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

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,