Dignity in general and in American constitutional law

Anthony_Kennedy_official_SCOTUS_portrait

This week The Nation published my essay on the origins and trajectory of human dignity, in which I engage absorbing and accomplished books by Michael Rosen and Jeremy Waldron.

As usual, my inquiry is into the surprising belatedness of the discovery of dignity as foundational principle — as Jürgen Habermas acknowledged in his own belated turn to the topic, even within the era of his liberal Kantianism, human rights had not required allusion to dignity until the mid-1940s, in any systematic way. Even after 1945 and 1948 and 1949, when dignity was announced as a leading concept in the United Nations Charter, the Universal Declaration of Human Rights, and the German Basic Law, it doesn’t appear that it mattered much to anyone — except, as I observe in the piece, to Christian Democrats and cold warriors. Its currency now is thus something of a puzzle. And one can extend Habermas’s point to the current revival of neo-Kantian normativity in American and now world philosophy, which long ago engulfed Habermas himself of course. It is as if what transpired in real history has repeated itself (whether as farce or not I leave up to you) within the philosophical guild, as dignity was inserted in a second step in systems that had not apparently required it or not originally emphasized it. (The career of Ronald Dworkin, culminating in the extraordinary centrality of dignity in Justice for Hedghogs, is another case in point.)

Of course, to describe things this way is not to explain them. In his own provocative new book The Endtimes of Human Rights, Stephen Hopgood makes this arresting observation: “The increasing use by advocates of the language of ‘dignity’ to anchor human rights can be understood as an attempt to hold ground in the face of eroding authority.” I offer in my essay a further proposed reason for the currency of dignity: it succeeds other more controversial and divisive ideals. None of this is to deny the potential importance of human dignity as a normative precept. But the trouble is that no one owns it. And I am skeptical that it will serve progressive causes well.

Since the review was written last spring, I only had a chance to put a brief allusion to the U.S. Supreme Court decision in United States v. Windsor, which struck down the Defense of Marriage Act as unconstitutional. Some have celebrated the decision as a breakthrough for a long-term anticaste or antisubordination principle for which dignity uncomplicatedly stands in American politics and law. I seriously doubt this is right as a historical matter. Even if it were right, it would have to explain how that long-run continuity coexists with the increasing invocation of dignity in courts, including in the United States, as Reva Siegel and otherexcellent scholars have shown. But leaving history aside, more important is that the text of the Windsor decision itself, by the famously slippery Anthony Kennedy, gives little cause for optimism about the coherence of the concept in current law.

It is simply wrong to assert that Kennedy relied heavily, let alone primarily, on individual human dignity in the opinion. Actually he seems to have crafted a very idiosyncratic approach in which what is “dignified” is marriages recognized in law — a strikingly positivist conception. Indeed, defenders of dignity as a foundation for legal rules should quail at Kennedy’s statement that what matters is not so much individual’s private choice to enter a same-sex marriage but rather the fact that in some places (but not others) this relationship has now been “deemed by the State worthy of dignity in the community equal with all other marriages.” Or, as he puts it on the next page, what matters is “the equal dignity of same-sex marriages, a dignity conferred by the States.” What is being protected here in the name of dignity is hardly the rights of individuals but the autonomy of states. (And as I note in the review, the day before, in striking down a key part of the Voting Rights Act in Shelby County v. Holder, the dignity of the states of the union is the principle that Chief Justice John Roberts cited, in an opinion that Kennedy joined.)

There is an obvious explanation for Kennedy’s approach to marriage: the opinion strikes down a federal statute, but Kennedy wanted to avoid going further and making gay marriage a federal right. The argument that dignity attaches not so much or not primarily to individual and their autonomous choices but to forms of union states have legislatively recognized — thus making them immune to interference by federal law — is clearly a means to an end.

So the fact that dignity figures in Windsor, at least in most of its mentions, in non-individualist and positivist form is a sign that its place in American constitutional law is pretty superficial, not deep. This is not to say that individual human dignity hasn’t served as an important constitutional value in the (recent) past, but it is to say that its headway so far is minimal, and non-existent in areas in which it might seem to count, like the constitutional law governing criminal punishment or the constitutional law governing the economic system. (If I were an advocate of making claims in terms of human dignity, poverty and inequality would provide good places to start.) More important, to adapt a claim in my Nation piece, when the United States was doing relatively better in these latter areas — when it briefly banned the death penalty, for example, or when it came close to constitutionalizing economic and social rights — dignity was nowhere to be found.

What does this tell us?

Those who want an appraisal of the lay of the land, which has become bitterly disputed almost overnight, should ask their libraries to buy a copy of Chris McCrudden’s new edited volume on human dignity, which includes many of the above figures, alongside some of my research on the Irish Constitution of 1937, and investigates how dignity applies to various policy domains over many hundreds of pages.

 

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