'The Jurisprudence of Dignity' by Leslie Meltzer Henry in (2011) 160
University of Pennsylvania Law Review 169 comments
Few words play a more central role in modern constitutional law without
appearing in the Constitution than "dignity." The term appears in more than
nine hundred Supreme Court opinions, but despite its popularity, dignity is a
concept in disarray. Its meanings and functions are commonly presupposed
but rarely articulated. The result is a cacophony of uses so confusing that some
critics argue the word ought to be abandoned altogether.
This Article fills a void in the literature by offering the first empirical study
of Supreme Court opinions that invoke dignity and then proposing a typology
of dignity based on an analysis of how the term is used in those opinions. The
study reveals three important findings. First, the Court's reliance on dignity is
increasing, and the Roberts Court is accelerating that trend. Second, in con trast to its past use, dignity is now as likely to be invoked by the more conservative Justices on the Court as by their more liberal counterparts. Finally, the
study demonstrates that dignity is not one concept, as other scholars have theorized, but rather five related concepts.
The typology refers to these conceptions of dignity as institutional status as
dignity, equality as dignity, liberty as dignity, personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity
to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual
chaos surrounding dignity. It provides tools to track the Court's use of different
types of dignity over time. This permits us to detect doctrinally transformative
moments, in such areas as state sovereign immunity and abortion jurisprudence,
that arise from shifting conceptions of dignity.
Henry states that
Justice William J. Brennan, Jr., frequently emphasized that the
fundamental value at the crux of American law is "the constitutional
ideal of human dignity."' He believed that the Constitution, and par-
ticularly the Bill of Rights, expressed a "bold commitment by a people
to the ideal of dignity protected through law." Perhaps to give doctrinal heft to a word that appears nowhere in the Constitution, Justice
Brennan invoked "dignity" in an astounding thirty-nine opinions during his tenure on the Court. Despite the breadth of cases to which he
applied the term, Brennan's tireless efforts to advance a legal notion
of dignity often were discounted either because the term appeared in
his dissenting opinions, or because when dignity appeared in the majority opinions Brennan authored, his opinions represented the "liberal wing" of the Court's jurisprudence.
After a brief period of hibernation during the Burger and Rehnquist Courts, the use of dignity is once again on the rise. The Roberts
Court has issued opinions that invoke dignity in thirty-four cases,
nearly half of those in the last two Terms alone. We would be mistaken, however, to see this as a reascendance of Justice Brennan's "dignity." To the contrary, dignity is now more likely to appear in majority
than in dissenting opinions, and as likely to be invoked by Justice Scalia as by Justice Ginsburg.
Dignity's increasing popularity," however, does not signal agreement about what the term means. Instead, its importance, meaning,
and function are commonly presupposed but rarely articulated. As a
result, contrasting views about dignity's definition, usefulness, and ultimate purpose have emerged.
For some commentators, dignity is nothing less than "the premier
value underlying the last two centuries of moral and political
thought," an essential "basis of human rights," and one of "those
very great political values that define our constitutional morality." Like Justice Brennan, legal theorist Ronald Dworkin has declared that
"the principles of human dignity.., are embodied in the Constitution
and are now common ground in America."
Indeed, few concepts dominate modern constitutional jurisprudence more than dignity does without appearing in the Constitution.
The Supreme Court has invoked the term in connection with the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, Fourteenth, and Fifteenth Amendments.
Other scholars and jurists, however, view dignity as a concept in crisis. Philosopher Ruth Macklin considers dignity "a useless concept" because it does nothing more than offer "vague restatements ... more precise... notions." Law and ethics professor John Harris echoes Macklin's concern, pointing out that the word is "universally
attractive" because it is "comprehensively vague." Meanwhile, philosopher Helga Kuhse contends that as long as dignity is invoked by
people on opposite sides of a debate it is "nothing more than a short-hand expression for people's moral intuitions and feelings."
Despite deep disagreement about its normative, practical, and jurisprudential value, dignity's growing presence in Supreme Court decisions has received scant attention. The literature on dignity is primarily written by philosophers and theologians, who discuss dignity as
a moral value divorced from legal application," or by international
and comparative law scholars, who examine dignity's role in human
rights declarations and in foreign laws. The prominence of dignity
in American constitutional law has gone largely unanalyzed. This
leaves us without a comprehensive understanding of why the Court
has embraced dignity, what types of actions threaten dignity, and how
the Court weighs dignity in relation to other values. Most importantly,
we lack a systematic account of dignity's varied meanings against
which to ponder these questions.
This Article has two related ambitions, both directed at clarifying
the conceptual chaos surrounding dignity's complicated usage. The
first goal is to provide an approach that captures the range of ways in
which the Court invokes dignity. The second is to explore dignity's
judicial function in contemporary constitutional jurisprudence.
Part I of this Article critiques existing theories of dignity and proposes an alternative, Wittgensteinian approach to conceptualizing the
term. Standard accounts contend that dignity is either reducible to
another concept, such as autonomy, or has a core meaning that is applicable across all contexts. Although these views are tidy and attractive,
they tend to draw dignity's boundaries too narrowly or too broadly.
This Article argues against a positivistic claim to dignity's core
meaning and instead contends that dignity has multiple meanings that,
in Wittgenstein's words, share "family resemblances" to each other.
While some dignitary harms can be completely described by one type
of dignity, others admit of complementary meanings. Because this heterodox approach to conceptualizing dignity begins by exploring the
use of dignity in practice, rather than in the abstract, it maintains a degree of coherence absent from the standard approaches.
Part II offers a typology of dignity that explores the compendium
of pluralistic values that the Court embraces when it speaks of dignity.
It provides the results of the first study to examine the use of dignity
in every Supreme Court case from the last 220 years in which the
word appears in an opinion. This research reveals that while a single concept of dignity with fixed boundaries does not exist, five different conceptions of dignity emerge that, although distinct, admit
of some similarities.
Part II proceeds to set forth these conceptions of dignity, which I
refer to as institutional status as dignity, equality as dignity, liberty as dignity,
personal integrity as dignity, and collective virtue as dignity. I first trace each
conception to its epistemic origins in philosophy, theology, or political
theory, and articulate its central features. Then, relying on the Court's
opinions, I illustrate that each conception of dignity has a particular
judicial function oriented toward safeguarding substantive interests
against dignitary harm. Teasing out dignity's different threads permits us to see the work that each conception of dignity is performing
for the Court. It also demonstrates why viewing dignity as only a "liberal" or "egalitarian" value is cramped and stultifying. In contrast, the
typology I propose provides the tools to evaluate what is normatively
and doctrinally at stake in a variety of contexts and equips us with a
framework for future discussions.
