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

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136 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65 imperative, but instead provide something more—a statement of collective aspirations to be sought by all participating members of society. Nowhere is this more clearly seen than in human rights declarations, which are templates proclaiming human rights, and as a result might have more value in what they say rather than in what they do or what they are supposed to do. 321 This expressive approach is the main reason why these declarations presuppose “that the assignment of the right has meaning without provision for a judicial office to adjudicate its violation.” 322 It is also the reason why the most important rights are left in their most abstract form. The lack of specificity is in many instances a selfreinforcing value, as if the persistent repetition of a certain theme inscribes “in the very nature of reality” the obvious truth of what is being repeated. 323 The clearest example of the expressive approach to the right to dignity occurs in the preamble of the UDHR, whose very title goes a long way in emphasizing the expressive import desired by those who drafted it. Its rhetoric is allinclusive and mentions its application to “all members of the human family,” who are, according to the document, endowed with “inherent dignity.” 324 Even though the declaration was passed as a nonbinding resolution, and therefore contains neither actionable conduct nor proscriptions on government behavior, the expressive language is meant to represent a crystallized consensus 325 of the international community that indicates its intended hierarchy of values, of which dignity is one of the highest. 321. There are those who disagree with this statement. See Michael Ignatieff, American Exceptionalism and Human Rights 25–26 (Michael Ignatieff ed., 2005). Claiming that the value of these sorts of legal instruments is limited because of their inability to integrate with the particular history and culture of a state being affected: We must ask whether any of us would care much about rights if they were articulated only in universalist documents like the Universal Declaration, and whether, in fact, our attachment to these universals depends critically on our prior attachment to rights that are national, rooted in the traditions of a flag, a constitution, a set of founders, and a set of national narratives, religious and secular, that give point and meaning to rights. Id. 322. William Joseph Wagner, Universal Human Rights, the United Nations, and the Telos of Human Dignity, 3 Ave Maria L. Rev. 197, 201 (2005). 323. See Avery Dulles, Human Rights: Papal Teaching and the United Nations, Dec. 5, 1998, at 14, 15 (attributing this notion to Pope John Paul II and his relationship to human rights in general). 324. See UDHR, supra note 70, pmbl. 325. See Aggelen, supra note 182, at 143.
2011] The Right to Dignity 137 While it is true that “[a] proclamation of a right is not the fulfillment of a right . . . [and] may or may not be an initial step toward the fulfillment of the rights listed,” 326 it is nevertheless an important signal that will, over the course of time, first affect the reputation of those that disregard its exhortations, and later operate to change behavior in consonance with its desired goals. One of the facets of the expressive approach to the right to dignity is that the hortatory language can be found both in legislative materials and in judicial opinions that interpret provisions which themselves might not have a significant expressive element. As to the first category, hortatory clauses are not a novelty in American jurisprudence; both the Constitution (see the “wellregulated militia” language of the Second Amendment) and state constitutions (see the dignity clause of the Illinois Constitution) 327 have them. As to the second category, there are numerous judicial pronouncements concerning the right to dignity that stem from private rights of action or constitutional clauses that do not have facially expressive content. Nevertheless, the right to dignity is invoked to signal the weight to be given the pronouncement. Thus, for example, in the Eighth Amendment context, the right to dignity language appears when the Court wants to make the moorings of its cruel and unusual punishment jurisprudence abundantly clear. The Court emphasized in Trop v. Dulles—which enunciated, over fifty years ago, the modern Eighth Amendment standard—that the very purpose of the Eighth Amendment “is nothing less than the dignity of man.” 328 These rhetorical flourishes are not only confined to the Eighth Amendment context, but reveal themselves at regular intervals. Justice Murphy’s exhortation in his dissent in Yamashita bears repeating: “[w]hile peoples in other lands may not share our beliefs as to . . . the dignity of the individual, we are not free to give effect to our emotions in reckless disregard of the rights of others.” 329 To Justice Murphy, the rhetorical use of “the dignity of the individual” signaled something 326. Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy 15 (2d ed. 1996). 327. See AIDA v. Time Warner Entm’t Co., 772 N.E.2d 953, 957, 961 (Ill. App. Ct. 2002) (construing the dignity clause of the Illinois Constitution to be hortatory and thus comprising neither a cause of action nor a curtailment of government conduct). 328. See e.g. Roper v. Simmons, 543 U.S. 551, 587 (O’Connor, J., dissenting) (referring to “this Nation’s evolving standards of human dignity” within the context of the Eighth Amendment). 329. See Yamashita v. Styer, 327 U.S. 1, 41 (1946) (Murphy J., dissenting from the denial of a petition for certiorari).
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The Right to Dignity Rex D. Glensy - Columbia Law School

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