Three concepts of dignity in constitutional law

Notre Dame Law Review

Volumn 86, Issue 1, 2011, Pages 183-272

  Rao, Neomi ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 79957438262     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (529)

1. See Cohen v. California, 403 U.S. 15, 24 (1971).
2. See Wackenheim v. France, CE Ass., Oct. 27, 1995, Rec. Lebon 372, aff'd Commc'n No. 854/1999
3. Human Rights Comm., July 8-26, 2002, CCPR/C/75/D/ 854/1999 (2002).
4. See In re Marriage Cases, 183 P.3d 384, 400 (Cal. 2008), superseded by constitutional amendment, CAL. CONST, art. 1, §7.5,
5. as recognized in Strauss v. Horton, 207 P.3d 48, 122 (Cal. 2009);
6. Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 466 (Conn. 2008).
7. See McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) (addressing dignity in the Second Amendment context);
8. Citizens United v. FEC, 130 S. Ct. 876 (2010) (discussing whether restrictions on corporate expenditures impacted the dignity of free expression);
9. Wellons v. Hall, 130 S. Ct. 727 (2010) (per curiam) (noting that judicial proceedings relating to a death penalty case must be conducted with "dignity and respect").
10. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/ RES/217(III), at art. I (Dec. 10, 1948) [hereinafter Universal Declaration of Human Rights].
11. The world community chose dignity in the Universal Declaration of Human Rights precisely because the term was open enough to hedge controversial judgments between different cultural values. See infra Part I;
12. see also MICHAEL IGNATIEFF, HUMAN RIGHTS AS POLITICS AND IDOLATRY 78 (Amy Gutmann ed. 2001) (recognizing that the Universal Declaration of Human Rights left a "[p]ragmatic silence on ultimate questions," refusing to provide any single justification for human rights and explaining that there is a "deliberate silence at the heart of human rights culture");
13. Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EUR. J. INT'L L. 655, 678 (2008) ("A theory of human rights was a necessary starting point for the enterprise that was being embarked upon. Dignity was included in that part" of any discussion or text where the absence of a theory of human rights would have been embarrassing.").
14. There is, however, a philosophical literature about the different means and values of dignity. See, e.g., ERNST BLOCH, NATURAL LAW AND HUMAN DIGNITY (Dennis J. Schmidt trans., 1986);
15. GABRIEL MARCEL, THE EXISTENTIAL BACKGROUND OF HUMAN DIGNITY (1963);
16. B.F. SKINNER, BEYOND FREEDOM AND DIGNITY (1971). The philosophical analysis of dignity has been especially relevant in the area of bioethics. See infra notes 186-87 and accompanying text.
17. See ISAIAH BERLIN, Two Concepts of Liberty, in FOUR ESSAYS ON LIBERTY 118, 122-23, 131-32 (1969) (describing the philosophical origins and practical consequences of "negative" and "positive" freedom).
18. I provide a taxonomy of dignity based on how constitutional courts have used the term. These various legal uses reflect different philosophical understandings of the individual and his relationship to public authority and the community. Other scholars have proposed categories of dignity, which have been helpful for my understanding of this concept. See RONALD DWORKIN, Is DEMOCRACY POSSIBLE HERE? 11 (2006);
19. McCrudden, supra note 6, at 723-24;
20. Gerald L. Neuman, Human Dignity in United States Constitutional Law, in ZUR AUTONOMIE DES INDIVIDUUMSeds., 2000).
21. See infra Part II.
22. See infra Part III.
23. See Wackenheim v. France, CE Ass., Oct. 27, 1995, Rec. Lebon 372.
24. See Doreen Carvajal, Sarkozy Backs Drive to Eliminate the Burqa, N.Y. TIMES, June 23, 2009, at A4 (" 'The issue of the burqa is not a religious issue. It is a question of freedom and of women's dignity,' Mr. Sarkozy said.").
25. See infra Part IV.
26. See infra note 315 and accompanying text.
27. For example, in Lawrence v. Texas, 539 U.S. 558 (2003), the Supreme Court relies on several different concepts of dignity.
28. See id. at 567, 574-75;
29. infra notes 117-21 and accompanying text (discussing dignity as autonomy);
30. infra notes 304-07 and accompanying text (discussing dignity as recognition).
31. As a descriptive matter, American constitutional law sometimes develops this way. I leave aside the question of whether this process is normatively desirable. Compare David A. Strauss, Common Law Constitutional Interpretation, 63 U. CHI. L. REV. 877 (1996) (discussing the advantages of a common law approach to constitutional interpretation)
32. , with Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 COLUM. L. REV. 1482 (2007) (criticizing the idea that "common law constitutionalism is a repository of latent wisdom, and enables judges to cope with the limits of human reason").
33. See Lawrence B. Solum, Public Legal Reason, 92 VA. L. REV. 1449, 1465 (2006) ("[N]ormative legal theory should employ the resources of 'public legal reason,' understood as legal reasons that are accessible by all reasonable citizens.").
34. See Neomi Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 COLUM. J. EUR. L. 201, 208 (2008).
35. See Louis Henkin, Religion, Religions, and Human Rights, 26 J. RELIGIOUS ETHICS 229, 231 (1998) ("The human rights idea and ideology begin with an ur value or principle (derived perhaps from Immanuel Kant), the principle of human dignity. Human rights discourse has rooted itself entirely in human dignity and finds its complete justification in that idea.");
36. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions under Casey/Carhart, 117 YALE L.J. 1694,1798 (2008) ("Dignity is a value that bridges communities. It is a value to which opponents and proponents of the abortion right are committed, in politics and in law. It is a value that connects cases concerning abortion to other bodies of constitutional law, and connects decisions concerned with liberty to decisions concerned with equality. It is a value that guides interpretation of other national constitutions and of human rights law.");
37. Jeremy Waldron, The Dignity of Groups 2008 CILSA 66, 68 (S. Afr.) (discussing dignity as a "foundational right");
38. Siegfried Wiessner, Law as a Means to a Public Order of Human Dignity: The Jurisprudence of Michael Reisman, 34 YALE J. INT'L L. 525, 530 (2009) (describing the works of Michael Reisman as "dedicated to the goals of a world order of human dignity").
39. See, e.g., DWORKIN, supra note 9, at 11 ("I do not accept this supposed conflict between equality and liberty; I think instead that political communities must find an understanding of each of these virtues that shows them as compatible, indeed that shows each as an aspect of the other. That is my ambition for the two principles of human dignity as well." (footnote omitted));
40. STEVEN J. HEYMAN, FREE SPEECH AND HUMAN DIGNITY 207 (2008) ("[L]iberty and dignity are not opposing values but integral elements of a unified conception of the person as a free being of intrinsic worth-a conception that forms the basis of a liberal democratic society. It follows that there is no inherent conflict between free speech and human dignity.").
41. See, e.g., Paolo G. Carozza, "My Friend Is a Stranger": The Death Penalty and the Global lus Commune of Human Rights, 81 TEX. L. REV. 1031, 1082 (2003) ("[T]he tendency of courts in the death penalty cases ... to consistently place their appeal to foreign sources on the level of the shared premise of the fundamental value of human dignity is a paradigmatic example of naturalist foundations at work. Despite differences in positive law, in historical and political context, in religious and cultural heritage, there is the common recognition of the worth of the human person as a fundamental principle to which the positive law should be accountable.").
42. The dichotomy between foxes and hedgehogs is taken from a fragment of the Greek poet Archilochus: "The fox knows many things, but the hedgehog knows one big thing." ISAIAH BERLIN, The Hedgehog and the Fox: An Essay on Tolstoy's View of History, in THE PROPER STUDY OF MANKIND 436, 436 (Farrar, Straus & Giroux 1998) (1953) (internal quotation marks omitted);
43. see also RONALD DWORKIN, JUSTICE FOR HEDGEHOGS (2011) (arguing for the integration of values and against value pluralism or skepticism).
44. See BERLIN, supra note 8, at 167-69.
45. See id. at 169 ("If, as I believe, the ends of men are many, and not all of them are in principle compatible with each other, then the possibility of conflict-and of tragedy-can never wholly be eliminated from human life, either personal or social. The necessity of choosing between absolute claims is then an inescapable characteristic of the human condition.").
46. I discuss this issue at greater length in a previous article. See generally Rao, supra note 19.
47. See Hubert Cancik, Dignity of Man' and Persona' in Stoic Anthropology: Some Remarks on Cicero, De Officiis I 105-107, in THE CONCEPT OF DIGNITY IN HUMAN RIGHTS DISCOURSE 19, 19 (David Kretzmer & Eckart Klein eds., 2002).
48. See generally id. at 19-39 (tracing the concept of dignity of man from stoic anthropology through to the twentieth century);
49. McCrudden, supra note 6, at 656-63.
50. See McCrudden, supra note 6, at 664.
51. See id.
52. See U.N. Charter pmbl. ("We the Peoples of the United Nations determined ... to reaffirm faith ... in the dignity and worth of the human person ....").
53. See Universal Declaration of Human Rights, supra note 5, pmbl., arts. 1, 22, 23;
54. see also MARY ANN GLENDON, A WORLD MADE NEW 173-74 (2001) ("With its emphasis on dignity, and its insistence on the link between freedom and solidarity, the document epitomized the spirit of the prolific constitution and treaty-making activity that followed World War IL").
55. See GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949,
56. BGBl. I, art. I (Ger.), translated in Arthur Chaskalson, Human Dignity as a Constitutional Value, in THE CONCEPT OF DIGNITY IN HUMAN RIGHTS DISCOURSE, supra note 27, at 133, 136 ("The dignity of man shall be inviolable. To respect and protect it shall be the duty of all State authority.").
