Three concepts of dignity in constitutional law.

• Author: Rao, Neomi

The U.S. Supreme Court and constitutional courts around the world regularly use the term human dignity when deciding cases about freedom of speech, reproductive rights, racial equality, gay marriage, and bioethics. Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning. A close review of constitutional decisions, however, demonstrates that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values. Using the insights of political theory and philosophy, this Article identifies three concepts of dignity used by constitutional courts and demonstrates how these concepts are fundamentally different in ways that matter for constitutional law. In contentious cases, the concepts of dignity will often conflict. If constitutional courts continue to rely on human dignity, judges must choose between different understandings of dignity. This Article provides the groundwork for making these choices and defending a concept of dignity consistent with American constitutional traditions.

INTRODUCTION I. THE ORIGINS OF THE LEGAL CONCEPT OF DIGNITY II. INHERENT DIGNITY A. Dignity as Intrinsic Human Worth B. Inherent Dignity and Negative Liberty C. Dignity as Intrinsic Worth in Judicial Decisions 1. Privacy 2. Sixth Amendment Right to Self-Representation 3. Ordered Liberty 4. Sexual Autonomy 5. Free Speech 6. Race and Gender Equality 7. Inherent Dignity Abroad D. Dignity and Autonomy at Odds? III. SUBSTANTIVE CONCEPTIONS OF DIGNITY A. Communitarian Dignity or Dignity as Coercion 1. The Concept 2. Examples of Dignity as Coercion a. Dwarf Throwing b. Bans on the Full Veil or Headscarves c. Prostitution and Pornography d. Self-representation e. Abortion f. Bioethics B. Dignity and Social-Welfare Goods C. Substantive Dignity at Odds with Inherent Dignity IV. DIGNITY AS RECOGNITION A. Recognition and the Socially Constituted Self B. Dignity as Recognition 1. Recognition by Others a. Hate Speech b. Defamation: Dignity and Reputation 2. Public Recognition and Respect a. Sexuality and Gender: Dignity of Social Inclusion b. Racial Equality: Separate Is Not Equal c. Socioeconomic or Material Equality C. The Difficulty of Dignity as Recognition CONCLUSION; CHOOSING DIGNITY INTRODUCTION

A person who wants to wear a jacket that says "F--the draft" can do so because of the individual dignity at the heart of the First Amendment. (1) A dwarf cannot make his living by being thrown for sport because to allow this spectacle offends the dignity of the dwarf and the community. (2) Gay couples have the constitutional right to marry, not just enter into civil unions, because exclusion from the institution of marriage fails to recognize the dignity of gay couples. (3) Different concepts of dignity played a role in each of these decisions and hundreds more around the world in the adjudication of civil rights and liberties. In the last Term alone, the Supreme Court referred to dignity in a number of cases touching on diverse issues such as gun rights under the Second Amendment, free speech and campaign finance rules, and the death penalty. (4)

As a fundamental precept of human rights and basic liberties, dignity really took hold after the Universal Declaration of Human Rights stated: "All human beings are born free and equal in dignity and rights." (5) But even in the Universal Declaration, the start of international efforts to protect human dignity, the drafters disagreed about the meaning of human dignity. (6)

Today, widespread adoption of dignity in modern constitutions and human rights documents has not led to any greater consensus-rather different conceptions of dignity remain. The fact that "dignity" is an important yet slippery concept has become commonplace. Relatively underappreciated, however, particularly in the legal literature, (7) is how the various concepts of dignity reflect different underlying conceptions of individual fights within a community. The differences are more than philosophical or semantic disagreements--different conceptions of dignity have important practical consequences for the understanding and adjudication of rights.

When courts rely upon dignity, they implicitly appeal to a particular understanding of dignity--judges invoke dignity to add something, even if that something is not always clear. Constitutional courts around the world, including the U.S. Supreme Court, regularly use the term dignity or human dignity as if it matters. Since these opinions decide important issues and serve as precedents for future cases, the meaning of dignity matters because it is an interpretive principle used to understand rights and liberties. Figuring out the "something" denoted by dignity is the project of this Article.

