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

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124 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 remain available” under those circumstances. 267 The Court hinged its opinion on the notion that awareness of one’s own surroundings was a necessary component to humane punishment and that the absence of this component negated an individual’s dignitary interest. According to the Court, “a cruel punishment is one that treats the offender as though he or she were not a human person with a claim to our concern as fellow persons, but as a mere animal or thing lacking in basic human dignity.” 268 The Court has similarly deployed dignity as a background norm in cases presenting other issues. As described in detail above, prisoner treatment cases exhibit much of the positive rights approach but also include a significant negative component that has dignity as its motivating seed. 269 Search and seizure law also follows this example. 270 Similarly, “the constitutional foundation underlying the privilege [against selfincrimination embodied by the Fifth Amendment] is the respect a government—state or federal—must accord to the dignity . . . of its citizens.” 271 Further, physical intimidation is not necessary to trigger a constitutional violation because nonphysical threats are “equally destructive of human dignity.” 272 Straying from the Miranda approach to the Fifth Amendment “can only lead to mischievous abuse of the dignity the Fifth Amendment commands the Government afford its citizens.” 273 In other words, the ultimate guardian against abuse by the government, with which the government cannot interfere, is the right to dignity. 274 267. See Richard J. Bonnie, Panetti v. Quarterman: Mental Illness, the Death Penalty, and Human Dignity, 5 Ohio St. J. Crim. L. 257, 277 (2007–2008). 268. John F. Stinneford, Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity, 3 U. St. Thomas L.J. 559, 566 (2006). 269. See e.g., Johnson v. Avery, 393 U.S. 483, 485 (1969) (pertaining to a prisoner’s right to access the courts); Pell v. Procunier, 417 U.S. 817, 822 (1974) (right to free speech); Cruz v. Beto, 405 U.S. 319, 322 (1972) (right to worship). 270. See Mapp v. Ohio, 367 U.S. 643, 655–57 (1961). 271. Miranda v. Arizona, 384 U.S. 436, 460 (1966). 272. Id. at 457. 273. Doe v. United States, 487 U.S. 201, 219 n.1 (1988). 274. Similarly, racial discrimination has been characterized as a deprivation of personal dignity and thus a violation of the Equal Protection Clause. See Heart of Atlanta Motel v. United States, 379 U.S. 241, 291–92 (1965) (Goldberg, J., concurring). Gender discrimination has as well because the inherent stereotyping involved denigrates the individual’s dignity. See J.E.B. v. Alabama, 511 U.S. 127, 142 (1994) (holding that striking potential jurors on the basis of gender was an unconstitutional violation of the Equal Protection Clause).
2011] The Right to Dignity 125 First Amendment cases probably present the most nuanced version of the negative rights approach when it comes to the right to dignity. 275 The Supreme Court seems to have agreed with him, noting that “the right to live in human dignity,” which is a basic guarantee of the Constitution, is a key principle embodied by the First Amendment. 276 In challenges to the freedom of speech, there could be dual dignity interests at play: that of the speaker and that of the subject of that speech. That scenario would be especially true where the First Amendment is asserted as a defense against a defamation suit. In such circumstances, the negative right, i.e., the proscription on governmental interference with the dignitary interests of a speaker, would probably be a tipping point in the analysis, and would usually favor the speaker. 277 Nevertheless, not all limitations on speech would trigger a negative analysis of dignitary interests. Commercial speech, for example, might seem immune from this kind of framework (although, given the Citizens United 278 case, it is difficult to predict how the Court would construe commercial speech), but certainly any speech that would relate “to the essence of the individual’s right to express . . . herself” would likely involve some version of “degrading treatment that violates human dignity.” 279 These examples show that the negative treatment of the right to dignity has been present in American law for some time now, particularly in Supreme Court jurisprudence with respect to a host of different constitutional rights. Thus, possible criticisms levied at employing the right to dignity in this way would differ from those illustrated above. Such criticisms would probably take the form of admonishments not to add “new rights” to the Constitution, or 275. See generally, Ronald Dworkin, Liberty and Pornography, N.Y. Rev. of Books, Aug. 15, 1991, at 12, 15. (noting, for example, that the freedom to publish pornography may be contradictory if it results in the silencing of women. “[A] woman’s speech may be silenced . . . by . . . images that change her audience’s perceptions of her character . . . and also . . . change her own sense of who she is and what she wants.”). 276. See N.Y. Times v. Sullivan, 376 U.S. 254, 256 (1964). 277. The right to abortion also creates scenarios pitting competing dignitary interests. Here, it is less certain which side of the equation the right to dignity is more likely to help. See, e.g., Gonzales v. Carhart, 550 U.S. 124, 157 (2007) (dignity interests curtailed the rights of others in the prohibition of certain lateterm abortion procedures deemed constitutional partially out of “respect for the dignity of human life.”). 278. Citizens United v. Fed. Election Comm., 130 S.Ct. 876 (2010). 279. David Kretzmer, Human Dignity in Israeli Jurisprudence, in D. Kretzmer & E. Klein, The concept of Human Dignity in Human Rights Discourse 161, 174 (2002).
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