57. McCrudden, supra note 6, at 673.
58. JOHN P. HUMPHREY, HUMAN RIGHTS & THE UNITED NATIONS 44 (1984).
59. See GLENDON, supra note 32, at 147;
60. see also Drafting Committee of the Commission on Human Rights, 1947 Y.B. on H.R. 484, U.N. Doc. E/CN.4/21 (providing a detailed drafting history);
61. JACQUES MARITAIN, MAN AND THE STATE 77 (1988) (explaining that at a meeting of the French National Commission of UNESCO, proponents of such different ideologies could agree on a list of rights, because "we agree on these rights, providing we are not asked why. With the 'why,' the dispute begins.").
62. See McCrudden, supra note 6, at 662.
63. See MARITAIN, supra note 36, at 107.
64. GLENDON, supra note 32, at 146.
65. JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 38 (1999) (internal quotation marks omitted).
66. A similar debate occurred during the drafting of the German Basic Law. Initial drafts included reference to the dignity of man "founded upon eternal rights with which every person is endowed by nature." DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 300 (2d ed. 1997) (internal quotation marks omitted). After disputes about the natural or God-given nature of such rights, the drafters agreed on: "The dignity of man is inviolable."
67. Id. at 301 (internal quotation marks omitted). "The framers were thus successful in refusing to identify the concept of human dignity with a particular philosophical or religious school of thought."
68. Id.
69. see also Herbert Spiegelberg, Human Dignity: A Challenge to Contemporary Philosophy, in HUMAN DIGNITY 39, 62 (Rubin Gotesky & Ervin Laszlo eds., 1970) ("[H]uman dignity seems to be one of the few common values in our world of philosophical pluralism. But while our philosophies seem to agree on this conclusion, they display no agreement about its reasons.").
70. For example, the Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 3 Bevans 1179, provides that, in settling disputes, the court shall apply law from such sources as treaties and customary law.
71. Id. art. 38.1. James Griffin notes that some legal scholars add to that list "considerations of humanity (e.g. especially basic principles that appear in the preambles to conventions, prominent among which would be 'the dignity of the human person')."
72. JAMES GRIFFIN, ON HUMAN RIGHTS 205 (2008).
73. Spiegelberg, supra note 41, at 56.
74. Alan Gewirth, Human Dignity as the Basis of Rights, in THE CONSTITUTION OF RIGHTS 10, 12 (Michael J. Meyer & William A. Parent eds., 1992);
75. see also A.I. Melden, Dignity, Worth, and Rights, in THE CONSTITUTION OF RIGHTS, supra, at 29, 31 (describing Kant's understanding of dignity as "respect of our rational nature ... that necessarily all of us have");
76. Charles Taylor, The Politics of Recognition, in MULTICULTURALISM 25, 41 (Amy Gutmann ed., 1994) ("The politics of equal dignity is based on the idea that all humans are equally worthy of respect.... For Kant, what commanded respect in us was our status as rational agents, capable of directing our lives through principles.").
77. Kant explained, "[M] an regarded as a person . . . possesses, in other words, a dignity (an absolute inner worth) by which he exacts respect for himself from all other rational beings in the world." IMMANUEL KANT, GROUNDING FOR THE METAPHYSICS OF MORALS 41 (James W. Ellington trans., Hackett Publ'g Co., Inc. 3d ed. 1993) (1785).
78. Similarly, Alan Gewirth explains that this universal dignity creates an obligation of "necessary respect" that "consists in an affirmative, rationally grounded recognition of and regard for a status that all human beings have by virtue of their inherent dignity."
79. Gewirth, supra note 44, at 17. This form of "recognition" must be distinguished from the desire for recognition itself. See infra Part IV.
80. See Stephen L. Darwall, Two Kinds of Respect, 88 ETHICS 36, 38 (1977) (discussing "recognition respect" as the type of respect given to a person by virtue of being human).
81. Sophocles, Antigone (Elizabeth Wyckoff trans.), in 2 THE COMPLETE GREEK TRAGEDIES 159, 170 (David Grene & Richmond Lattimore eds., Univ. of Chi. Press 1959) (c. 441 B.C.E.).
82. See Cancik, supra note 27, at 21.
83. See Giovanni Bognetti, The Conception of Human Dignity in European and US Constitutionalism, in EUROPEAN AND US CONSTTTUTIONALISM 85, 89 (Georg Nolte ed., 2005);
84. see also Being Human 569 (Leon Kass ed., 2004) (explaining that in the Book of Genesis, God gives Noah the laws and according "to the Noahide code, every human life is equally to be requited, regardless of a person's special merit or social standing. Moreover, all human beings are equally charged with the duty of exacting justice for homicide").
85. In the House Report explaining the inclusion of "under God" in the Pledge of Allegiance in 1954, the Judiciary Committee explained: At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system whose philosophy is at direct odds with our own. Our American Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. The inclusion of God in our pledge ... would serve to deny the atheistic and materialistic concepts of communism with its attendant subservience of the individual."
86. H.R. REP. NO. 83-1693, at 1-2 (1954),
87. reprinted in 1954 U.S.C.C.A.N. 2339, 2340.
88. Modern Catholic teachings frequently reflect themes of inherent human dignity, particularly in the context of protecting fetuses from abortion or opposing the death penalty.
89. See, e.g., Pope Benedict XVI, Encyclical Letter Caritas in Veritate para. 29 (June 29, 2009), available at http://www.vatican.va/holy-father/benedict- xvi/encyclicals/documents/hf-ben-xvi-enc-20090629-caritas-in-veritate-en.html ("God is the guarantor of man's true development, inasmuch as, having created him in his image, he also establishes the transcendent dignity of men and women ....").
90. Jewish leaders have also invoked human dignity in the context of contemporary problems.
91. See, e.g., JONATHAN SACKS, THE DIGNITY OF DIFFERENCE 195 (2002) ("The ultimate value we should be concerned to maximize is human dignity ....").
92. GIOVANNI PICO DELLA MIRANDOLA, ORATION ON THE DIGNITY OF MAN 7 (A. Robert Caponigri trans., Regnery Co. 1956) (1486). Pico thought this unique capacity for self-creation was the source of man's dignity, not simply his intelligence, closeness to God, or his mastery over other creatures.
93. See id. at 8.
94. DAVID HUME, Of the Dignity or Meanness of Human Nature, in ESSAYS: MORAL, POLITICAL, AND LITERARY 80, 82 (Eugene F. Miller ed., Liberty Fund, Inc. rev. ed, 1987) (1758).
95. FRANCIS FUKUYAMA, OUR POSTHUMAN FUTURE 171 (2002).
96. A number of modern scholars trace this idea to Kant. See, e.g., EDWARD J. EBERLE, DIGNITY AND LIBERTY 10 n.1 (2002);
97. Gewirth, supra note 44, at 11;
98. Melden, supra note 44, at 29. The regular attribution of this idea to Kant, however, is not without criticism.
99. See, e.g., McCrudden, supra note 6, at 659 (noting that Kant's conception of dignity is "notoriously contested territory");
100. Jeremy Waldron, Dignity, Rank, and Rights, in 29 THE TANNER LECTURES ON HUMAN VALUES (Suzan Young ed., forthcoming 2010), available at http://ssrn.com/abstract=1461220 (discussing the complicated nature of Kantian dignity). I do not take a position on these philosophical disputes, but simply observe the common attribution to Kant of the idea of dignity as rational autonomy.
101. KANT, supra note 45, at 41. Such dignity inheres in the individual even if he cannot exercise this rationality because of some impediment.
102. See, e.g., Patrick Lee & Robert P. George, The Nature and Basis of Human Dignity, 21 RATIO JURIS 173, 191 (2008) ("[P]ossession of full moral worth follows upon being a person (a distinct substance with a rational nature) even though persons are unequal in many respects.").
103. See IMMANUEL KANT, ANTHROPOLOGY FROM A PRAGMATIC POINT OF VIEW 9 (Hans H. Rudnick ed., Victor Lyle Dowdell trans., S. 111. Univ. Press 1978) (1798) ("The fact that man is aware of an ego-concept raises him infinitely above all other creatures living on earth. Because of this, he is a person ....");
104. see also Robert E. Goodin, The Political Theories of Choice and Dignity, 18 AM. PHIL. Q. 91, 97 (1981) (explaining that the principle of dignity reflects "a fundamental axiom in our individualistic ethical system");
105. Spiegelberg, supra note 41, at 62 ("Saying T to oneself may be the expression of an act of 'choosing oneself and confronting the world into which one finds oneself born." (citation omitted)).
106. See KANT, supra note 45, at 25 ("Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only.").
107. Id. at 41. The concept is also connected to the Kantian idea that man has no "price"-his worth does not have a particular value, but rather he bears an absolute dignity without relative valuation to anyone else.
108. Id.
109. See, e.g., LEON R. KASS, LIFE, LIBERTY AND THE DEFENSE OF DIGNITY 17 (2002) ("[T] he dignity of rational choice pays no respect at all to the dignity we have through our loves and longings-central aspects of human life understood as a grown togetherness of body and soul. Not all of human dignity consists in reason or freedom.").
110. See GRIFFIN, supra note 42, at 44 (discussing a conception of agency in the context of human rights).
111. See IGNATIEFF, supra note 6, at 164-65 ("My suggestion was to link dignity to agency, on the assumption that cultures could then agree that what matters is the right of people to construe dignity as they wish, not the content they give to it. Dignity as agency is thus the most plural, the most open definition of the word I can think of.").
112. Charles Taylor explains, [T] his [liberal] view understands human dignity to consist largely in autonomy, that is, in the ability of each person to determine for himself or herself a view of the good life. Dignity is associated less with any particular understanding of the good life . . . than with the power to consider and espouse for oneself some view or other.
