Does technology spell trouble with a capital "T"? Human dignity and public policy.

• Author: Hyman, David A.

In recent years, human dignity has attracted considerable attention as a policy standard. From bioethics and constitutional law to torts and the regulation of the Internet, human dignity has seemingly become the most salient touchstone for assessing current policy initiatives Yet dignity is a slippery concept, as illustrated by the opening scene of the movie Singin in the Rain. (1) Set at the premiere of a Monumental Pictures hit, the stars arrive in limousines and walk down a red carpet into the theater. While adoring fans "ooh" and "aah," the screen celebrities grant brief interviews to a prominent gossip columnist. Don Lockwood, played by Gene Kelly, is asked to explain how he became a star. Lockwood responds with a speech in which he claims that he has always lived by a simple motto: "Dignity, Always Dignity."

Lockwood then recounts episodes from his "privileged" upbringing, while the considerably less appealing reality of a hardscrabble childhood is depicted. For example, Lockwood claims to have started his career by performing "for Mom and Dad's society friends," as he is shown tap dancing in poolrooms to harmonica music and collecting thrown pennies from the floor. He talks of accompanying his parents to the theatre ("They brought me up on Shaw, Moliere--the finest of the classics") as he is shown sneaking into B-movies. Playing fiddle in a three-man band in a smoky bar is labeled "rigorous musical training at the Conservatory of Fine Arts." Similarly, "an apprenticeship at the most exclusive dramatics academy" is actually an amateur night audition with a slapstick vaudeville routine. The "dance concert tour at the finest symphonic halls in the country where audiences adored us" is a cross-country tour of obscure hamlets (including Dead Man's Fang, Arizona, and Coyoteville, New Mexico), during which Lockwood is regularly booed off the stage after tap dancing and fiddling.

Lockwood is "spinning" his origins, but the disparity between his words and objective reality implicates some of the difficulties in using human dignity as a meaningful policy standard. It goes too far to suggest that one man's dignity is another man's dishonor, but there are nonetheless broad areas of human existence on which there is little agreement about what behavior is dignified, let alone a consensus that dignity is the correct standard for judging conduct. Part I outlines some of the reasons for these difficulties. Part II considers the history of using dignity as a policy standard for regulating technology and innovation. Part III outlines several ways in which professional norms and forms of discourse undermine the possibility of using human dignity even in those areas where it has considerable saliency. Part IV offers a brief conclusion.

1. PROBLEMS WITH DEFINING HUMAN DIGNITY

   Assessments of human dignity are quite subjective, with considerable variation temporally, (2) chronologically, (3) geographically, (4) and culturally.(5) Social class, religion, wealth, and the degree of industrialization matter as well. (6) There is also a considerable degree of individual variation. Consider whether human dignity is enhanced, diminished, or unaffected by blue laws, capital punishment, cloning, decriminalization of drug possession, gay marriage, genetically-modified food, gun control, legalized prostitution, partial-birth abortion, physician-assisted suicide, prohibition of hate speech, school prayer, school vouchers, state lotteries, and three-strikes laws. Would Ted Kaczynski (the Unabomber), Ted Kennedy, Howard Dean, Zell Miller, George W. Bush, Ronald Reagan, and the Pope have the same answers to that question?

   Even if people agree that human dignity is the appropriate standard for assessing policy initiatives, they are only likely to agree on what is dignified for matters at the extreme end of the policy distribution (e.g., incest, slavery, and cannibalism). On matters that fall closer to the mean (e.g., organ transplantation, cloning, affirmative action, tobacco regulation, church-state relationships, hate crimes, private gun ownership, and euthanasia), the preferences of individual citizens, groups, and nations vary tremendously.

   These preference variations are exceedingly important, since actual behavior (including voting) maps neatly onto these expressed preferences. Given this diversity of preferences, and the inherent subjectivity of those preferences, it is unlikely that we, as a nation, will be able to settle on a single notion of human dignity, let alone be able to apply the resulting standard to a particular policy issue in a way that puts it permanently to rest.

