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

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70 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 not see it as a right to be protected. 24 It is, of course, undeniable that the word “dignity” does not appear even once in the Constitution. 25 For this reason, some have concluded that “protecting people’s dignity is quite alien to the American tradition,” 26 and that its use is akin to that of the “Trojan Horse,” a benign exterior masking a horrific interior, in that the vague nature of dignity rights conceals troubling complications. 27 Therefore, these critics have argued that because “[i]ntangibles such as the promotion of human dignity . . . are too nebulous for progress toward achieving them to be measured,” they are best left alone. 28 Despite the exhortations by skeptics not to incorporate human dignity within the framework of American legal rules, such advice is going unheeded. Jurists at all levels—state, federal, trial, and appellate—are referencing the right to dignity in resolving disputes and announcing legal rules. Further, these references do not always involve constitutional values; sometimes the issue of human dignity arises in the context of private disputes involving common law or statutory rules. Therefore, it is important to stress that the concept of dignity in the United States should not be bound to the constitutional text. Because dignity rights eschew easy definitional formulations, this myopic focus—in arguments made by advocates as well as critics of the role of dignity—on the Constitution as the sole possible framework for dignity rights is unproductive. Any useful proposal for the application of dignity rights within the ambit of domestic law must certainly encompass all law, and not just that which stems from the Constitution. Nevertheless, prudence in the use of the term “dignity” should be counseled, given its extremely broad possible connotations, which, if left unharnessed, would inevitably lead to confusion, unpredictability, and weak reasoning. As noted by Christopher McCrudden in his seminal article on the role of dignity in human 24. See, e.g., James Q. Whitman, “Human Dignity” in Europe and the United States: The Social Foundations, in European and US Constitutionalism 95 (Georg Nolte ed., 2005) (elaborating on the basic weakness of dignity as a human right). 25. For further discussion of constitutional interpretation issues, see infra section II.B.1. 26. James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 Yale L.J. 1151, 1221 (2004). 27. See Peter Schneider, Die Menschenrechte in staalicher Ordnung, in Philosophie der Menschenrechte und der Grundrechte des Staatsbürgers 77, 83 (1964). 28. Richard A. Posner, The Problems of Jurisprudence 123 (1990).
2011] The Right to Dignity 71 rights law, “there are several conceptions of dignity that one can choose from, but one cannot coherently hold all of these conceptions at the same time.” 29 It follows that the concept of dignity within a legal framework “acquits itself of no immediate[] . . . definitional parameters,” which creates incentives for jurists “to act instrumentally” when bringing dignity into the framework of a legal decision, in order to advance their personal value judgments. 30 It is this perceived incoherence, as well as the fear that judges will have unchecked discretion under the dignity umbrella, that animates the critics’ argument. For this reason, this Article presents possible theories that would provide a unified network under which the concept of the right to dignity could flourish in the United States. In that light, Part II of this Article takes a brief look at what has been written about the concept of human dignity in conjunction with domestic and international references to the right to dignity. It also examines how this concept is used within the context of international law. This part demonstrates that the notion of human dignity does indeed form the basis of several legal doctrines, both domestically and around the world. However, the treatment of those rights that are traceable to human dignity is very uneven, and the different contexts in which this occurs leads to the conclusion that (with very few notable exceptions) no unified, coherent jurisprudence has been developed around this core concept. Part III then explores what the usage of dignity rights might signify within the confines of a contemporary American legal framework. It posits that at least four different options exist for what the right to dignity could mean in the United States, given the way in which courts throughout the country have thus far framed the contours of the right. Those four theories are as follows: (1) the positive rights approach, where dignity becomes an actionable substantive legal right; (2) the negative rights approach, where dignity functions as a background norm; (3) the proxy approach, where dignity is used as a heuristic for other enumerated rights; (4) and the expressive approach, where dignity is referred to dialogically. The Article concludes by noting that coalescence behind any one of these four possibilities is imperative, 29. Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 Eur. J. Int’l L. 655, 723 (2008). 30. Castiglione, supra note 2, at 697.
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