113. Taylor, supra note 44, at 57. Similarly, Ronald Dworkin supports a form of equality that "political decisions must be, so far as is possible, independent of any particular conception of the good life, or of what gives value to life." Ronald Dworkin, Liberalism, in PUBLIC AND PRIVATE MORALITY 113, 127 (Stuart Hampshire ed., 1978).
114. See infra Part III.
115. Compare Lee & George, supra note 55, at 174 ("Something may harm one's sense of dignity without damaging or compromising one's real dignity."), with CHARLES TAYLOR, What's Wrong with Negative Liberty, in PHILOSOPHY AND THE HUMAN SCIENCES 211, 228 (1985) ("Freedom cannot just be the absence of external obstacles, for there may also be internal ones. And nor may the internal obstacles be just confined to those that the subject identifies as such, so that he is the final arbiter; for he may be profoundly mistaken about his purposes and about what he wants to repudiate.").
116. See infra Part IV.
117. Universal Declaration of Human Rights, supra note 5, art. 1.
118. International Covenant on Civil and Political Rights pmbl., Dec. 19, 1966, 999 U.N.T.S. 171.
119. Id.
120. PATRICK CAPPS, HUMAN DIGNITY AND THE FOUNDATIONS OF INTERNATIONAL LAW 107 (2009);
121. cf. Jeremy Rabkin, What We Can Learn About Human Dignity from International Law, 27 HARV. J.L. & PUB. POL'Y 145,165 (2003) (criticizing human rights documents like the Universal Declaration because they fail to provide any "real constraint on the prerogatives of human dignity").
122. See, e.g., S. AFR. CONST., 1996, §10 ("Everyone has inherent dignity . . . .").
123. See generally Darwall, supra note 46, at 38 ("[W]hat [respect] requires as appropriate is not a matter of general agreement, for this is just the question of what our moral obligations or duties to other persons consist in.").
124. Identifying inherent human dignity may be simply the starting point for a discussion about the moral and political obligations we have to each other. For a helpful discussion of some of these themes, see GRIFFIN, supra note 42, at 192-93, describing a list of rights that emerges from his account of personhood as human agency.
125. See id. at 152 ("To adopt the personhood account of human rights is to adopt normative agency as the interpretation of the 'the dignity of the human person' when that phrase is used of the ground of human rights.").
126. See infra Part II.C.
127. BERLIN, supra note 8, at 122.
128. JOHN STUART MILL, ON LIBERTY 12 (Elizabeth Rapaport ed., Hackett Publ'g Co., Inc. 1978) (1859). The area of negative freedom may be subject to certain constraints of public authority both to promote security or other social ends, but "there ought to exist a certain minimum area of personal freedom which must on no account be violated." BERLIN, supra note 8, at 124.
129. John Stuart Mill explained: [T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right.... In the part which merely concerns himself, his independence is, of right, absolute.
130. MILL, supra note 76, at 9.
131. Michael Ignatieff connects dignity to individual human agency, which serves as a grounding and justification for human rights: "There seems no way around the individuality of dignity, however socially defined it may be." IGNATIEFF, supra note 6, at 166;
132. see also id. at 165 (identifying the broad applicability and appeal of this concept across cultures).
133. This view may be contrasted with socially defined or group-based theories of dignity. See Waldron, supra note 20, at 76 ("The dignity of a group-such as it is-may depend on how it serves the dignity of individuals.").
134. In some contexts, the Supreme Court has recognized the dignity of government entities or states, and this dignity derived from sovereignty may sometimes trump the claims of individuals.
135. See, e.g., Judith Resnik & Julie Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 STAN. L. REV. 1921, 1923 (2003) (identifying a "turn to dignity as a justification for or as an explanation of state power").
136. See Nat'l Socialist Party of Am. v. Vill. of Skokie, 432 U.S. 43, 43-44 (1977) (per curiam).
137. See infra Part III.
138. See, e.g., Alan Gewirth, The Community of Rights 110 (1996) ("One of the main ends projected by the community of rights is indeed the elimination of poverty ....");
139. GRIFFIN, supra note 42, at 47 (explaining that agency requires having both certain capacities and the means to exercise them, and therefore agency may require access to education and information about options).
140. Charles Taylor explains that "negative theories [of liberty] can rely simply on an opportunity-concept, where being free is a matter of what we can do, of what it is open to us to do, whether or not we do anything to exercise these options."
141. TAYLOR, supra note 64, at 213. He argues, however, that even negative conceptions of liberty can depend on an "exercise-concept" insofar as they focus on self-realization.
142. Id. Similarly, Philip Pettit explains that autonomy requires more than negative liberty, that it requires a broader conception of freedom as "non-domination." PHILIP PETTIT, REPUBLICANISM 51 (1997).
143. See, e.g., ISAIAH BERLIN, Introduction, in FOUR ESSAYS ON LIBERTY, supra note 8, at ix, liii ("It is important to discriminate between liberty and the conditions of its exercise. If a man is too poor or too ignorant or too feeble to make use of his legal rights, the liberty that these rights confer upon him is nothing to him, but it is not thereby annihilated.");
144. CAPPS, supra note 69, at 112-13 (explaining Alan Gewirth's distinction between freedom and well-being);
145. GRIFFIN, supra note 42, at 160 ("Liberty guarantees not the realization of one's conception of a worthwhile life, but only its pursuit").
146. See id.
147. Schmerber v. California, 384 U.S. 757, 767 (1966).
148. James Whitman explains the American privacy culture as being "oriented toward values of liberty, and especially liberty against the state."
149. James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J. 1151, 1161 (2004). By contrast, Europeans focus on privacy as a matter of respect and personal dignity.
150. See id.
151. See Faretta v. California, 422 U.S. 806, 820-21 (1975).
152. McKaskle v. Wiggins, 465 U.S. 168, 178 (1984).
153. See id.
154. 554 U.S. 164 (2008).
155. See id. at 167.
156. See id. at 167-69.
157. Id. at 176.
158. See infra notes 174-75 and accompanying text.
159. Edwards, 554 U.S. at 186-87 (Scalia, J., dissenting).
160. See, e.g., McKaskle v. Wiggins, 465 U.S. 168,176-77 (1984) (explaining that the self-representation right serves the "dignity and autonomy of the accused");
161. Faretta v. California, 422 U.S. 806, 815 (1975) ("To deny an accused a choice of procedure in circumstances in which he, though a layman, is as capable as any lawyer of making an intelligent choice, is to impair the worth of great constitutional safeguards by treating them as empty verbalisms."
162. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279-80 (1942))).
163. 130 S. Ct. 3020 (2010).
164. See id. 3091-93, 3100-01 (Stevens, J., dissenting).
165. Id. at 3101.
166. Indeed, Justice Stevens even cites to Justice Scalia's dissent in Edwards that human dignity is " 'being master of one's fate rather than a ward of the State.' "
167. Id. at 3104-05 (citing Indiana v. Edwards, 554 U.S. 164,186 (2008) (Scalia, J., dissenting)).
168. Id. at 3109.
169. Id. at 3055 (Scalia, J., concurring).
170. There is another type of dignity in these cases as well, the dignity of having one's sexual decisions recognized by the state. See infra Part IV.
171. 505 U.S. 833 (1992) (plurality opinion).
172. Id. at 851.
173. see also Lois Shepherd, Dignity and Autonomy After Washington v. Glucksberg: An Essay About Abortion, Death, and Crime, 7 CORNELL J.L. & PUB. POL'Y 431, 443 (1998) ("The overall effect of the language of the abortion cases is a strong statement of autonomy understood as selfdetermination, and an understanding of dignity as the moral status appropriate to persons who have the capacity for self-determination and who can thus form beliefs about intimate and personal matters. . . . Dignity in the abortion decisions is not considered separately from autonomy.").
174. Casey, 505 U.S. at 916 (Stevens, J., concurring in part and dissenting in part). In dissent, Justice Scalia argued that the use of "dignity" was one of a number of empty adjectives that "simply decorate a value judgment and conceal a political choice."
175. Id. at 983 (Scalia, J., concurring in the judgment in part and dissenting in part).
176. By contrast, the German Federal Constitutional Court has focused on the inherent dignity of the life of the fetus. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] May 28, 1993, 88 ENTSCHEIDUNGEN DES BUNDESVERFASSUNGSGERICHTS [BVERFGE] 203 (252) (Ger.) (Second Abortion Case) (allowing for abortion in some circumstances but reaffirming that "[d]ignity attaches to the physical existence of every human being . . . before as well as after birth. . . . Unborn life is a constitutional value that the state is obligated to protect...." (first and second alterations in translation)),
177. translated in EBERLE. supra note 54, at 173;
178. BVerfG Feb. 25, 1975, 39 BVERFGE 1 (41) (Ger.) (First Abortion Case) ("Developing life also partakes of the protection of human dignity."),
179. translated in EBERLE, supra note 54, at 165, 167 ("In both Abortion cases the Constitutional Court recognized that fetal life must be preferred over women's self-determination as a matter of constitutional priorities.");
180. see also Lee & George, supra note 55, at 191 ("[H]uman embryos and fetuses are subjects of rights, deserving full moral respect from individuals and from the political community.").
181. 539 U.S. 558 (2003).
182. See infra Part IV.B.2 (explaining how Lawrence links dignity to recognition by the state and freedom from stigma).
183. Lawrence, 539 U.S. at 567;
184. see also Randy E. Barnett, Justice Kennedy's Libertarian Revolution: Lawrence v. Texas, 2003 CATO SUP. CT. REV. 21, 35-36 (arguing that Lawrence employs a "presumption of liberty" where liberty is associated with autonomy and freedom from government interference).
185. Lawrence, 539 U.S. at 567.
186. 403 U.S. 15 (1971).
