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

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);