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

138 COLUMBIA HUMAN RIGHTS LAW REVIEW [43:65
quintessentially American that served as a reminder to the majority
that they were abandoning this cardinal principle of United States
law.
Matthias Mahlmann warns us not to be seduced by the
attractive pathos of dignity rights because its malleability causes
normative danger when it is deployed. 330 Similarly, Justice Scalia has
chimed in by deriding the use of the concept of human dignity as
merely “a collection of adjectives that simply decorate a value
judgment and conceal a political choice.” 331 The thrust of these
criticisms of the expressive approach to the use of dignity rights is
that a reference to human dignity really constitutes an empty
rhetorical shell, because it is so subject to the vagaries of local history
and culture. 332 Indeed, even some of those people who drafted portions
of the UDHR considered that the dignity references added nothing of
substance to the document and thus were to be considered nothing
more than just words. 333 In other words, the right to dignity is used to
disguise an absence of a plausible reason or theoretical basis that
would justify the result being delivered by the deliberative body
(legislative, judicial, or otherwise). Thus, the right to dignity
obfuscates the decision rather than clarifying it, and while it may
convey some expressive messages, it actually does not add anything
to the legal norms being litigated. The sum of this line of criticism is
that such an unhinged use of the right to dignity is ill advised,
because even though it is just meant to be rhetoric, it is nonetheless
subject to considerable manipulation by the unscrupulous jurist,
given the inherent vagueness and ambiguity of the term.
A corollary to this criticism is that, even though an expressive
use of dignity can be empty from a legal standpoint, added danger is
330. See Mahlmann, supra note 12, at 11 (footnote omitted).
331. Planned Parenthood v. Casey, 505 U.S. 833, 983 (Scalia, J.,
dissenting). Curiously, Justice Scalia himself did not shy away from invoking the
right to dignity when it suited his own vocabulary needs. See NTEU v. Von Raab,
489 U.S. 656, 680, 681, 687 (1989) (Scalia, J., dissenting) (arguing that a type of
bodily search is “offensive to personal dignity”).
332. See Fyfe, supra note 4, at 9 (“Dignity appears to have become at times
an empty but rhetorically powerful vessel into which any variety of normative
ingredients can be placed.”). Fyfe also refers to the Canadian Supreme Court’s
references to the right to dignity as an “awkward medley of quotes with differing
dignity conceptions.” Id.
333. See J.P. Humphrey, Human Rights and the United Nations: A Great
Adventure 44 (Transnational Publishers 1984) (stating that the “introduction of
unnecessary philosophical concepts . . . [was] purely hortatory and add[ed]
nothing to the authority of the Universal Declaration of Human Rights.”).