187. Id. at 24.
188. Id.
189. See also Citizens United v. FEC, 130 S. Ct 876, 972 (2010) (Stevens, J., concurring in part and dissenting in part) (explaining that the dignity identified in Cohen applies to individuals, and that accordingly, in the context of limitations on corporate speech, "no one's autonomy, dignity, or political equality has been impinged upon in the least").
190. Frederick Schauer, Speaking of Dignity, in THE CONSTITUTION OF RIGHTS, supra note 44, at 178,187 (comparing concepts of dignity as choice with dignity as inclusion in the community).
191. Frederick Schauer explains America's liberty-oriented exceptionalism in speech matters: On a large number of other issues in which the preferences of individuals may be in tension with the needs of the collective, the United States, increasingly alone, stands as a symbol for a 'Certain kind of preference for liberty even when it conflicts with values of equality and even when it conflicts with important community values.
192. Frederick Schauer, The Exceptional First Amendment, in AMERICAN EXCEPTIONALISM AND HUMAN RIGHTS 29, 45 (Michael Ignatieff ed., 2005).
193. See Robert C. Post, Community and the First Amendment, 29 ARIZ. ST. L.J. 473, 481 (1997) ("[A]utonomy would be fatally compromised if the state were to impose civility rules upon public discourse, for citizens would then be cast as already constrained and captured by one form of community rather than another.").
194. See infra notes 272-282 and accompanying text.
195. See infra notes 328-340 and accompanying text.
196. See Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107 (1976).
197. Compare Michael C. Dorf, A Partial Defense of an Anti-Discrimination Principle, ISSUES IN LEGAL SCHOLARSHIP, 2002, art. 2, at 3, http://www.bepress. com/ils/iss2/art2 ("[I]n the years since Fiss wrote Groups and the Equal Protection Clause, the Court has, at every turn, chosen anti-discrimination over group-disadvantage."),
198. with Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination, ISSUES IN LEGAL SCHOLARSHIP, 2003, art. 11, at 2, http://www.bepress.com/ils/iss2/art11 (challenging the common assumption that anticlassification triumphed over antisubordination and arguing that "American civil rights jurisprudence vindicates both anticlassification and antisburodination commitments").
199. Peter J. Rubin, Reconnecting Doctrine and Purpose: A Comprehensive Approach to Strict Scrutiny After Adarand and Shaw, 149 U. PA. L. REV. 1, 19 (2000).
200. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 270 (2003) ("'[R] acial classifications are simply too pernicious to permit any but the most exact connection between justification and classification' . . . ."
201. (quoting Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J., dissenting)));
202. see also Grutter v. Bollinger, 539 U.S. 306, 326 (2003) ("We apply strict scrutiny to all racial classifications to '"smoke out" illegitimate uses of race by assuring that [government] is pursuing a goal important enough to warrant use of a highly suspect tool.'" (alteration in original)
203. (quoting Richmond v. J.A Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion)));
204. Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995) ("[A]ll governmental action based on race . . . should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed. These ideas have long been central to this Court's understanding of equal protection, and holding 'benign' state and federal racial classifications to different standards does not square with them." (citation omitted)).
205. See, e.g., Metro Broad., Inc. v. FCC, 497 U.S. 547, 609-10 (1990) (O'Connor, J., dissenting) ("The Court's emphasis on 'benign racial classifications' suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility. . . . [B]enign' carries with it no independent meaning, but reflects only acceptance of the current generation's conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.").
206. Miller v. Johnson, 515 U.S. 900, 911 (1995) (quoting Metro Broad., Inc., 497 U.S. at 602 (O'Connor, J., dissenting)) (internal quotation marks omitted).
207. Adarand, 515 U.S. at 227.
208. Parents Involved in Cmty. Schs v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 797 (2007) (Kennedy, J., concurring in part and concurring in the judgment).
209. 528 U.S. 495 (2000).
210. See id. at 517.
211. Id.
212. See Califano v. Goldfarb, 430 U.S. 199, 205-06, 210 (1977).
213. 511 U.S. 127 (1994).
214. Id. at 153 (Kennedy, J., concurring in the judgment);
215. see also Nguyen v. INS, 533 U.S. 53, 83 (2001) (O'Connor, J., dissenting) (noting the potential for injury to dignity "that inheres in or accompanies so many sex-based classifications").
216. 518 U.S. 515 (1996).
217. See id. at 545-46;
218. see also Ruth Bader Ginsburg, Remarks at City University of New York School of Law (Mar. 11, 2004), in 7 N.Y. CITY L. REV. 221, 238-39 (2004) ("But there is, I think, an underlying principle in all of the Court's equal protection jurisprudence. ... It is the idea of essential human dignity, that we are all people entitled to respect from our Government as persons of full human stature, and must not be treated as lesser creatures. The idea of respect for the dignity of each human is, I think, essentially what the Equal Protection Clause is about.").
219. See Neomi Rao, Gender, Race, and Individual Dignity: Evaluating Justice Ginsburg's Equality Jurisprudence, 70 OHIO ST. L.J. 1053, 1062 (2009) (discussing the individual, opportunity-focused view of equality in Justice Ginsburg's opinion for the Court in the VMI case).
220. See generally Rao, supra note 19 (analyzing and contrasting European and American conceptions of dignity).
221. Kokkinakis v. Greece, 260 Eur. Ct. H.R. (ser. A) at 1 (1993).
222. Id. at 37 (Martens, J., partly dissenting).
223. CATHERINE DUPRÉ, IMPORTING THE LAW IN POST-COMMUNIST TRANSITIONS 125 (2003).
224. See generally DAVID P. CURRIE, THE CONSTITUTION OF THE FEDERAL REPUBLIC OF GERMANY 10-17 (1994) (discussing the German conception of fundamental rights based on human dignity);
225. EBERLE, supra note 54, at 256-57 (contrasting German and American constitutional values of freedom and how they relate to community).
226. DUPRE, supra note 143, at 147 ("The insistence on the individual and on the inherent character of constitutional rights hammers home the fact that the Hungarian Court was deliberately turning away from the communist concept of rights which was not centred on the individual, but on society and on the achievement of social goals.").
227. Gosselin v. Quebec, 2002 SCC 84, para. 65 (Can.).
228. The dissenting justices, however, took a very different view of dignity and found that the age distinction constituted discrimination and consequently violated human dignity.
229. See, e.g., Gosselin, 2002 SCC 84, para. 123 (L'Heureux-Dubé, J., dissenting).
230. See Rao, supra note 19, at 211.
231. Guy E. Carmi, Dignity-The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as a Free Speech Justification, 9 U. PA. J. CONST. L. 957, 1000 (2007) (footnotes omitted). Robert Post explains this common tension between dignity and autonomy: Autonomy refers to the ability of persons to create their own identity and in this way to define themselves. Dignity, by contrast, refers to "our sense of ourselves as commanding (attitudinal) respect." Unlike autonomy, dignity depends upon intersubjective norms that define the forms of conduct that constitute respect between persons. That is why modern legal systems so often set autonomy and dignity in opposition to each other ....
232. Robert C. Post, Three Concepts of Privacy, 89 GEO. L.J. 2087, 2092 (2001) (footnote omitted).
233. See EBERLE, supra note 54, at 60-61.
234. See generally Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363, 1393-94 (1984) (arguing that our constitutional culture of negative rights "obstructs the development of a more complete set of positive rights").
235. See infra Part IV.
236. Carmi, supra note 149, at 998 ("Using human dignity as a free speech justification is equivalent to introducing new vocabulary into free speech theory. Such introduction may even affect some of our most basic assumptions regarding free speech.");
237. see also Schauer, supra note 119, at 42 (noting that the American value of freedom of expression can come into conflict with dignity).
238. Ronald Dworkin explains that in this understanding the government does not remain neutral on questions about the good life. Rather, "[g]ood government consists in fostering or at least recognizing good lives; treatment as an equal consists in treating each person as if he were desirous of leading the life that is in fact good."
239. Roger Brownsword, Bioethics Today, Bioethics Tomorrow: Stem Cell Research and the "Dignitarian Alliance, " 17 NOTRE DAME J.L. ETHICS & PUB. POL'Y 15, 28-29 (2003).
240. Despite modern references to universal human dignity as discussed in Part I, a common understanding of dignity retains an aspect of rank, social worth, or honor. See, e.g., 4 OXFORD ENGLISH DICTIONARY 656-57 (2d ed. 1989) (defining "dignity" as "1. The quality of being worthy or honourable; worthiness, worth, nobleness, excellence. ... 2. Honourable or high estate, position, or estimation; honour; degree of estimation, rank.");
241. see also Waldron, supra note 54 ("If our modern conception of human dignity retains any scintilla of its ancient and historical connection with rank[,] ... we should look first at the bodies of law that relate status to rank (and to right and privilege) ....").
242. David Feldman, Human Dignity as a Legal Value (pt. 1), 16 PUB. L. 682, 685 (1999) ("If the state takes a particular view on what is required for people to live dignified lives, it may introduce regulations to restrict the freedom which people have to make choices which, in the state's view, interfere with the dignity of the individual, a social group or the human race as a whole.").
243. See Roger Brownsword, Freedom of Contract, Human Rights and Human Dignity, in HUMAN RIGHTS IN PRIVATE LAW 181,193-94 (Daniel Friedmann & Daphne Barak-Erez eds., 2001) (explaining two concepts of human dignity: human dignity as empowerment that supports individual autonomy and human dignity as constraint on individual autonomy).
244. Such conceptions of self-realization are often traced to Hegel. See, e.g., BERLIN, supra note 8, at 142 (describing Hegel as a proponent of "enlightened rationalism" who advanced the idea of "rational necessity" by which once you understand the necessity of something "you cannot, while remaining rational, want to be otherwise"). Untangling the complexity of Hegelian thought is beyond the scope of this Article. I gesture to Hegel here because Berlin and others consider Hegel to be an influential modern proponent of theories of the divided self.
