The jurisprudence of dignity.

• Author: Henry, Leslie Meltzer

INTRODUCTION I. A NOTE ON METHODOLOGY A. Reductionism and Essentialism: Deficiencies of the Standard Approach B. Reconceptualizing Dignity: A Wittgensteinian Approach II. FIVE CONCEPTIONS OF DIGNITY A. Institutional Status as Dignity 1. Aristocracy and the Recognition of Rank 2. Bestowing Respect on Government and Its Accoutrements B. Equality as Dignity 1. Egalitarianism and Universal Human Worth 2. Shielding People from Unequal Treatment C. Liberty as Dignity 1. Liberalism and Individual Self-Determination 2. Securing the Conditions for Self-Realization D. Personal Integrity as Dignity 1. Aristotelian Virtue and the Dignified, Whole Self 2. Protecting Individuals from Dis-Integration a. When the Self Is Reduced to a Single Trait b. When the Self Cannot Express Its Wholeness E. Collective Virtue as Dignity 1. Communitarianism and Humanity's Excellence 2. Advancing Notions of a Decent Society CONCLUSION APPENDIX INTRODUCTION

Justice William J. Brennan, Jr., frequently emphasized that the fundamental value at the crux of American law is "the constitutional ideal of human dignity." (1) He believed that the Constitution, and particularly the Bill of Rights, expressed a "bold commitment by a people to the ideal of dignity protected through law." (2) 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. (3) Despite the breadth of cases to which he applied the term, (4) Brennan's tireless efforts to advance a legal notion of dignity often were discounted either because the term appeared in his dissenting opinions, (5) or because when dignity appeared in the majority opinions Brennan authored, his opinions represented the "liberal wing" of the Court's jurisprudence. (6)

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, (7) nearly half of those in the last two Terms alone. (8) 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, (9) and as likely to be invoked by Justice Scalia as by Justice Ginsburg. (10)

Dignity's increasing popularity, (11) 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. (12)

For some commentators, dignity is nothing less than "the premier value underlying the last two centuries of moral and political thought," (13) an essential "basis of human rights," (14) and one of "those very great political values that define our constitutional morality." (15) 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." (16)

Indeed, few concepts dominate modern constitutional jurisprudence more than dignity does without appearing in the Constitution. (17) The Supreme Court has invoked the term in connection with the First, (18) Fourth, (19) Fifth, (20) Sixth, Eighth, (21) Ninth, (22) Eleventh, (23) Fourteenth, (25) and Fifteenth Amendments. (26)

Other scholars and jurists, however, view dignity as a concept in crisis. (27) Philosopher Ruth Macklin considers dignity "a useless concept" because it does nothing more than offer "vague restatements of ... more precise ... notions." (28) Law and ethics professor John Harris echoes Macklin's concern, pointing out that the word is "universally attractive" because it is "comprehensively vague." (29) Meanwhile, philosopher Helga Kuhse contends that as long as dignity is invoked by people on opposite sides of a debate (30) it is "nothing more than a shorthand expression for people's moral intuitions and feelings." (31)

Despite deep disagreement about its normative, practical, and jurisprudential value, dignity's growing presence in Supreme Court decisions has received scant attention. (32) The literature on dignity is primarily written by philosophers and theologians, who discuss dignity as a moral value divorced from legal application, (33) or by international and comparative law scholars, who examine dignity's role in human rights declarations and in foreign laws. (34) 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. (35) 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. (36) 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 (37) and equips us with a framework for future discussions.

1. A NOTE ON METHODOLOGY

   This project will raise eyebrows among "dignity skeptics," those who fear the term is useless, and "antidignitarians," who are certain that it is. They are understandably wary of more "dignity talk." (38) But even if they recoiled as former President George W. Bush vaguely referred to "the non-negotiable demands of human dignity," in his second State of the Union Address, (39) or as former President Bill Clinton repeatedly emphasized the universal value of human dignity in his weekly radio addresses, (40) they cannot claim that the Supreme Court's reliance on dignity is inconsequential.

   In the last 220 years, Supreme Court Justices have invoked the term in more than nine hundred opinions. (41) The Justices issued nearly half of these opinions after 1946, (42) when the phrase "human dignity" first appeared in an opinion, (43) with more than one hundred opinions authored in the last twenty years alone. (44) As Figure 1 illustrates, the percentage of Supreme Court cases that invoke dignity per Term is increasing at a statistically significant rate (two-tailed p-value = 0.001), and the Roberts Court appears prepared not only to continue, but also to accelerate, this trend. (45)

   [FIGURE 1 OMITTED] (46)

   Notably, while the use of dignity in dissenting opinions has remained relatively stable during the last sixty-five years (Figure 2), the Court's reliance on dignity in majority opinions is increasing at a statistically significant rate (two-tailed p-value = 0.004) (Figure 3).

   [FIGURE 2 OMITTED] (47)

   [FIGURE 3 OMITTED] (48)

   Although the Court's frequent invocation of a word does not always signal increasing jurisprudential reliance on the underlying term, I argue that in this instance, the correlation holds. The Court's repeated appeals to dignity, particularly in majority opinions, appear to parallel its greater willingness to proffer dignity as a substantive value animating our constitutional rights. The Court has declared, for example, that the "overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State"; (49) that dignity is "the constitutional foundation underlying" the Fifth Amendment privilege against self-incrimination; (50)...