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

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122 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 defined as the Constitution’s tuning fork, to which all elements of the orchestra need to be harmonized. 260 Giving the right to dignity a negative dimension thus gives substance to a theoretical underpinning to which numerous commentators and jurists (some on the Supreme Court) have persistently referred. Therefore, under this reading, what begins as a foundational aspiration (that all people be treated with dignity by their government) is transformed into a basis for justice as a normative goal, to be effectuated through legal processes. The right to dignity, thus viewed, would be given a constant force that is consciously present in those situations in which it is implicated; it would accordingly provide an internally coherent common standard of guidance as an interpretative principle. Consequently, there would be a certain synonymy between dignity and human rights. 261 Importantly, however, this would not merely play out on a constitutional level; rather, as explained above for the positive rights approach, other rights protected through common law or statute could easily be infused with this dignity component. In sum, and in a semantic irony, the negative right to dignity acts as a suprapositive principle. 262 The practical implication for this application of the right to dignity would be, over time and through the development of legal rules and doctrine, the enunciation of some minimal standards of conduct to which the government has to adhere. Granting citizens this right then provides not only the moral justification to challenge government behavior that debases, degrades, or humiliates, but also the legal means to have that behavior curtailed absent extenuating circumstances. This reflects the Kantian notion of human dignity, by giving this right “a very strong negative sense, viz., independence from the determining causes of the sensible world” that is regarded as supra note 23, at 761 (characterizing dignity as “a value which underlies the Constitution”). 260. See Mary Ann Glendon, Propter Honoris Respectful: Knowing the Universal Declaration of Human Rights, 73 Notre Dame L. Rev. 1153, 1173 (1998) (using this metaphor in suggesting that the right to dignity is the ultimate value captured by the Universal Declaration of Human Rights). 261. See, e.g., Ronald Dworkin, Is Democracy Possible Here?: Principles for a New Political Debate (2006) (equating dignity with human rights); Martha Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership 7 (2006) (articulating a “capabilities approach” to social justice, as part of a set of political principles promoting human dignity). 262. See Gerald Neuman, Human Rights and Constitutional Rights: Harmony and Dissonance, 55 Stan. L. Rev. 1863, 1868–71 (2003).
2011] The Right to Dignity 123 a “purely rational” property of being human. 263 To that end, a “[D]emocratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process.” 264 What is important to note, here, is that the right to dignity would not be a trump card, but rather an element to be balanced against competing interests that would arise on a caseby case basis, something that is not foreign to American law. In fact, the Supreme Court has deployed the concept of dignitary interests as a background norm on many occasions. 265 As noted in Part II, the Court has described dignity as the primary focus of the Eighth Amendment inquiry. Thus, the Court has noted that any punishment must comport “with the basic concept of human dignity” that animates the “core” of the Eighth Amendment. This relationship between the Amendment and human dignity would be examined in every case regarding cruel and unusual punishment, and the court would therefore square the accused state practice with the individual’s dignitary interest. Some cases have implicitly employed this approach, such as when the Court was tasked to decide whether executing the insane constituted a violation of the Eighth Amendment. The Court ruled that the “execution of an insane person simply offends humanity,” 266 and that a “person under the shadow of death should have the opportunity to make the few choices that 263. See William Parent, Constitutional Commands of Human Dignity: A Bicentennial Essay in Honor of Mr. Justice William J. Brennan, Jr., 5 Can. J.L. & Jurisprudence 237, 241–42 (1992). 264. McNabb v. U.S., 318 U.S. 332, 343 (1943). 265. Because U.S. courts have been grappling with the right to dignity as a background norm for some time now, and because this has been explored in detail in Part II.B, it is not necessary to give all the examples that show how foreign states and international regimes are doing the same thing. Suffice it to note that many such examples exist, and the following is a representative sample: Halpern v. Canada (Att’y Gen.), [2003] 65 O.R. 3d 161, 79 (Can.) (explaining how the negative dignity evaluation should be conducted, to wit, as “[t]he assessment of whether a law has the effect of demeaning a claimant’s dignity should be undertaken” from the point of view of “a reasonable person, dispassionate and fully apprised of the circumstances, possessed of similar attributes to, and under similar circumstances as, the group of which the rights claimant is a member”); State v. Makwanyane 1995 (3) SA 391 (CC) at 451 para. 144 (the right to dignity in the South African Constitution was “the most important of all human rights, and the source of all other personal rights”) (S. Afr.); McCrudden, supra note 29, at 702 (citing Station Film Co. v. Public Co. for Film Censorship, 50 PD (5) 661 [1994] (Isr.) (stating that the artistic value of a movie had to be balanced against the need to safeguard human dignity)). 266. Ford v. Wainright, 477 U.S. 399, 407 (1986).
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