American dignity and healthcare reform.

• Author: Rao, Neomi
• Position: Annual Federalist Society National Student Symposium

The concept of human dignity provides a useful reference point for evaluating American exceptionalism in the context of welfare rights. Since World War II, human dignity has emerged as the preeminent value in many modern constitutions and various human rights documents. (1) Particularly in countries that have extensive welfare states, dignity is often about being part of the community, being protected and provided for by the government. (2) In America, however, political and legal discourse link dignity with individual rights and freedom from interference by the State. (3) In this short Essay I explain how different concepts of dignity reflect fundamental disagreements about welfare rights and highlight aspects of American exceptionalism. The traditional American conception of human dignity may resist welfare rights, as can be seen in the current debate about whether and how government should expand healthcare coverage.

1. HUMAN DIGNITY AND WELFARE RIGHTS

   There are a number of different conceptions of dignity, (4) but one understanding of dignity associates this value with social and welfare rights on the grounds that protection and support for human dignity require a certain minimum standard of living, including housing, healthcare, education, and a clean environment. In this view, a person cannot meet the conditions of dignity without certain basic goods. It follows that the community, acting through the State, must provide these essentials for those who are unable or unwilling. (5)

   Dignity as a positive or substantive entitlement to certain goods has been elevated to a constitutional principle or even a right in many countries. (6) Courts have sometimes sought to enforce these welfare and dignity rights, with mixed practical results. As the South African Supreme Court noted, "[t]here can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter." (7) Similarly, the Hungarian Constitutional Court explained that the constitutional guarantee of social security "entails the obligation of the State to secure a minimum livelihood through all of the welfare benefits necessary for the realisation of the right to human dignity." (8) These decisions are representative of a widespread understanding that welfare goods are a basic right in part because they are a prerequisite for dignity.

   These constitutional (not policy) decisions hold that freedom, equality, and human dignity require removing the conditions of poverty and ensuring a certain social welfare minimum. Second-generation economic and cultural rights are distinct from basic political freedoms and pertain to the alleviation of poverty and greater equality of social conditions. These rights reflect a strongly communitarian conception of human dignity as being cared for and protected by the government. (9) A person's dignity depends on being recognized as part of the political and social community and membership in the community includes enjoying a certain standard of living, with state assistance if necessary.

2. AMERICAN DIGNITY

   The positive, communitarian dignity at the heart of the welfare state is not the prevailing one in the United States. In American political and legal discourse, dignity is primarily associated with individual rights, a classical liberal understanding of freedom from interference. As John Stuart Mill said, this is the freedom of "pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs...." (10) From this liberal perspective, the inherent dignity of each individual requires being left alone by the State as much as possible. This inherent dignity emphasizes human agency and overlaps with familiar values of liberty and autonomy.

   As a matter of constitutional law, the U.S. Supreme Court sometimes refers to human dignity, usually alongside negative rights, in part because our Constitution is a charter of negative rights and liberties. (11) The Court has consistently, though not exclusively, treated dignity as a component of individual rights--suggesting that a wide sphere for personal autonomy best respects individual dignity.

   Some examples demonstrate the predominantly American association between dignity and freedom from interference. In the context of the Fourth Amendment, the Court has treated privacy as freedom from government intrusion. (12) Similarly, the Supreme Court has interpreted the First Amendment as protecting the dignity of individuals to speak freely, even when the language used may be offensive or insulting. (13) By contrast, many other countries impose hate speech regulations or other rules governing civility in speech. (14) Such regulations attempt to further the dignity of social recognition by protecting individuals from insults. Hate speech restrictions focus on the harm to the listener and the community, rather than the rights of the individual speaker. (15) The American conception of individual dignity with respect to free speech often stands in sharp contrast to other conceptions that focus on norms of social equality or community membership. (16)

   The Court has associated the Sixth Amendment right to self-representation with individual dignity and choice. Dissenting in Indiana v. Edwards, (17) Justice Antonin Scalia forcefully articulated a conception of individual agency at the heart of the constitutional right:

   [T]he loss of "dignity" the [Sixth Amendment] right is designed to prevent is not the defendant's making a fool of himself by presenting an amateurish or even incoherent defense. Rather, the dignity at issue is the supreme human dignity of being master of one's fate rather than a ward of the State--the dignity of individual choice.... [I]f the Court is to honor the particular conception of "dignity" that underlies the self-representation right, it should respect the autonomy of the individual by honoring his choices knowingly and voluntarily made. (18) In cases about racial equality the Court has focused on the individual when interpreting the Equal Protection Clause, particularly in the context of affirmative action cases. (19) Justice Anthony Kennedy has often linked individual equality with dignity, explaining, "[t]o be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society." (20) In another context he noted, "[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities." (21) In this view, the government respects dignity when it treats citizens equally, not when it gives special preferences based on race or gender. (22)

   These are just a few examples of American constitutional decisions that emphasize the dignity of individual agency and choice. Such emphasis should not be surprising. Human dignity in the context of individual rights appeared in Supreme Court decisions only in the 1940s. (23) The concept has been grafted onto our historical understanding of rights and reflects the traditional liberal understanding of the relationship between the individual and the government that underlies our constitutional system.

   When American judges and politicians emphasize the dignity of individual agency and autonomy, they advance an exceptional American perspective that is found only dimly in other countries where individual, negative liberties are often only one part of a positive, communitarian understanding of rights. (24) In many parts of the world, negative liberal rights are seen as insufficient for human flourishing. Rather a full realization of the individual requires association with and recognition by the broader social and political community. (25) Disputes over the meaning of dignity reflect this difference and often highlight America's distinctive constitutional culture.

   Yet it would be incorrect to suggest that a liberal, individualistic understanding of dignity is the only one in American jurisprudence or political discourse. Rather, there are competing understandings. In the First Amendment context, the Supreme Court often protects a wide degree of speech; however, the Court has upheld the constitutionality of defamation and libel suits in part because they protect the reputational dignity of...