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

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120 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 Nevertheless, recognizing the right to dignity as a substantive legal right would certainly represent a major change in perspective, at least as it concerns reading the Constitution as merely an array of negative rights. This type of change has already been advocated for some time, as commentators have argued for a more affirmative read of constitutional rights. 251 However, as for the second dimension of positive dignity rights, that which grants a private right of action to dignitary injuries, this change, as demonstrated above, would only be marginal. Regardless of how little or much change the American system would undergo through this kind of recognition of dignitary rights, any change always counsels caution, and adopting this view of a right to dignity is something that could only occur through the passage of a somewhat long period of time. Indeed, the abstract solidarity between people expressed by the positive rights approach to dignity occurs, as with all constitutional rights, “only when the principles of justice have penetrated more deeply into the complex of ethical orientations in a given culture.” 252 Thus, the most probable outcome would be that even if there were a concerted movement towards recognition of an explicit right to dignity, it would most likely take the form of one of the three approaches discussed below. 253 B. Background Norm – The Negative Rights Approach The vast majority of rights delineated by the United States Constitution are understood as negative. This concept embodies a noninterference norm, whereby the government is required “to abstain from denigrating (rather than requiring governments to Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] 1979, 50 BVerfGE 256 (Ger.) (urns). 251. See, e.g., Robin West, Rights, Capabilities, and the Good Society, 69 Fordham L. Rev. 1901, 1911 (2001) (advocating a positive dimension to the Equal Protection clause); Susan Bandes, The Negative Constitution: A Critique, 88 Mich. L. Rev. 2271 (1990). 252. Jürgen Habermas, Prepolitical Foundations of the Democratic Constitutional State?, in The Dialectics of Secularization: On Reason and Religion 19, 34 (2006). 253. It is important to note that adopting the positive rights approach to the right to dignity would also most likely result in the adoption of the negative rights approach explained below, although the reverse is unlikely to be true. See generally Deryck Beyleveld & Roger Brownsword, Human Dignity in Bioethics and Biolaw 68 (2001) (explaining that human dignity, if placed within a context of morality alone, may not succeed).
2011] The Right to Dignity 121 intervene on behalf of) human dignity.” 254 In practice, what this means is that one arm of the state will take it upon itself to make sure that another arm of the state is not infringing upon those rights to which individuals are deemed entitled. In the United States, this is how jurisprudence pertaining to constitutional rights has developed, and it applies across the board to such mainstays of American rights as equal protection, due process, free speech, and cruel and unusual punishment. A negative rights approach to the right to dignity would add dignitary interests to those rights that the state would be unable to impinge. The right to dignity would become a de facto background norm and an independent consideration to contend with when a claimant alleges a violation that would impact human dignity. In speaking of human dignity, Eleanor Roosevelt remarked that it reflected the notion that “every human being is worthy of respect” and thus explained “why human beings have rights to begin with.” 255 This means that “human dignity or a similar understanding of universal humanity underlies all human rights.” 256 In other words, the negative rights approach is based on the understanding that human dignity is the source of human rights and hence is anterior or above the state and to which it does not belong conceptually. What follows, consequently, is that in the right to dignity is embodied the notion that it is beyond the reach of the state. In this guise, the right to dignity becomes a metric against which other rights can be measured. Because, as an ideal, dignity is “clearly accepted as universal,” 257 it is reflected in this role as a standard bearer, lying just below the surface of enumerated rights. The main idea behind incorporating the right to dignity as a background norm is the notion that human dignity itself is a quality closely associated with a liberal concept of governance. 258 Indeed, dignity has been described as one of “the cardinal principles for which the [United States] Constitution stands.” 259 In other words, it could be 254. Beth Simmons, Civil Rights in International Law: Compliance with Aspects of the “International Bill of Rights”, 16 Ind. J. Global Legal Stud. 437, 440 (2009). 255. Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights 146 (2001). 256. Donna Greschner, The Purpose of Canadian Equality Rights, 6 Rev. Const. Stud. 290, 321 (2002). 257. Schachter, supra note 14, at 849. 258. See Daniel Bodansky, Is There an International Environmental Constitution?, 16 Ind. J. Global Legal Stud. 565, 569 (2009). 259. Trop v. Dulles, 356 U.S. 86, 100–02 (1958) (noting that stripping an individual of his citizenship was “offensive” to this principle); see also Goodman,
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