   Abortion provides a useful test case for these claims. Both sides believe with the utmost sincerity that human dignity is on their side. In the thirty-odd years since Roe v. Wade (7) was decided, they have engaged one another repeatedly in the courts, legislatures, and media. Election campaigns have emphasized the candidate's views on judicial bypass procedures, parental consent, and partial birth abortions. Protest marches, boycotts, and demonstrations have been staged; lawsuits and counter-suits have been filed and litigated. The issue has been as thoroughly debated as any other subject in recent history. Yet neither side has been able to persuade the other that human dignity requires the result it advocates. The issue of abortion shows every indication of remaining unsettled for the indefinite future. The attempt by Justices Kennedy, O'Connor, and Souter to conclusively end the debate in Planned Parenthood v. Casey was a complete flop. (8) To be sure, this outcome is not all that surprising when the best these three Justices could come up with was to assert it was all part of the "mystery of human life." (9) Alternatively, the American public may have concluded that the Supreme Court had neither expertise nor authority to decide what issues were appropriately open to public debate.

   The Civil War provides another test case for these claims. Almost 140 years after Lee surrendered, the United States remains sharply divided on the purpose and necessity of the war. In the North, the Civil War is viewed as being solely about (and therefore necessitated by) slavery, an institution widely viewed as the greatest affront to human dignity in the history of the United States. In the South, by contrast, the central issue is perceived to be a conflict between state and federal power, and is therefore widely known as the War of Northern Aggression. (10) Recent attempts to remove Confederate flags from state capitols or change state flags which incorporate Confederate symbols were viewed by many Southerners as a direct assault on their heritage and their dignity. (11) To this day, Maryland s state song is based on a poem intended to push Maryland into the Confederacy--not that the residents of Baltimore needed much encouragement. (12) The first stanza of the song refers to Abraham Lincoln as a despot, and the last verse proclaims that Maryland "spurns the Northern scum." (13) All attempts to change the state song to something less offensive to the dignity of "Northern scum" have proven unsuccessful. (14)

   In short, although there is unanimity of opinion on a handful of issues, perspective matters when it comes to human dignity. (15) Subsidiarity offers one way out of this box, as local decisions are much more likely to reflect majoritarian local preferences--particularly where exit is an option. (16) Yet subsidiarity encourages the development of local variation, and local variation places unbearable pressure on the claim that there is a single coherent notion of human dignity separate from the idiosyncratic preferences of those writing and enforcing the rules. (17)

   The subjectivity of human dignity as a policy standard is compounded by the variability between first- and third-party assessments of dignity. What I consider to be dignified behavior may not comport with your expectations. Worse still, even if I respect your assessment of your own dignity, I may be reluctant to embrace legislation or regulation that reflects that assessment for symbolic or instrumental reasons. Indeed, one might well select a default rule inconsistent with widespread preferences in order to force individuals to conclusively reveal their actual preferences.

   The disputes that periodically erupt over end-of-life care surface these tensions. Most Americans do not wish to receive certain forms of end-of-life care, yet non-treatment has not become the legislatively-mandated default rule. (18) Indeed, some states require "clear and convincing proof" that an individual wishes to terminate treatment, when the opposite approach (i.e., requiring clear and convincing proof to continue treatment) would be more faithful to the actual distribution of preferences regarding end-of-life care in the population. (19) Why then have legislators adopted a default rule favoring treatment? One possibility is that they might have believed that the consequences of erroneous over-treatment are less significant than the consequences of erroneous under-treatment. Alternatively, they might have believed that a default rule mandating non-treatment would undermine society's general commitment to the sanctity of human life. It is not necessary to differentiate between these two possibilities to conclude that first- and third-party assessments of the requirements of human dignity are likely to differ, both frequently and systematically.

   More importantly, variation between first- and third-party assessments of dignity can have real consequences. Consider the Franklin Delano Roosevelt Memorial in Washington, D.C., located just off the Mall next to the Tidal Basin. (20)...