Academic

Rao on Dignity in Constitutional Law

By Lawrence Solum

Neomi Rao (George Mason University - School of Law) has posted On the Use and Abuse of Dignity in Constitutional Law (Columbia Journal of European Law, Vol. 14, No. 2, pp. 201-256, Spring 2008) on SSRN. Here is the abstract:

Human dignity has developed into a core value of modern constitutionalism. In the United States, the Supreme Court has referred to human dignity only sporadically, but several justices and a number of scholars have advocated using the concept of human dignity to modernize American constitutional law and to keep in step with the international community. I argue in this Article that acceptance of the modern, largely European conception of human dignity would weaken American constitutional protections for individual rights.

Human dignity as a constitutional concept has drawn its meaning from a European cultural and social context that emphasizes communitarian values, rather than individual ones. In practice, modern constitutionalism prefers balancing and harmonizing rights with other political and social needs. The widespread acceptance of such tradeoffs minimizes the importance of rights because courts review rights as part of a political calculus. By focusing on values such as human dignity, modern constitutionalism deprives rights of their special force. The experience from abroad suggests caution before importing the European ideals of human dignity into American constitutional law.

An interesting paper, but I wonder about an approach that evaluates the role of "human dignity" by its consequences for doctrine.  Isn't the deep question whether human dignity is, in fact, the value that explains basic human rights?  If it is, then how can we avoid reference to it when we interpreted those rights?  (Assuming for the moment that our consittutional jurisprudence should be purposive.)  If dignity isn't at the root of our conception of rights, then how could it do any meaningful work?  But in either case, don't we need to look to the underlying questions of political philosophy?

The author suggests that conceptions of dignity are indeterminate and therefore that resort must be had to the meaning of "human dignity" in particular cultures:

Making a choice among competing dignities will often require minimizing opposing dignities?in the German decision a woman?s privacy or self-determination interests were largely subordinated to the right to life of the fetus;40 and in the American cases the Court resisted determining the scope of fetal life interests, thus allowing greater emphasis on the woman?s privacy and autonomy interests.41

These examples demonstrate that standing alone, dignity cannot answer questions of how rights should be allocated in the common situation in which protecting one person?s dignity may compromise another?s. The indeterminacy of human dignity in the abstract may require that difficult questions of competing dignities be resolved by cultural understandings of what dignities should count. These judgments may have less to do with human dignity as such and more to do with particular conventional or cultural understandings of the meaning of dignity and the priority to be given to this value in different contexts. The principle of human dignity has little meaning in constitutional adjudication apart from external moral judgments about the varying weights to be given to competing dignities. The application of human dignity to determine the allocation of rights will depend on social, historical, and cultural factors that shape national values.

I do not see how the conclusions of the last paragraph follow from the warrants.  First, I should think that the examples (you need to read the article for context, abortion is one of the examples) show that it is possible that specific rights allocations do not follow from the concept of dignity--but the claim made is that "dignity cannot answer questions about how rights shall be allocated."  This is a strong modal claim.  In order to demonstrate that it is impossible for dignity to do the necessary work, the author would need either to show there is no conception of digntity that can specify rights in these cases or demonstrate that the best conception of dignity is capable of specifying rights allocations.  Moreoever, even if dignity alone cannot resolve rights-allocation issues, there is no reason why dignity could not be supplemented by other values (e.g., by the other ingredients in a Kantian conception of morality and politics) and then provide the necessary resources for allocating rights.  Finally, I do not see why the underdeterminacy of dignity must lead to "social, historical, and cultural factors."

Despite these objections, Rao's piece was provocative and certainly worth reading.  Recommended.

Full post as published by Legal Theory Blog on June 18, 2008 (boomark / email).