The secret history of constitutional dignity.

• Author: Moyn, Samuel

In the Name of the Most Holy Trinity, from Whom all authority and to Whom, as our final end, all actions both of men and States must be referred, We, the people of Eire, Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial, Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation, And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations, Do hereby adopt, enact, and give to ourselves this Constitution. --Preamble, Irish Constitution of 1937 1. INTRODUCTION

"Dignity" is suddenly everywhere in law and philosophy, even though it has long been in decline in general usage. (1) In a popular view, this prominence is essentially due to World War II's aftermath, when in the shadow of genocide the light of human dignity shone forth. More specifically, it is dignitarian constitutionalism that re-founded public law for our time. The concept of dignitarian constitutionalism channeled Immanuel Kant's pioneering Enlightenment insistence on inherent human worth into the UN Charter (1945), the Universal Declaration of Human Rights (1948), and the German Basic Law (1949), all three of which begin with the dignity of the individual as basic principle. In this conventional wisdom, Germans after the Holocaust went furthest to rethink constitutionalism, and their example of how to defend human dignity was later taken up in South Africa and beyond. (2) Though it took some time, dignity has since proceeded in the last few decades, in tandem with the larger fortunes of international human rights law, to become a crucial watchword, going global in various constitutions and international treaties, and offering judicial guidance for the protection of basic values. (3) Certainly it is true that interest in dignity swarms in legal cases and philosophical discussions today in ways that demand explanation, and the current dispute among judges and commentators about how to interpret dignity provisions is not uninteresting. But is the conventional wisdom about where dignity came from correct in the first place?

The notion of dignity was not necessary to constitutionalize rights, either in 1776 in Virginia or in 1789 in France--or again in 1946 in France, when the country not only relit its constitutional torch but drew on the flame of constitutional rights guarded by Central and Eastern Europeans in the 1920s. (4) Conversely, West Germans writing the Basic Law weren't yet concerned by the Jewish tragedy. And while it is certainly true that Kant occasionally referenced dignity, none of his political disciples have made anything of this fact--and his current philosophical disciples have only started highlighting dignity in the last few years. For that matter, there were no Kantians in Germany of note after World War II (including in the rooms where the Basic Law was prepared and debated), nor really anywhere else. And actually, contrary to familiar beliefs, it was not West Germany that first constitutionalized dignity as a leading principle anyway.

In this essay, I show that individual human dignity entered global constitutional history in an unexpected place and at a surprising time: Ireland in 1937. It risked--and often still risks--transforming the tradition of rights. After all, 1789 and the liberal secular values for which that date stood in European and world history were not popular in the 1930s or even 1940s, and may not have survived the coming of dignity unscathed. More specifically, what first canonized dignity was what 1 call "religious constitutionalism": a new form of constitutionalism navigating between the vehement rejection of the secular liberal state long associated with the French Revolution and the widespread demand for an integrally religious social order. To the extent Europeans did not vote with their feet for fascist regimes in an era when most concluded that secular liberalism had failed, it was religious politics that beckoned, indeed almost everywhere at a time of profound intersection of Christian faith and nationalist sentiment. Outside the Iberian peninsula the new Christian states of the time did not survive the political ecology of either the 1930s, when fascism triumphed, or the 1940s, when fascism died. But, despite the demise of the Christian States, Christian Democracy, when it arose after World War II to decades-long dominance in Western Europe, conserved a surprising amount of what came before--notably the central place of religious teachings in public life, including constitutional law. Ireland's early move to Christian Democracy portended the framework that several other Western European countries would take up, which were un-coincidentally the only ones in which dignity had a constitutional presence for a long time.

History matters to the current enthusiasm over human dignity, because while all political and legal concepts are elastic, none ever proves to be exactly as malleable as any other. All bear the marks of their special historical trajectories, so long as partisans of some continuity in their meaning remain to fight on its behalf. This is certainly true of dignity, which emerged as part of an attempt to find a new form of democracy--one that in Europe today, and now many other places too, attracts considerable support. Even when not welcomed precisely because it promises faith a central public role, religious constitutionalism is sometimes justified as a lesser evil--or, even more boldly, as a transitional device for liberals who surmise that there is no alternative for the moment to integral religious politics except a constitutional regime with strong religious features that might later become increasingly peripheral. (5) But while this last approach is understandable, it is little more than a bet. There is no reason to believe that such an intermediate constitutional stratagem itself either staves off the feared alternative, or promotes the desired outcome, even in the long run.

Dignity's origins hardly rule out conceptual evolution thanks to new forces. Yet if dignity's trajectory also suggests that such forces can unexpectedly arise to mobilize constitutional or otherwise fundamental terms and concepts in different directions than at the start, long into the history of their interpretation, it provides no extra solace to the betting man. To be sure, there is no theoretical reason to deny the possibility that these forces can entirely transform the semantic meaning, and political uses, of a concept (or the larger constitution in which it figures) in a spirit they prefer. But the case of human dignity shows that it is equally possible that the results will be an essentially contested notion of little use to further debate and a possible distraction from it--except insofar as judges are successfully assigned the task of interpreting it, at the price of democratic legitimacy, and then only to the extent they do not themselves reproduce the public divisions that the irresolution at the heart of the now disputed concept reflects.

2. TRADITIONS OF CONSTITUTIONALISM: OLD, NEW, AND RELIGIOUS

   Boris Mirkine-Guetzevitch was the obvious person--the right man in the right place at the right time--to have the most developed insight available into the trajectory of constitutionally declared rights and their fledgling post-World War II internationalization. But he did not mention human dignity, let alone celebrate it.

   A Russian-Jewish emigre in Paris and later New York, Mirkine-Guetzevitch (1892-1955) was a founder of the now prestigious discipline of comparative constitutional law. (6) In the 1920s, Mirkine-Guetzevitch had been premier analyst and proponent of "the new constitutionalism"--as he influentially dubbed it. In his view, the vogue of the rights of man in constitutions had primarily come about as a result of World War I, notably in the constitutions of the eastern European states that arose on the ruins of fallen empires. When he published his analytical study of postwar European constitutions in the early 1950s, he registered the restoration of European democracy after World War II but also the return of the progressive tendency to enthrone the rights of man as the first principles of political order. For Mirkine-Guetzevitch, the victory of Allied arms in World War II allowed not for the invention but for the revival of the new constitutionalism he had first identified and justified. (7)

   The old constitutionalism, even when it involved a written constitution, didn't typically proceed from the rights of man. The French tradition from 1789 took the Virginian example of 1776 to the national level where the Americans that same year had decided not to proceed (the framers had merely appended a bill of privileges to their federal constitution under pressure). But this 1789 tradition was spurned when it came time to found the French Third Republic in 1870-77. Through modern times, and indeed long after World War II, the British were proud of disdaining written constitutionalism, to say nothing of the constitutionalization of rights. Notwithstanding some Latin American ventures, the end of World War I, therefore, was the true inflection point for the global ascendancy of constitutionally announced rights; and for Mirkine-Guetzevitch it always seemed as if constitutionalism based on les droits de l'homme succeeded by easternizing. The best, albeit short-lived, example remained the Weimar constitution, but in fact all of the post-imperial states from the Rhine to the Urals had enshrined rights in a similar manner. (8) After the retrieval of this tradition by the Resistance, the post-World War II consensus about human rights, as signaled by the United Nations...