Adding insult to injury: questioning the role of dignity in conceptions of sovereignty.

• Author: Resnik, Judith
• Position: Sympoisum on Treaties, Enforcement, and U.S. Sovereignty

1. CHANGING SOVEREIGNTY AND DIGNITY II. THE IDEA, THE POLITICS, AND THE DEVELOPING LAW OF DIGNITY III. BRINGING THE TERM DIGNITY INTO UNITED STATES SUPREME COURT LAW A. Dignity and the Bill of Rights B. Dignity and the Functional Capacity of Institutions C. Role-Dignity and Immunity from Suit D. Protecting Sovereignty Without Immunity from Suit IV. THE MIGRATION OF INTERNAL TO EXTERNAL SOVEREIGNTY V. REAPPRAISING ROLE-DIGNITY I. CHANGING SOVEREIGNTY AND DIGNITY

   Sovereignty discussions in the United States and elsewhere have multiple dimensions. (1) One set of concerns, which we group under the term "external sovereignty," focuses on the prerogatives of the United States vis-a-vis other nations--to participate (or not) in new legal institutions such as the International Criminal Court, (2) to join (or not) transnational agreements such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), (3) to use (or not) opinions of other nations' courts in the development of domestic legal norms, and to engage (or not) in dialogues through adjudication to articulate international norms. (4) External sovereignty is about the literal and legal power of the United States in its relationship to other nations and to the world community.

   The term sovereignty in the United States is also deployed in reference to relationships among governments within this country's borders. This "internal sovereignty" talk arises when states claim prerogatives of lawmaking free from "interference" by federal law (5) and when Indian tribes seek release from constraints imposed by either states or the federal government. (6) In recent years, the current majority of the United States Supreme Court has revived the language of state sovereignty--proffering it as the basis for invalidating federal legislation altogether (7) or for concluding that federal legislation cannot endow claimants with certain rights against states. (8) The Court's internal sovereignty argument is supported, in part, by characterizing states as bearers of dignitary interests. For example, in 2002, a majority of the Supreme Court proclaimed that "[t]he preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities." (9)

   This turn to dignity as a justification for or as an explanation of state power within the United States is actually a return to an older conception of the sovereign. Monarchs were the sovereigns to whom dignity belonged in eras when ordinary persons were not due such respect and deference. (10) The personal authority and dignity of royalty prompted an elaborate code of interpersonal behavior, replete with rules dictating forms of address and limiting permissible interactions between monarchs and their subjects. (11) As Justice Stevens has explained, "in a society where noble birth can justify preferential treatment, it might have been unseemly to allow a commoner to hale the monarch into court." (12)

   Dignity took a radical turn in the centuries that followed, as it became a quintessentially personal trait of all human beings and a marker of equality. Twentieth century human rights law embodies these premises through proclamations and agreements committing governments to respecting the dignity of all people. (13) Further, during the last several decades, collectives of marginalized persons began to assert a legal right to recognition as status-holding, self-determining nations or as collective rightsholders within either a larger or another polity. (14) These groups are sovereigns of a different sort, sometimes located on land controlled by other polities asserting authority.

   The emergence during the twentieth century of dignity as a right of individuals and the rejection of prior practices of colonization and discrimination against racialized and ethnic groups impose constraints on sovereignty (15) that illuminate the dynamic nature of the content of sovereignty. (16) So do innovations in technology, enabling global markets, making security dependent on cooperation, and diminishing the saliency of geography. (17)

   Some argue that such developments (or democracy itself) undermine the utility and intelligibility of sovereignty, diminished in the wake of growing economic, political, and environmental interdependencies. (18) We think it useful to focus instead on sovereignty's plasticity, no longer signaling total power nor predicated only on physical boundaries but continuing to mark significant amounts of authority and status. Whatever prerogatives governments once had, they cannot--as a legal matter (see human rights law) and as a political matter (see preemptive military strikes beyond one's national borders)--treat human beings with utter disregard and assert sovereignty as an absolute defense to their actions. The rise of dignity (inter alia) has changed the meaning of sovereignty.