245. Hegel argued the self must be guided by a universal rationality, a rationality that is fulfilled for Hegel through the state. In the state, the individual realizes a form of universal rationality. See G.W.F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT §153 (Allen W. Wood ed., H.B. Nisbet trans., 1991) ("The individual attains his right only by becoming the citizen of a good state.");
246. see also id. §75 (rejecting a contractarian theory of the state and explaining that "[i]t is the rational destiny [Bestimmung] of human beings to live within a state, and even if no state is yet present, reason requires that one be established" (translation in original));
247. Pierre Hasner, Georg W. F. Hegel (Allan Bloom trans.), in HISTORY OF POLITICAL PHILOSOPHY (Leo Strauss & Joseph Cropsey eds., 1987) ("The state is, in a sense, nothing less than the crown and the foundation of this labor of morals that raises the particular to the universal, teaching the individual to fulfill himself to a whole.").
248. BERLIN, supra note 8, at 132.
249. Id. at 134.
250. Id. at 132-33;
251. see also Dworkin, supra note 62, at 127 (distinguishing from the liberal theory of equality a theory in which equality requires an idea of the good).
252. As Berlin explains: It is one thing to say that I may be coerced for my own good which I am too blind to see: this may, on occasion, be for my benefit; indeed it may enlarge the scope of my liberty. It is another to say that if it is my good, then I am not being coerced, for I have willed it, whether I know this or not, and am free (or 'truly' free) even while my poor earthly body and foolish mind bitterly reject it, and struggle against those who seek however benevolently to impose it, with the greatest desperation.
253. BERLIN, supra note 8, at 134.
254. Wackenheim v. France, Conseil d'Etat [CE Ass.] [highest administrative court], Oct. 27, 1995, Rec. Lebon 372 (Fr.). Recognizing disagreement over whether the term "dwarf" is derogatory, I use this term because it is the one chosen by the courts and commentators evaluating the case.
255. France further argued that that the International Covenant on Civil and Political Rights does not cover "an individual's right to respect as a human being" and even if it did the ban on dwarf throwing was a classic instance of "reconciling the exercise of economic freedoms with the desire to uphold public order, one element of which is public morals." Wackenheim v. France, CCPR/c/75/D/854/1999 (July 26, 2002) ¶ 4.5. That France can argue against the individual right to respect in favor of public order provides a perfect example of freedom as coercion. On appeal to the United Nations Human Rights Committee, Mr. Wackenheim argued that the Council had added a component of public morals and human dignity to the concept of public order, and that the ban had deprived him of his economic liberty and right to earn a living. The Human Rights Committee held that France had demonstrated the ban on dwarf throwing was necessary to protect public order, "which brings into play considerations of human dignity." Id. ¶ 7.4.
256. See, e.g., Feldman, supra note 157, at 700 (discussing the ordre publique rationale and explaining that "[a] government, court or tribunal concerned with dignity need not defer to the subjective judgment of an individual as to what is good for him or her. Instead, it is open to public authorities to make their own assessments of the demands of dignity and the kinds of existence or activity which are conducive to it. If dignity is a fundamental constitutional value, it will then be constitutionally permissible to interfere with people's freedoms in order to preserve what the decision-maker regards as their dignity.").
257. Peter Berkowitz, Op-Ed., Can Sarkozy Justify Banning the Veil?, WALL ST. J., Apr. 5, 2010, at A19 (statement of President Sarkozy).
258. See Martha Nussbaum, Veiled Threats?, N.Y. TIMES OPINIONATOR (July 11, 2010; 5:35 PM), http://opinionator.blogs.nytimes.com/2010/07/11/veiled-threats (discussing and rejecting many of the common arguments made in favor of banning the burqa).
259. Martha Nussbaum, Beyond the Veil: A Response, N.Y. TIMES OPINIONATOR (July 15, 2010; 9:56 PM), http://opinionator.blogs.nytimes.com/2010/07/15/ beyond-the-veil-a-response.
260. In re The Constitutional Questions Act, [1990] 1 S.C.R. 1123, 1194 (Can.).
261. R. v. Butler, [1992] 1 S.C.R. 452, 479 (Can.);
262. see also Brownsword, supra note 155, at 30 (discussing Canadian cases about pornography and prostitution).
263. The Canadian Supreme Court used a similar rationale for upholding criminal prohibitions on marijuana in part because such prohibition protected "[vulnerable groups ... including adolescents with a history of poor school performance, pregnant women and persons with pre-existing diseases." R. v. Malmo-Levine, [2003] 3 S.C.R. 571, para. 135 (Can.).
264. Indiana v. Edwards, 554 U.S. 164, 176 (2008;
265. (quoting McKaskle v. Wiggins, 465 U.S. 168, 176-77 (1984)).
266. The majority and dissent disagreed, in part, about how to characterize Edwards's mental capability at the time of trial. In dissent, Justice Scalia noted that Edwards willingly and knowingly made the choice to represent himself and admonished that the dignity at stake was "the dignity of individual choice."
267. See id. at 2393 (Scalia, J., dissenting);
268. see also supra text accompanying note 96.
269. 550 U.S. 124 (2007).
270. Id at 157;
271. see Siegel, supra note 20, at 1699 ("Gender paternalist reasoning in Carhart is no accident. The passage reflects the spread of abortion restrictions that are women-protective as well as fetal-protective, in form and justification.").
272. Carhart, 550 U.S. at 157 (quoting Partial-Birth Abortion Act of 2003, Pub. L. No. 108-105, § 2(14) (N), 117 Stat. 1201, 1206 (codified at 18 U.S.C. §1531 (2006))).
273. Siegel, supra note 20, at 1768.
274. See supra notes 105-108 and accompanying text.
275. Reva. B. Siegel, The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument, 57 DUKE L.J. 1641, 1686 (2008).
276. Id. at 1687.
277. Id.
278. Id. at 1689.
279. In this context, however, the autonomy/paternalism divide is complicated by the competing dignities implicated by abortion, which terminates the fetal life. Siegel does not address the idea that a fetus may also be considered to have inherent human dignity. See supra note 109 (discussing the German abortion decisions that hold the state is obliged to protect the dignity of the fetus).
280. See, e.g., RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 30-31 (Vintage Books 1994) (1993) (discussing common arguments for and against the morality of abortion);
281. FUKUYAMA, supra note 53, at 149 (discussing the related issues of human dignity and the desire for recognition and the implications they have on a democracy);
282. KASS, supra note 59 (discussing dignity at all stages of life and death);
283. MICHAEL J. SANDEL, THE CASE AGAINST PERFECTION: ETHICS IN THE AGE OF GENETIC ENGINEERING 102-04 (2007) (discussing President Bush's stance against stem-cell research).
284. See, e.g., DWORKIN, supra note 186, at 238-39 (explaining that although we may care intensely about what others do with regard to abortion and euthanasia "[a] true appreciation of dignity argues decisively . .. for individual freedom, not coercion, for a régime of law and attitude that encourages each of us to make mortal decisions for himself");
285. cf. Brownsword, supra note 155, at 27-28 (explaining that human dignity as constraint condemns euthanasia and assisted suicide).
286. See KASS, supra note 59, at 249 ("Death with dignity requires absolutely that the survivors treat the human being at all times as if full godlikeness remains, up to the very end.").
287. Shepherd, supra note 107, at 448.
288. Id.
289. see id. at 449 ("To the extent that dignity embodies a notion of what is worthy, noble, and honorable, almost no one would choose a life, or death, describable by terms meaning the opposite of dignity.").
290. Id. at 450 (citing People v. Kevorkian, No. 93-11482, 1993 WL 603212 (Mich. Cir. Ct. Dec. 13, 1993),
291. rev'd sub nom. Hobbins v. Att'y Gen., 518 N.W.2d 487 (Mich. Ct. App. 1994), aff'd in part, rev'd in part sub nom.
292. People v. Kevorkian, 527 N.W.2d 714 (Mich. 1994)).
293. KASS, supra note 59, at 253.
294. See NAT'L COMM'N FOR THE PROT, OF HUMAN SUBJECTS OF BIOMEDICAL & BEHAVIORAL RESEARCH, THE BELMONT REPORT: ETHICAL PRINCIPLES AND GUIDELINES FOR THE PROTECTION OF HUMAN SUBJECTS OF RESEARCH 2 (1979), available at http://ohsr.od.nih.gov/guidelines/belmont.html.
295. Id. at 4.
296. Id.
297. Id.
298. See, e.g., Larry R. Churchill, Toward a More Robust Autonomy: Revising the Belmont Report, in BELMONT REVISITED 111, 111-12 (James F. Childress et al. eds., 2005) (explaining the flawed notion of autonomy in the Belmont Report);
299. Richard A. Epstein, The Erosion of Individual Autonomy in Medical Decisionmaking: Of the FEDA and IRBs, 96 GEO. L.J. 559, 580-81 (2008) (explaining that the Report begins by highlighting individual autonomy only to allow "for the creation of centralized planning boards with complete authority").
300. 497 U.S. 261 (1990).
301. Id. at 280.
302. Id. at 289 (O'Connor, J., concurring).
303. Id. at 302 (Brennan, J., dissenting).
304. Id. at 310-11;
305. see also Rodriguez v. British Columbia, [1993] 3 S.C.R. 519 (Can.) (Cory, J., dissenting) ("[T] he right to die with dignity should be as well protected as is any other aspect of the right to life. State prohibitions that would force a dreadful, painful death on a rational but incapacitated terminally ill patient are an affront to human dignity.").
306. See also Washington v. Glucksberg, 521 U.S. 702, 727-28 (1997) (rejecting calls to recognize a constitutional liberty interest in assisted suicide and glossing over the arguments about dignity and autonomy). In Glucksberg, the Supreme Court implicitly rejected the arguments advanced by the "Philosopher's Brief," which argued for a recognition of assisted suicide in part based upon dignity and autonomy.
