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

2011] The Right to Dignity 141
IV. CONCLUSION
All four approaches presented in Part III above contain
attractive characteristics, and all four have certain shortfalls that can
be addressed (as done above), albeit imperfectly. The key to the
answer should be the ease in which each proposed approach could be
integrated within already existing American jurisprudence. This
guideline is premised not only on the goal of giving the right to
dignity its maximum realistic effect upon U.S. law, but also on the
practical reality that law rarely proceeds with major jolts, but rather
is more adept to cautious incremental change. While a detailed
research agenda—the scope of which exceeds that of this Article—
should be structured to answer the question posed, preliminarily, my
choice would rest on the proxy approach.
The positive rights approach, while probably the most robust
and effective use of the right to dignity, is relatively uncommon in the
United States. Its implementation would necessitate the most radical
rethinking not only of dignity rights, but also of constitutional rights
and causes of action in general. The negative rights approach is
rather tempting, if one believes in the propriety of protecting
dignitary interests; however, the ubiquity of dignity would render its
impact almost meaningless. 340 The expressive approach, in many
ways, is subsumed within each of the other three approaches, because
one cannot detach the hortatory value from the use of the term
without actually using the term, so it will always play a role
regardless of which approach is chosen. Nevertheless, the weakness
with having an approach that is solely expressive is just that—in a
strictly legal sense it has little impact, and in the nonlegal sense it
would be difficult to predict what its influence eventually would be.
The proxy approach is that with which the use of dignity best
fits within presently framed constitutional, statutory, and common
law standards. It requires the least amount of adjustment with
current doctrine and gives the right to dignity its appropriate role
within the constellation of rights that are already protected in the
United States. One might question choosing one approach at all, and
340. This is the main problem with the thesis presented by Maxine
Goodman. She lists a litany of doctrines that would be affected by having dignity
as an underlying norm, and by the end of that list, one is left wondering if there is
anything left. See Goodman, supra note 23, at 753 (“[H]uman dignity . . . underlies
our constitutional rights to privacy, liberty, protection against unreasonable
search and seizure, protection against cruel and unusual punishment, and other
express rights and guarantees.”).