Litigating dignity: a human rights framework.

• Author: Kalb, Johanna
• Position: Chief Judge Lawrence H. Cooke Fifth Annual State Constitutional Commentary Symposium

1. INTRODUCTION

   Prompted by the horrors of World War II, the General Assembly of the United Nations proclaimed the hortatory Universal Declaration of Human Rights ("UDHR"). (1) Among other guarantees, the UDHR speaks to the right to human dignity, promising that "[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." (2) In the years that followed the issuance of the UDHR, the notion of a protected right to personal dignity began to appear in the jurisprudence of state and federal courts in the United States. The United States Supreme Court has even adopted this term when discussing "the Eighth Amendment prohibition on cruel and unusual punishment; the Fourth Amendment protection against unlawful searches and seizures; the Fourteenth and Fifth Amendment rights to be free from discrimination, and the Ninth and Fourteenth Amendment rights to make one's own decisions on procreation." (3) Dignity also appears in both the text of some state constitutions and, as I will explore more thoroughly below, in other non-constitutional state court jurisprudence.

   In addition to its appearance in domestic litigation, the notion of a right to dignity has assumed a prominent role in many international human rights instruments enacted since the UDHR, as well as in the laws of other nations. For example, the importance of personal dignity appears frequently in the Convention on the Rights of Persons with Disabilities ("CRPD") and ties its signatories' commitment "to promote respect for the inherent dignity of all persons with disabilities" (4) with their obligation to promote, among other things, access to education and healthcare. (5) Dignity is emphasized in the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), which draws an explicit link between the UDHR's commitment to dignity (6) and the Convention's goal of ending discrimination against women. (7) The significance of human dignity is also emphasized in the constitutive documents of many countries, including Germany, (8) South Africa, (9) and Israel, (10) and in several regional human rights instruments. (11)

   Interestingly, despite the parallel development of the dignity concept in the domestic and international realms, only rarely have they explicitly overlapped. That is, only on rare occasions have United States courts--state, federal, or territorial--considered international conceptions of "dignity," even those embodied in the human rights instruments signed and ratified by the United States, when discussing the role that dignitary interests have to play in resolving the claims before them. In recent years, scholars and human rights advocates have sought to amplify this connection as part of a broader attempt to situate the resolution of domestic legal claims within an international human rights framework. Particular attention has been paid to the potential for using human rights principles to inform state constitutional interpretation, given the frequent parallels between the rights guaranteed in international instruments and the positive rights provisions in some state constitutions. Thus, scholars have argued for consideration of international standards when, for example, state courts are interpreting constitutional guarantees for welfare or education. (12)

   The connection between international guarantees and domestic rights is particularly pronounced in the context of dignity claims because of their common source in the post-War discourse and in the founding documents of the United Nations. As Professor Vicki C. Jackson has explained, the dignity provisions in the constitutions of Montana and Puerto Rico draw both directly and indirectly from the text of UDHR for their foundational principles. (13) Thus, she contends that "students of transnational human rights discourse would do well ... to pay attention to the multiple fora for the development, diffusion, and articulation of foundational concepts of human dignity." (14)

   Although Professor Jackson focuses on state constitutional jurisprudence, her conclusion has broader implications. Even a cursory review of state court decisions demonstrates that dignity as a concept appears in many contexts in state jurisprudence, and that the recognition of a right to human dignity is widely accepted, if not well-defined and understood. This essay proposes a strategy for "litigating dignity," not only in those states in which dignity is an explicit constitutional principle, but more broadly, drawing on the many cases in which dignity animates state court decisionmaking on a wide variety of statutory, administrative, and common law claims. These references in state court opinions offer opportunities for advocates to situate their arguments within a broader human rights framework by connecting the courts' recognition of dignity and the concept's grounding within international human rights law. They thus allow advocates to bring human rights principles to bear on a wide variety of substantive legal claims that state courts have determined to be intrinsic to basic human dignity--even in the absence of a particular state constitutional provision--either as to the dignity principle or as to the substantive right at issue. This is not to suggest that courts themselves cannot simply look to comparative and international experience without the mediating influence of the recognized dignity concept. Rather, my contention is that the courts' recognition of a personal dignity right provides a channel for joining the ongoing parallel international and domestic discourses.

   This essay proceeds in two parts. Part II traces the origins of dignity to highlight the historical connection that ties the international conceptions of this term with its domestic manifestations. It then documents the appearance of the dignity concept in state court jurisprudence to demonstrate the breadth of opportunity that litigating dignity presents. Part III considers how advocates could use the dignity concept as a channel through which to introduce a human rights-based framework into the consideration of a broad variety of substantive legal claims.

2. THE ORIGINS OF DIGNITY

   Although references to human dignity now permeate state and federal case law, this was not always the case. Judith Resnik and Julie Suk reviewed nine hundred opinions of the United States Supreme Court in which the term "dignity" appears, and made the following findings:

   During the eighteenth and nineteenth centuries, the Supreme Court mentioned the word 'dignity' only in terms of entities such as sovereigns and courts. Moving forward to the twentieth century, ... the word becomes linked to persons. It was not until the 1940s--the decade of World War II and the Universal Declaration of Human Rights--that the Court embraced dignity as something possessed by individuals. (15) Resnik and Suk identify "[i]n such correlation ... causation." (16) In other words, they claim that "dignity talk in the law of the United States is an example of how U.S. law is influenced by the norms of nations, by transnational experiences, and by international legal documents." (17)

   Although their study focused on federal law, the appearance of the notion of personal dignity follows a similar timeline in state court jurisprudence. A Westlaw search for the terms "human dignity" or "personal dignity" yielded 2721 cases. (18) The frequency of these citations appears to have increased dramatically in recent decades, which may be attributable in part to the increased availability of these decisions electronically. Over 2000 of these citations have occurred in opinions rendered since 1992. (19) By contrast, only twenty-one of the decisions predate the Universal Declaration of Human Rights, and only seventeen predate the onset of World War II. (20)

   In the majority of the pre-war cases...