307. See Brief for Ronald Dworkin et al. as Amici Curiae in Support of Respondents, Washington v. Glucksberg, 521 U.S. 702 (1997) (Nos. 95-1858, 96-110);
308. Neomi Rao, Comment, A Backdoor to Policy Making: The Use of Philosophers by the Supreme Court, 65 U. CHI. L. REV. 1371, 1371 (1998) (noting the Supreme Court's failure to engage the "Philosopher's Brier);
309. see also Rodriguez, 3 S.C.R. 519 (upholding a law that protected disabled persons from assisted suicide and treating dignity as a substantive social ideal that governs quality of life considerations).
310. See, e.g., INDIA CONST, pmbl.;
311. S. AFR. CONST., 1996.
312. GRIFFIN, supra note 42, at 180-81.
313. Id. at 181.
314. Ronald Dworkin draws a similar distinction between dignity as the intrinsic value of human life and the concept of "beneficence" and explains that these are different. "We can acknowledge that it is important how someone's life goes without accepting any general positive obligation to make it go better. The distinction is necessary to explain the pervasiveness of our concern with dignity-why we insist, as I said, on the dignity even of prisoners." DWORKIN, supra note 186, at 236.
315. But see KASS, supra note 59, at 17-19 (arguing that part of our inherent human dignity comes from our lower needs as well as our higher ones "the worthiness of embodied human life, and therewith of our natural desires and passions, our natural origins and attachments, our sentiments and aversions, our loves and longings").
316. See BERLIN, supra note 84, at liii ("[L]iberty is one thing, and the conditions for it are another."). Michael Walzer, a proponent of the social-welfare state, similarly recognizes that while such goods are important, one cannot fix the abstract requirements of such goods. Rather they must be "decided politically: that is what democratic political arrangements are for. Any philosophical effort to stipulate in detail the rights or the entitlements of individuals would radically constrain the scope of democratic decision making."
317. MICHAEL WALZER, SPHERES OF JUSTICE 67 n.*(1983). He recognizes that any specific welfare arrangements "are not arguments about individual rights; they are arguments about the character of a particular political community."
318. Id. at 78.
319. 397 U.S. 254 (1970).
320. Id. at 262.
321. Id. at 262 n.8.
322. Id.
323. Id. at 264-65;
324. see also Cass R. Sunstein & Randy E. Barnett, Constitutive Commitments and Roosevelt's Second Bill of Rights: A Dialogue, 53 DRAKE L. REV. 205, 214 (2005) ("By the late 1960s, respected constitutional thinkers could conclude that the Court was on the verge of recognizing a right to be free from desperate conditions ....").
325. See Dandridge v. Williams, 397 U.S. 471, 487 (1970).
326. See Goldberg, 397 U.S. at 264-65.
327. 457 U.S. 202 (1982).
328. Id. at 230.
329. See id. at 229-30.
330. See, e.g., Harris v. McRae, 448 U.S. 297, 317-18 (1980) (upholding federal restrictions on Medicaid funding for abortions, because although "the Due Process Clause affords protection against unwarranted government interference with freedom of choice in the context of certain personal decisions, it does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom. To hold otherwise would mark a drastic change in our understanding of the Constitution.");
331. see also Mark Tushnet, The United States: Eclecticism in the Service of Pragmatism, in INTERPRETING CONSTITUTIONS 7, 52 (Jeffrey Goldsworthy ed., 2006) (explaining that "a pervasive ideology of individualism" limits certain constitutional interpretations, as illustrated by "the hostility to even the recognition of social and economic rights by most US constitutional theorists").
332. See Frank B. Cross, The Error of Positive Rights, 48 UCLA L. REV. 857, 859 (2001);
333. David P. Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864, 872 (1986);
334. Goodwin Liu, Rethinking Constitutional Welfare Rights, 61 STAN. L. REV. 203, 205-06 (2008).
335. S. AFR. CONST., 1996, §26, cls. 1-2.
336. 2001 (1) SA 46 (CC) (S. Afr.).
337. Id. at para. 10.
338. Id. at para. 23;
339. see also id. at para. 44 ("A society must seek to ensure that the basic necessities of life are provided to all if it is to be a society based on human dignity, freedom and equality.").
340. Id. at para. 99.
341. A MAGYAR KÖZTÁRSASÁG ALKOTMÁNYA [CONSTITUTION OF THE REPUBUC OF HUNGARY] art. 70/E, cl. 1.
342. Alkotmánybíróság (AB) [Constitutional Court] 32/1998 (Hung.),
343. quoted in McCrudden, supra note 6, at 693 & n.270.
344. See AB MK.2000/109 (Hung.),
345. cited in McCrudden, supra note 6, at 693 n.271.
346. See id.
347. INDIA CONST, pmbl. ("We, The People of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens: Justice, social, economic, and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the nation ....").
348. Mullin v. Adm'r, Union Territory of Delhi, (1981) 2 S.C.R. 516, 518 (India).
349. See id.
350. See, e.g., Art. 3 Costituzione [Cost.] (It.) ("It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all markers in the political, economic and social organization of the country.");
351. REGERINGSFORMEN [RF] [CONSTITUTION] 1:2 (Swed.) ("Public power shall be exercised with respect for the equal worth of all and for the freedom and dignity of the individual. The personal, economic and cultural welfare of the individual shall be fundamental aims of public activity.").
352. Whether such positive rights can be adequately enforced by constitutional courts is a question of significant importance that is outside the scope of this Article. For useful discussions of this topic, see Mark Tushnet, Social Welfare Rights and the Forms of Judicial Review, 82 TEX. L. REV. 1895 (2004).
353. See also supra note 220 (discussing the difficulty of enforcing positive welfare rights).
354. United Nations Millenium Declaration, G.A. Res. 55/2,¶ 6, U.N. Doc. A/RES/ 55/2 (Sept. 18, 2000).
355. In the context of refugees the UN Declaration explicitly connects safety and dignity: "We resolve therefore ... to help all refugees and displaced persons to return voluntarily to their homes, in safety and dignity and to be smoothly reintegrated into their societies."
356. Id. ¶26.
357. This relates to a larger question outside the scope of this Article about international duties to protect. See generally Carsten Stahn, Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?, 101 AM. J. INT'L L. 99 (2007) (discussing the concept of responsibility to protect in relation to existing principles of international law).
358. See, e.g., CrimA 4596/98 Plonit v. A.G. 54(1) PD 145 [2000] (lsr.) (prohibiting all forms of corporal punishment against children),
359. cited in Marvin M. Bernstein, The Decision of the Supreme Court of Canada Upholding the Constitutionality of Section 43 of the Criminal Code of Canada: What This Decision Means to the Child Welfare Sector, 44 FAM. CT. REV. 104, 111 (2006);
360. Republic of Italy v. Cambria, translated decision of the Supreme Court of Cassation, March 18, 1996 (declaring violence for educational purposes of children to be unlawful in part because of "the overriding importance, which the [Italian] legal system attributes to protecting the dignity of the individual. This includes 'minors' who now hold rights and are no longer simply objects to be protected by their parents or, worse still, objects at the disposal of their parents"),
361. cited in Bernstein, supra, at 110;
362. World Org. Against Torture v. Belgium, Compl. No. 21/ 2003, 42 Eur. H.R. Rep. SE20 at 252 (Eur. Comm'n on S.R. 2006) (challenging Belgian law because it does not explicitly prohibit corporal punishment against children).
363. See, e.g., Rebecca Adams, Violence Against Women and International Law: The Fundamental Right to State Protection from Domestic Violence, 20 N.Y. INT'L L. REV. 57, 128-29 (2007) ("Recent international law recognizes the endemic proportions of domestic violence and as such specifically names violence against women as a human rights violation.").
364. See Vishaka v. Rajasthan, (1997) 3 S.C.R. 404, 405 (India).
365. Id. at 405.
366. DeShaney v. Winnebago Cnty. Dep't. of Soc. Servs., 489 U.S. 189, 195 (1989).
367. See, e.g., GRIFFIN, supra note 42, at 256 ("The third generation, the rights of our time, of the last twenty-five years or so, consists of 'solidarity' rights, including, most prominently, group rights.").
368. Taylor, supra note 44, at 37.
369. Id. at 38. In a similar vein, Jürgen Habermas explains that there are three types of recognition: "Each and every person should receive a three-fold recognition: they should receive equal protection and equal respect in their integrity as irreplaceable individuals, as members of ethnic or cultural groups, and as citizens, that is, as members of the political community."
370. JÜRGEN HABERMAS, BETWEEN FACTS AND NORMS 496 (William Rehg trans., 1996). The recognition of equal protection and respect as individuals relates to Taylor's recognition of universalism and the recognition as members of ethnic or cultural groups maps onto Taylor's recognition of differences.
371. See supra Part II.A.
372. What Taylor calls the "politics of universalism . . . emphasiz[es] the equal dignity of all citizens, and the content of this politics has been the equalization of rights and entitlements."
373. Taylor, supra note 44, at 37;
374. see also Arvind Sharma, The Religious Perspective: Dignity as a Foundation for Human Rights Discourse, in HUMAN RIGHTS AND RESPONSIBILITIES IN THE WORLD RELIGIONS 67, 71 (Nancy M. Martin et al. eds., 2003) ("Thus human dignity has to do with dignity which inheres in oneself as a human being and possesses a dimension as interiority as it relates to one's self-perception. The external recognition of this dignity by another constitutes the basis of human rights.").
375. See IGNATIEFF, supra note 6, at 165.
376. See R. v. Keegstra, [1990] 3 S.C.R. 697 (Can.).
377. Taylor, supra note 44, at 38. By contrast, "[w]ith the politics of equal dignity, what is established is meant to be universally the same, an identical basket of rights and immunities."
