Dignity Rights in a Digital Age

De Tocqueville hated abstraction.  “Nothing is so unproductive for the human mind as an abstract idea,” he wrote.  An abstract word he likened to “a box with a false bottom; you may put in it what ideas you please and take them out again unobserved.”

Imagine his evaluation of a word like “dignity”, especially in association with legal rights -- a word with no fixed definition, inherently ambiguous at its core, capable of light or indiscriminate interpretation,  and carrying no philosophical or political pedigree on the order of rights on banners at the barricade like, say, liberty, equality, and fraternity.  In antiquity only the privileged enjoyed so-called “dignitas” or respect; Aquinas asserted it powerfully in a religious context as an attribute all men share in reflection of God’s image; it was uncoupled from social hierarchy and applied to individuals as late as the Renaissance and applied to the public in general; and eventually it appeared prominently in the work of Immanuel Kant who declared it a legal ideal.  For most of modern history, however, it had virtually no status in law beyond occasional use as a aromatic condiment of sorts, sprinkled on decisions involving age-old rights.

Imagine de Tocqueville’s surprise, therefore, if he were to learn that in the past 60 years, as Weidner University professor, Erin Daly, so ably illustrates in “Dignity Rights, Courts, Constitutions, and the Worth of the Human Person“ (University of Pennsylvania Press), dignity has become an honored value at the international level and in most of the world’s constitutions, invoked in fact far more frequently than other constitutional guarantees.  Mentioned prominently in the Universal Declaration of Human Rights, the United Nation has designated dignity the foundational underpinning of all other human rights.  Germany, Italy, Japan, Israel, and South Africa all have explicit constitutional clauses protecting a “right to dignity”, and an actual, tangible right on its own, Germany expressing it as both a positive right obliging the state to accord dignity and a negative right preventing the state from denying it.   In these countries and in several Latin American ones as well, a right to dignity is actionable; and while in most other countries it is not as yet, some, like India, Canada, and Hungary, with strong references to it in their constitutions, have issued favorable judicial decisions on various claims framed as impairments of human dignity.

The constitutions and courts of other nations , according to Daly, while not identifying an absolute right to dignity,  do associate it with a broad range of subjects involving core rights:  liberty  (abortion, sentencing), equality (discrimination, affirmative action), and fraternity (reputation, civic responsibility).   It affects cases involving civil and political rights (voting, expression, equality), and socio-economic rights (housing, medical care, employment, pensions).    It helps define, and in some cases limit, other rights (life, privacy, criminal punishment).  The constitutional courts of Hungary and South Africa, in fact, have invalidated capital punishment statutes on dignity grounds.  In short, as the author concludes, dignity is ushering in a new foundation for human rights across the globe:  it is how we describe what legal claims people can assert to insist that their humanity be recognized.

In America as well?  The answer is a definitive “No”, as Professor Daly indicates.   Dignity appears nowhere in the Constitution.   Paine, Jefferson, and Hamilton did allude to the “natural dignity of man”, and the idea does appear periodically in the Federalist Papers, but it had little influence on the creation of the foundation documents of the Republic, including the Bill of Rights, and very little on American jurisprudence thereafter.  The Supreme Court has always been much more comfortable attaching dignity to inanimate things such as states, courts, and contracts rather than human beings.  The Court did cite it in Miranda v. Arizona prohibiting police from coercing confessions; and it has applied it in search and seizure cases and most prominently to Eighth Amendment claims by convicted inmates.

However, the Court never mentioned it in Brown v. Board of Education (invalidating racial segregation in schools), Rowe v. Wade (upholding a privacy based right to abortion), Griswold v. Connecticut (invalidating a ban on contraception), Virginia v. Black (upholding limitations on racist speech), and Atkins v. Virginia (invalidating the death penalty  for the mentally retarded).  And despite some dissenting opinions insisting that the Court follow the lead of the rest of the world in promoting dignity rights, human dignity has no constitutional status in the United States and, as the author concludes, is unlikely to attain it anytime soon.        

 That Ms. Daly looks with favor upon the assertion of dignity as a progressive trend in the world’s collective jurisprudence is quite obvious.  To her credit, she recognizes the contradictions inherent in dignity’s protean definition, in abortion cases, for instance, where it could be cited to safeguard a fetal interest in life and just as strongly a woman’s interest in bodily integrity and autonomy, or where it could be applied on both sides of religious veil and speech rights cases.   She concedes the blur that the concept creates between legislative and judicial powers, political theory on the one hand and law on the other, legal rights as such versus entitlements, i.e. access to benefits based on long established, other rights, and religious principles versus legal doctrine.   She identifies its arrival on the world scene so powerfully in large part because of the unmitigated horrors of the Second World War, rather than stemming from the natural evolution of rights in general.  But none of this chills her enthusiasm for dignity as a dynamic new legal concept, value, and right, which she creatively extends and explores in all of its possible dimensions.

What the author does not appear to consider, as de Tocqueville undoubtedly would, are its potential negative consequences.  He would not only point to a possible “false bottom” to the box he mentions, the misuse of its application; but perhaps even more important, the absence of a sturdy “top”.  So ubiquitous, so elastic, so innately attractive  is the word (Who can possibly be against human dignity?) that on the world stage it may represent the mere gloss of agreement to avoid the much harder tasks of meaningful negotiation and concrete action, and among nations unrealistic demands by their citizens for social and economic benefits based on assertions of individual self-determination and self worth that could result, among other things, in dire financial results such as present day Greece, Spain, and Italy are now experiencing.  And it could lead to downright dangerous conclusions when it faced with stark reality.  In an unfortunate bit of hyperbole and overstatement in an otherwise sound and superbly written exercise, the author suggests that the “flipside” of the phrase “Never Again!”  may very well be dignity.   Here, she is flatly mistaken.  The phrase has no flipside, only a possible footnote.   It would read something like, “Go ahead, make my day!”.  And de Tocqueville would surely agree.

 

By: F. Taddeo Jr.

January 7, 2013

 

 

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