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

126 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65
exhortations not to embark down a road that is unclear and open to
suggestion. The response to the criticisms would be: (1) courts in the
United States have already referenced the right to dignity enough
times that nothing about developing a specific dignity jurisprudence
would be totally “new”; and (2) given the ad hoc nature in which it is
being deployed, it is the current state of use of dignity rights that is
unclear, and therefore the proposal for a negative rights approach to
dignity rights is merely trying to bring order to this area, which
critics should welcome. Indeed, Supreme Court decisions reflect how
it is possible for the dignity of humanity to be expressed in its most
universal form. Through the operation of law, the right to dignity
becomes both the right being fostered and protected, as well as the
justification for protecting it. It serves to reinforce those rights that
we are most familiar with and to provide a grounding root that
reaches beyond the state to a realm where rights are considered
inherent rather than granted: “The value of legal norms often lies in
what a legal system takes for granted, and thus what may stand
beyond the immediate purview of political and judicial actors and
other participants in and observers of the system.” 280 The negative
approach to the right to dignity fits neatly into this definition. As
aptly summarized by a commentator, the negative right to dignity,
i.e., its role as a background normative principle of law, is simply the
“‘right to have rights.’” 281
C. Heuristic – The Proxy Approach
The first two ways of approaching a right to dignity within
American jurisprudence treat dignitary rights as existing
independently of other rights, duties, and responsibilities that are
already granted within the legal sphere. Thus, under those
approaches, an injury to an individual’s human dignity could, in
theory, without affecting another cognizable right, give rise to a cause
of action either against a private party or the government (depending,
of course, on who caused the injury in the first place). Under the
proxy approach to the right to dignity, the invocation of a dignitary
interest in a particular circumstance does not signify something
independent of another enumerated right, but rather acts as a proxy
for that right (be that right related to a liberty or an equality interest
for example). In this context, the use of dignity functions as a
heuristic—a cognitive device that serves as an aid to solve a complex
280. Carozza, supra note 79, at 939.
281. See Stinneford, supra note 268, at 592.