378. Id.
379. See Whitman, supra note 87, at 1183-84.
380. See GRUNDGESETZ art. 2, para. 1 (Ger.) ("Everyone shall have the right to the free development of his personality, in so far as he does not infringe the rights of others.");
381. see also CONSTITUCIÓN POLÍTICA DE COLOMBIA [C.P.] art. 14-16 (explaining that every individual has the right to be legally recognized as a person to receive personal and family privacy, and is entitled to free personal development);
382. CONST, OF THE PORTUGUESE REPUBLIC art. 26 para. 1, para. 3 ("Everyone shall possess the right to a personal identity .... The law shall guarantee the personal dignity and genetic identity of the human person ....").
383. These personality rights refer to inner well-being and development of the individual as a unique person. For example, the German Constitutional Court explained that personality rights relate to undefined freedoms and that "[t]heir function is, in the sense of the ultimate constitutional value, human dignity, to preserve the narrow personal life sphere and to maintain its conditions, that are not encompassed by traditional concrete guarantees." Eppler, 54 BVerfGE 148, 153 (1980) (Ger.);
384. see also EBERLE, supra note 54, at 61 (explaining that Article 2 of the German Basic Law actually refers to "unfolding" rather than "development" as it is usually translated and this relates to the German conception of personality rights as related to well-being, rather than to autonomy or liberty as in America).
385. The concept of "personality rights" is much more familiar in European law and rarely mentioned in American cases, although some similar concepts arise in substantive due process jurisprudence.
386. See Edward J. Eberle, Human Dignity, Privacy, and Personality in German and American Constitutional Law, 1997 UTAH L. REV. 963, 978-79.
387. See, e.g., AXEL HONNETH, THE STRUGGLE FOR RECOGNITION 107-08 (Joel Anderson trans., 1995);
388. PAUL RICOEUR, THE COURSE OF RECOGNITION 17-19 (David Pellauer trans., 2005);
389. ROBERT R. WILLIAMS, HEGEL'S ETHICS OF RECOGNITION 10 (1997).
390. See Charles Taylor, Hegel: History and Politics, in LIBERALISM AND ITS CRITICS 180 (Michael Sandel ed., 1984) ("The idea that our highest and most complete moral existence is one we can only attain to as members of a community obviously takes us beyond the contract theory of modern natural law, or the utilitarian conception of society as an instrument of the general happiness. For these societies are not the focus of independent obligations, let alone the highest claims which can be made on us .... The doctrine which puts Sittlichkeit at the apex of moral life requires a notion of society as a larger community life, to recall the expression used above, in which man participates as a member.").
391. GEORGE H. MEAD, MIND, SELF, AND SOCIETY 162 (Charles W. Morris ed., 1962).
392. BERLIN, supra note 8, at 156 n.1. Berlin further noted: I cannot ignore the attitude of others with Byronic disdain ... for I am in my own eyes as others see me. I identify myself with the point of view of my milieu: I feel myself to be somebody or nobody in terms of my position and function in the social whole; this is the most 'heteronomous' condition imaginable.
393. Id. Berlin explains that this ideal of attitudinal respect is the opposite of Kantian freedom in which the free man does not need public recognition for his inner freedom.
394. Id.
395. The idea of group membership and group rights is reflected in a number of modern constitutions that explicitly recognize the demands of particular minority ethnic, religious, or linguistic groups. See, e.g., Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
396. being Schedule B to the Canada Act, 1982, c. 16-23 (U.K.) (providing for English and French as official languages and for explicit minority language educational rights).
397. Often, demands for dignity are couched in terms of respect for groups, such as hate speech legislation, which prohibits hateful speech based on a person's membership in a particular type of group.
398. See infra Part IV.B.1. Whether such group dignities have meaning apart from the dignity of the individual is a separate question. Jeremy Waldron argues that group dignity may have meaning only in the context of individual dignity: "It is not clear, in other words, that we are getting to any idea of a foundational or inherent dignity of groups when we talk of the dignity of the nation-state or the dignity of this or that institution or community."
399. Waldron, supra note 20, at 75;
400. see also GRIFFIN, supra note 42, at 256-57 (analyzing the justification for such rights and questioning whether we would be better off without the third generation of "solidarity" rights).
401. MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE 150 (2d ed. 1998).
402. Joseph Raz, Free Expression and Personal Identification, 11 OXFORD J. LEGAL STUD. 303, 313 (1991).
403. Taylor, supra note 44, at 64 ("We could say that . . . misrecognition has now graduated to the rank of a harm that can be hardheadedly enumerated along with [inequality, exploitation, and injustice].");
404. see also RICOEUR, supra note 253, at 19 ("[T] he demand for recognition expresses an expectation that can be satisfied only by mutual recognition, where this mutual recognition either remains an unfulfilled dream or requires procedures and institutions that elevate recognition to the political plane.").
405. See Goodin, supra note 56, at 100 ("Respecting people's dignity does seem to be a more fundamental premise of our individualistic ethic than that of respecting choices .... And respecting people's dignity has strikingly different practical implications than respecting their choices simpliciter").
406. See BERLIN, supra note 8, at 158 ("[The desire for recognition] is more closely related to solidarity, fraternity, mutual understanding, need for association on equal terms, all of which are sometimes-but misleadingly-called social freedom.") Although recognition by others may be a deep human need, nonetheless, achieving recognition should not be confused with negative liberty or individual autonomy.
407. See id. at 159.
408. Charles Taylor identifies this as a desire for "attitudinal" respect, not respect for individual rights, but "rather of thinking well of someone." CHARLES TAYLOR, SOURCES OF THE SELF: THE MAKING OF MODERN IDENTITY 15 (1989) ("The very way we walk, move, gesture, speak is shaped from the earliest moments by our awareness that we appear before others, that we stand in public space, and that this space is potentially one of respect or contempt, or pride or shame."). Similarly, Ronald Dworkin explains that governments may differ in how they respect human dignity, but "[t]he fundamental human right, we should say, is the right to be treated with a certain attitude, an attitude that expresses the understanding that each person is a human being whose dignity matters."
409. DWORKIN, supra note 9, at 35.
410. For example, Robert Post explains, "[i]f others act in ways that persistently violate the norms that define my dignity, I find myself threatened, demeaned, perhaps even deranged."
411. Post, supra note 120, at 476.
412. See Spiegelberg, supra note 41, at 56 (explaining this is the "dignity of being worthy of something else, to which what is worthy has something like a claim, e.g., to attention, to approval or to support. Such dignity is in this sense outward bound, extrinsic, demands a complement.... [This dignity] calls for action, the fulfillment of a claim.").
413. Whitman, supra note 87, at 1164.
414. See id. at 1164-65 (explaining some of the areas in which norms of respect are enforced in France and Germany including protections for personal honor and prohibitions against disrespectful treatment of workers, women, and prison inmates).
415. Membership within the community may require protection for one's dignity and mutual recognition by community members. See, e.g., HEYMAN, supra note 21, at 62 (explaining that being a free person within the social realm, "[f]irst, and most fundamentally . . . means to be a citizen or member of the community and to be treated as such by others and by the community as a whole. In addition to the tangible rights and benefits that it confers, citizenship has an important dignitary dimension."). "[T] he requirement that individuals recognize one another as human beings and community members is not simply a contingent or conventional one but is inherent in the very idea of a community."
416. Id. at 176.
417. See ANDREW CLAPHAM, HUMAN RIGHTS OBUGATIONS OF NON-STATE ACTORS 546 (2006) (refuting the idea that nonstate actors have only negative obligations and arguing that "[n]on-state actors must also have obligations to protect human rights and to allow for the full-realization of the human potential");
418. Gewirth, supra note 82, at 32 (explaining that "positive rights serve to relate persons to one another through mutual awareness of important needs and, as a consequence, affirmative ties of equality and mutual aid").
419. See GRUNDGESETZ art. 1-2 (Ger.).
420. Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] 1969, 27 BVerfGE I (Ger.),
421. reprinted in KOMMERS, supra note 41, at 299.
422. HEYMAN, supra note 21, at 171.
423. Jeremy Waldron, Free Speech & the Menace of Hysteria, 55 N.Y. REV. BOOKS, May 29, 2008, available at http://www.nybooks.com/articles/21452 ("The issue is publication and the harm done to individuals and groups through the disfiguring of our social environment by visible, public, and semi-permanent announcements to the effect that in the opinion of one group in the community, perhaps the majority, members of another group are not worthy of equal citizenship.");
424. see also Schauer, supra note 118, at 186 ("If the fact of exclusion is itself a loss of dignity, as it is virtually by definition under this conception of dignity, then a concern with dignity will incline toward minimizing the use of those weapons, including but not limited to speech, by which some people are involuntarily dehumanized.").
425. R. v. Keegstra, [1990] 3 S.C.R. 697, 746-47 (Can.).
426. See id.
427. In the United States, hate speech is generally considered a protected category of speech, so long as the speech does not contain fighting words. See RA.V. v. City of St. Paul, 505 U.S. 377, 386 (1992).
428. See, e.g., Richard Delgado, Are Hate-Speech Rules Constitutional Heresy? A Reply to Steven Gey, 146 U. PA. L. REV. 865, 874 (1998) (noting that other Western democracies which have enacted hate-speech laws "have scarcely suffered a diminution of respect for free speech");
429. Mari J. Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2341-42 (1989) (noting the international community's choice to outlaw racist hate propoganda).
430. See, e.g., International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/RES/2200A(XXI), at art. 20(2) (Dec. 16, 1966) ("Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.");
431. International Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res. 2106 (XX), U.N. Doc. A/ RES/2106(XX), at art. 4 (Dec. 21, 1965) (similar provisions).
