right to emotional integrity).
2011] The Right to Dignity 119 embodied not only in the Constitution, but also in all of American jurisprudence both at the federal and state levels. The evidence of this can be seen both in the vast body of interpretative law that exists visàvis the Constitution and that rejects that this contains notions of positive rights, 249 but also in traditional common law rules, such as that which imposes no liability on someone who had the opportunity to offer help to a person in need but refused to do so. In other words, the communitarian, societybuilding ethos inherent in the objective right to dignity does not seem to have developed firm roots within the fabric of American law. Generally speaking, this criticism is factually and descriptively accurate, but ignores the normative dimension of the issue. Rather than preemptively shutting the door on the conversation pertaining to dignity rights with the axiomatic “we’ve never done it this way,” it would be more advisable to let the developments in this direction take place organically, and then reevaluate their viability. After all, legal experimentation is a staple of American jurisprudence and this would fit squarely within the parameters of past and present legal rules. One remaining criticism involves the claim that a positive right to dignity will fling wide open the courthouse doors to all flimsy and dubious claims that can perceivably, if improbably, be linked to the right to dignity. The first answer to this is that courts already deal with abusive claims under other rights on a daily basis, and the same process would play out in the context of the right to dignity as well, so that ridiculous or farcical claims would be dealt with early and decisively. A second answer would be to observe what has happened in countries that have already embarked on this jurisprudential journey. The German Constitutional Court (with arguably the strongest dignity jurisprudence in the world along with South Africa) has had to contend with these kinds of claims and has uniformly rejected them. Thus, that court has found that the changing of the title of certain judges, the obligation to attend traffic school, and the requirement to bury the ashes of the dead in a cemetery did not violate the right to dignity. 250 249. See, e.g., Harris v. McRae, 448 U.S. 297, 316 (1980) (“it simply does not follow that a woman’s freedom of choice [to have an abortion] carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”). 250. See Kommers, supra note 149, at 550 n. 59 (citing Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] 1974, 38 BVerfGE 1 (Ger.) (judge’s title); Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] 1970, 22 BVerfGE 21 (Ger.) (traffic school);
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