Following in the spirit of Isaiah Berlin's famous essay Two Concepts of Liberty, (8) this Article identifies three concepts of dignity used by constitutional courts and examines their foundations and applications. (9) As a general concept, dignity poses a fundamental question: what type of respect can a person demand from others and from the state? The three conceptions identified here each provide a different answer to what generates dignity or respect in the individual or in groups of individuals. By looking at specific cases, this Article will identify and demonstrate how constitutional courts have used different conceptions of dignity when adjudicating individual rights. Separating out and explaining the various meanings of dignity reveal their fundamental differences and should provide greater transparency about what courts are doing when they invoke dignity.

First, in its most universal and open sense, dignity focuses on the inherent worth of each individual. (10) Such dignity exists merely by virtue of a person's humanity and does not depend on intelligence, morality, or social status. Intrinsic dignity is a presumption of human equality--each person is born with the same quantum of dignity. Moreover, inherent human dignity does not establish an external measure for what counts as being dignified or worthy of respect. Rather, such dignity inheres in all individuals without appraisal by any other standard. Inherent dignity focuses on human potential--not the exercise of such potential. It does not judge whether a person's reasoning, choices or criteria for self-worth are "dignified." Accordingly, inherent dignity is pluralistic and remains neutral about different conceptions of the good life. In constitutional law decisions, particularly in the United States, intrinsic dignity is reflected in decisions about freedom from interference by the state in areas such as freedom of speech, privacy, and sexual relationships. This dignity encompasses the liberal notion of negative freedom--of creating a space for individual choice. On this view, restraint or removal of state interference maximizes dignity because it leaves the individual free to exercise his autonomy in whatever fashion he should choose consistent with the rights and freedoms of others.

Second, dignity can express and serve as the grounds for enforcing various substantive values. (11) Unlike intrinsic dignity, substantive forms of dignity require living in a certain way. Dignity may require behaving, for example, with serf-control, courage, or modesty. This dignity embodies a particular view of what constitutes the good life for man, what makes human life flourish for the individual as well as the community. Accordingly, such dignity may take a number of different forms. For example, a government policy may enforce a particular conception of dignity on individuals, a conception that accords with the community's view of what is dignified. Dignity in this sense depends on specific ideals of appropriateness and deems a person worthy or dignified to the extent that he conforms to such ideals. Constitutional courts have often upheld paternalistic policies that prevent individuals from choosing a vocation or a way of life that might be "undignified" in the view of the social and political community. For example, in France some cities banned the spectacle of dwarf throwing as detrimental to public morality and dignity, despite the willingness of some dwarves to earn their living this way. (12) Similarly, the French government has defended a ban on the burqa on the grounds that such a ban furthers the dignity of Muslim women, despite the fact that some Muslim women choose to wear the burqa as an expression of their faith. (13) Positive or substantive conceptions of dignity are also associated with social-welfare rights or protection by the state from poverty and violence. In this understanding, dignity demands that the government provide the basic conditions of well-being. Each of these positive or substantive forms of dignity requires living according to standards of rationality, morality, or material comfort that are shaped by the community. This dignity is not intrinsic or inherent in the individual, because it can be gained or lost and depends on whether a person measures up to a socially defined standard of dignity.

Finally, constitutional courts often associate dignity with recognition and respect. (14) This dignity is rooted in a conception of the self as constituted by the broader community--a person's identity and worth depend on his relationship to society. Accordingly, respect for a person's dignity requires recognizing and validating individuals in their particularity. This recognition requires individuals to demonstrate respect and concern for each other. What matters here is not just having a space of non-interference for one's inherent individual dignity or of living life with a particular dignity, but rather the attitude possessed by others and the state. Such dignity requires interpersonal respect, the...