432. Schauer, supra note 119, at 33-34.
433. See supra notes 114-21 and accompanying text.
434. See, e.g., Frederick Schauer, Social Foundations of the Law of Defamation: A Comparative Analysis, 1 J. MEDIA L. & PRAC. 3, 3-4 (1980).
435. Robert C. Post, The Social Foundations of Defamation Law: Reputation and the Constitution, 74 GALIF. L. REV. 691, 711 (1986).
436. See id.
437. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 348 (1974).
438. Id. at 350;
439. see also Post, supra note 282, at 720 (examining the three types of reputation implicated in American defamation and libel law).
440. Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring).
441. BVerfG 1971, 30 BVerfGE 173 (Ger.),
442. reprinted in KOMMERS, supra note 41, at 303.
443. BVerfG 1958, 7 BVerfGE 198 (Ger.),
444. reprinted in KOMMERS, supra note 41, at 366.
445. Tammer v. Estonia, App. No. 41205/98, 37 Eur. H.R. Rep. 43, at 857 (2003).
446. See id. at 860.
447. Id. at 865.
448. See id. at 862.
449. Id. at 871.
450. See id. at 867.
451. See id. at 687-68.
452. Lindon v. France, App. Nos. 21279/02 36448/02, 46 Eur. H.R. Rep. 35, at 761 (2008).
453. See id. at 761.
454. See id. at 786.
455. Article 10 of the European Convention on Human rights provides: Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. . . . The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others .... Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 222, art. 10;
456. see also Rao, supra note 19, at 227 (discussing the consequence of limitations clauses on fundamental rights).
457. See Lindon, 46 Eur. H.R. Rep. 35, at 794.
458. Id. at 791.
459. See Post, supra note 282, at 712, 715. From the perspective of the individual [dignity's] essence is inclusion, for under its regime defamation law functions to protect the ability of individuals to be integrated into community membership. From the perspective of society, however, its essence is constitutive, for under the concept of dignity defamation law defines the boundaries and nature of the general community.
460. Id. at 715.
461. See Tammer v. Estonia, App. No. 40215/98, 37 Eur. H.R. Rep., at 857 (Eur. Ct. H.R. 2003).
462. Lawrence v. Texas, 539 U.S. 558, 578-79 (2003).
463. See id. at 578.
464. Id.
465. Id. at 575.
466. Similarly, in Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court held that a Colorado constitutional amendment that prohibited all legislative, executive, and judicial actions to protect homosexuals from discrimination violated the Equal Pro-tection Clause of the Fourteenth Amendment.
467. See id. at 635. The Court did not refer to dignity specifically, but sounded the related themes of inclusion and belonging within the community: "[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected."
468. Id. at 634;
469. cf. id. at 646 (Scalia, J., dissenting) ("Quite understandably, [homosexuals] devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality.").
470. In re Marriage Cases, 183 P.3d 384, 400 (Cal. 2008).
471. Id. at 402.
472. Id. ("[R]etaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation for same-sex couples may well have the effect of perpetuating a more general premise-now emphatically rejected by this state-that gay individuals and same-sex couples are in some respects 'second-class citizens' who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.").
473. See Kerrigan v. Comm'r of Pub. Health, 957 A.2d 407, 412 (Conn. 2008).
474. See id. at 415.
475. Id. at 418
476. (quoting In re Opinions of the Justices to the Senate, 802 N.E.2d 565, 571 (Mass. 2004)).
477. Id.
478. See, e.g., Same-Sex Marriage: Answering the Toughest Questions, NAT'L ORG. FOR MARRIAGE, http://www.nationformarriage.Org/site/c.omL2KeN0LzH/b.4475 595/k.566A/Marriage-Talking-Points.htm (last visited Jan. 28, 2011) (providing talking points regarding the issue for opponents).
479. See id. ("Gays and Lesbians have a right to live as they choose, they don't have the right to redefine marriage for the rest of us.").
480. See Defendant-Intervenors' Trial Memorandum at 2-5,
481. Perry v. Schwarzenegger, 702 F. Supp. 2d 1132 (N.D. CalI. 2010) (No. 09-CV-2292).
482. Jeffrey A. Redding, Proposition 8 and the Future of American Same-Sex Marriage Activism, 14 NEXUS 113, 122 (2009).
483. I v. United Kingdom, App. No. 25680/94, 36 Eur. H.R. Rep. 53, at 967 (2003).
484. Id. at 988.
485. See id. at 989 (noting that in such circumstances, "it appears illogical to refuse to recognise the legal implication of the result to which the treatment leads").
486. Id. at 992 ("In the 21st century the right of transsexuals to personal development and to physical and moral security in the full sense enjoyed by others in society cannot be regarded as a matter of controversy ....").
487. Id. In part, the European Court of Human Rights's decision is based on the language of Article 8 of the European Convention on Human Rights, which protects the "right to respect for private life."
488. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4 1950, 213 U.N.T.S. 222, art. 8. The court recognized that the contours of the positive obligations inherent in the right to respect for private life are "not clear cut."
489. See I, 36 Eur. H.R. Rep. 53, at 986. By using the word "respect," the Article 8 right is phrased in the language of recognition. Article 8 protects something more than just the negative freedom of retaining privacy or being free from government control over private actions. Rather, Article 8 requires some degree of affirmative respect for the choices that are made within the private sphere.
490. Transsexual Case, 49 BVerfGE 286 (1979),
491. reprinted in KOMMERS, supra note 41, at 331.
492. Lawrence v. Texas, 539 U.S. 558, 578 (2003).
493. See, e.g., Christopher A. Bracey, Dignity in Race Jurisprudence, 7 U. PA. J. CONST. L. 669, 702 (2005) ("There is, I believe, an important relationship between dignity and substantive racial justice. ... A crucial aspect of those harsh truths is that slavery, segregation, and modern forms of so-called societal discrimination involve extensive efforts to degrade, dishonor, isolate, and ostracize.").
494. Fiss, supra note 123, at 157.
495. Charles R. Lawrence III, Foreword: Race, Multiculturalism, and the Jurisprudence of Transformation, 47 STAN. L. REV. 819, 824 (1995).
496. 347 U.S. 483 (1954).
497. Id. at 494.
498. 388 U.S. 1 (1967).
499. Id. at 11.
500. 109 U.S. 3 (1883).
501. Id. at 61 (Harlan, J., dissenting).
502. 379 U.S. 241 (1964) (upholding the public accommodations portions of the Civil Rights Act of 1964).
503. Id. at 291-92 (Goldberg, J., concurring) (quoting S. REP NO. 88-872 (1964)).
504. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).
505. See Bracey, supra note 327, at 703-05 (discussing how dignitary concerns contextualize discussions about race and focus on themes of inclusion and community).
506. Balkin & Siegel, supra note 124, at 16.
507. See Adarand Constructors v. Pena, 515 U.S. 200, 218 (1995);
508. Miller v. Johnson, 515 U.S. 900, 911 (1995);
509. supra notes 129-30 and accompanying text.
510. See, e.g., Grau v. Bollinger, 539 U.S. 244, 298-300 (2003) (Ginsburg, J., dissenting) (arguing that the University of Michigan's affirmative action program passed constitutional muster in part because of the history of discrimination and racial oppression targeted against African-Americans and Hispanics that made such affirmative measures constitutionally appropriate).
511. I discuss this issue in greater detail in Rao, supra note 139, at 1070-80.
512. South Africa v. Grootboom, 2001 (1) SA 46 (CCC) at 62 (S. Afr.) (emphasizing that social and economic rights were "key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential").
513. See id. at 69.
514. Id.
515. [1997] 1 S.C.R. 241 (Can.).
516. Id. at 272.
517. Denise G. Réaume, Discrimination and Dignity, 63 LA. L. REV. 645, 688 (2002).
518. See Joanna N. Erdman, In the Back Alleys of Health Care: Abortion, Equality, and Community in Canada, 56 EMORY L.J. 1093, 1100 (2006) (discussing the Canadian case law).
519. Id. at 1099 ("Human dignity is demeaned when individuals and groups are marginalized, ignored, or devalued as less capable, less deserving, or less worthy of recognition as members of Canadian society. Human dignity, as defined under Canadian equality rights, thus encompasses a sense of community; a mutual commitment to treat individuals and groups as capable, deserving, and worthy of full and equal membership in Canadian society.").
520. This is a different rationale than the positive conception of dignity linked with providing minimum standards of social welfare. See supra Part III. In those cases, courts have considered that there exists some external standard of dignity that cannot be met in the absence of certain goods, such as adequate housing.
521. Dignity may also be associated with one's "status" in society.
522. Id.
523. I explain elsewhere that concerns of recognition and stigma require an evaluation of how affected groups view contested policies and these views might change over time. This raises the question of whether the constitutionality of a program such as affirmative action depends on whether the beneficiaries like the program. See Rao, supra note 139, at 1076-77.
524. BERLIN, supra note 8, at 134 ("This demonstrates (if demonstration of so obvious a truth is needed) that conceptions of freedom directly derive from views of what constitutes a self, a person, a man. Enough manipulation with the definition of man, and freedom can be made to mean whatever the manipulator wishes. Recent history has made it only too clear that the issue is not merely academic").
525. A significant amount of modern political philosophy has struggled with these distinct values. See, e.g., ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974);
526. JOHN RAWLS, A THEORY OF JUSTICE (Belknap Press rev. ed. 1999) (1971);
527. WALZER, supra note 208.
528. Berlin argued strenuously against the idea that one principle or ideal could unify all the different and competing values of mankind. See BERLIN, supra note 8, at 169 ("[T]he belief that some single formula can in principle be found whereby all the diverse ends of men can be harmoniously realized is demonstrably false.");
529. id. at 171.