   Given the nesting of dignity in personhood, the Supreme Court's insistence on attributing dignity to states is seen by some as either obnoxious or disingenuous. Objections arise from the anthropomorphism in general, (19) and more specifically, from the association of this particular attribute with the state. (20) One argument runs that, even if certain aspects of personality can properly be associated with governmental entities, dignity is not the kind of attribute states ought--as a philosophical, a political, or a legal matter--to claim. Another is that the use of the term dignity in such contexts has no real analytic purchase and deserves no attention in its own right.

   We think that the turn to dignity in sovereignty discussions ought neither to be dismissed nor embraced without puzzling about its deployment as the twenty-first century begins. In this Article, we explore the role that the term dignity plays in U.S. constitutional law. Specifically, we have scanned 200 years of decisionmaking by the United States Supreme Court to learn when, where, and why the word has been used. That excavation in turn yields several insights.

   First, the word dignity was not used in reference to personal constitutional rights in the Supreme Court's jurisprudence until the 1940s in the wake of World War II, (21) when legal and political commentary around the world turned to the term dignity to identify rights of personhood. In such correlation, we identify causation. Without citation or reference to "foreign" sources, the Supreme Court has, since World War II and the Universal Declaration of Human Rights, embedded the term dignity into the U.S. Constitution. (22) As we explain below, dignity talk in the law of the United States is an example of how U.S. law is influenced by the norms of other nations, by transnational experiences, and by international legal documents.

   Second, we argue that the Supreme Court's reinvigoration of doctrines of internal sovereignty by endowing states with dignity is driven in part by anxiety occasioned by the very permeability of our legal system. Repeatedly during the twentieth century, those focused on shoring up the external sovereignty of the United States have relied on claims that the internal sovereignty of this federation requires that the United States limit its involvement with transnational legal and political activities. (23) Both the permeation of U.S. law by international norms and the efforts to ward it off give rise to our third conclusion: Given global activity and technology, U.S. law (and life within this country) cannot be secured against external forces. Rather, this country's law is inevitably in conversation (directly or indirectly) with legal developments around the world. (24)

   Fourth, we believe that as a legal matter, dignity ought not to be reserved exclusively to individuals. Through an analysis of the "caselaw of dignity," we have found many examples of the utility of institutional dignity, enabling a fledgling organization--be it a court or a nation--to function. (25) This form of dignity, akin to the Chayesian concept of sovereignty, (26) entails the idea of an individual or an entity having the capacity to function, to be able (as an instrumental matter) to accomplish something in the world. For clarity, we speak of the dignity accorded to nonhumans as role-dignity, by which we mean that respect is accorded to an entity in order to enable that entity to produce something of value to persons or groups. In contrast, the dignity of people can have instrumental utility but is not justified solely in reference to what other goods it produces but rather as something that inheres in personhood. (27)

   Fifth, and finally, as we will elaborate, (28) legal recognition of institutional role dignity ought to have a narrower ambit than legal recognition of individual dignity. To endorse an entity's claim to role-dignity requires a contextual evaluation of the purposes for which the dignity claim is made and an assessment of the relative power of the entity claiming this attribute. Specifically, because of revised understandings of the import of human dignity, law ought not to rely on institutional role-dignity to permit an entity to avoid accounting for its behavior towards individuals. Because "[s]overeignty, in the end, is status," (29) requiring sovereigns to account for actions through orderly dialogue between individuals, entities, and governments ought not be understood to be an insult to status. Rather than being conceived to be insulting or humiliating, the very practice of adjudication should be seen as a form of recognition of the status of democratic sovereigns, committed to renewing their authority through processes of communication and mutual consent.

   Our approach eliminates a claim of role-dignity as a justification for sovereign immunity. Taken further, it could also be used to abolish sovereign immunity to the extent it exempts sovereigns from explaining their conduct. This approach comports empirically with the...