The jurisprudence of dignity

University of Pennsylvania Law Review

Volumn 160, Issue 1, 2011, Pages 169-233

  Henry, Leslie Meltzer ^a  

^a JOHNS HOPKINS UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 83255170964     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Article

References (267)

1. Bernard Schwartz, How Justice Brennan Changed America, in REASON AND PASSION: JUSTICE BRENNAN'S ENDURING INFLUENCE 31, 41 (E. Joshua Rosenkranz & Bernard Schwartz eds., 1997)
2. see also In Search of the Constitution: Mr. Justice Brennan (PBS televi-sion broadcast Apr. 16, 1987) (interview by Bill Moyers) (highlighting in an interview with Justice Brennan the importance of human dignity in constitutional jurisprudence).
3. William J. Brennan, Jr., My Life on the Court, in REASON AND PASSION
4. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 625 (1984) (finding that sex dis-crimination "deprives persons of their individual dignity")
5. Goldberg v. Kelly, 397 U.S. 254, 264-65 (1970) (explaining that "from its founding" the United States has at-tempted "to foster the dignity and well-being of all persons within its borders," particu-larly the poor)
6. Schmerber v. California, 384 U.S. 757, 767 (1966) (noting that the purpose of the Fourth Amendment "is to protect personal privacy and dignity").
7. See, e.g., Leslie A. Meltzer, Book Review, 359 NEW ENG. J. MED. 660, 660-61 (2008)
8. (reviewing HUMAN DIGNITY AND BIOETHICS: ESSAYS COMMISSIONED BY THE PRESIDENT'S COUNCIL ON BIOETHICS (2008)) (critiquing a collection of essays on dig-nity and calling for a less ideologically driven approach to defining dignity).
9. Hugo Adam Bedau, The Eighth Amendment, Human Dignity, and the Death Penalty, in THE CONSTITUTION OF RIGHTS: HUMAN DIGNITY AND AMERICAN VALUES 145, 145 (Michael J. Meyer & William A. Parent eds., 1992).
10. Alan Gewirth, Human Dignity as the Basis of Rights, in THE CONSTITUTION OF RIGHTS
11. William A. Parent, Constitutional Values and Human Dignity, in THE CONSTITU-TION OF RIGHTS
12. Ronald Dworkin, Three Questions for America, N.Y. REV. BOOKS, Sept. 21, 2006, at 24, 26;
13. see also RONALD DWORKIN, JUSTICE FOR HEDGEHOGS 191-218, 255-75 (2011) (exploring the meaning of dignity).
14. The Court invokes privacy frequently, but unlike its use of dignity, the Court has determined that the Constitution affirmatively protects a right of privacy. See, e.g., Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (finding a right to marital priva-cy).
15. Moreover, the privacy right established in Griswold has been extended by numer-ous Supreme Court cases, including Roe v. Wade, 410 U.S. 113, 153 (1973), wherein the Court held that the right to privacy encompassed the right to an abortion.
16. See, e.g., Cohen v. California, 403 U.S. 15, 24 (1971) ("The constitutional right of free expression . . . is designed and intended to remove governmental restraints from the arena of public discussion . . . in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.")
17. see also Simon & Schuster, Inc. v. Members of the N.Y. State Crime Vic-tims Bd., 502 U.S. 105, 116, 123 (1991) (holding a "Son of Sam" law unconstitutional as burdening speech based on subject matter and quoting Cohen to show that govern-mental restraint of free speech in the political arena is incompatible with individual dignity)
18. Leathers v. Medlock, 499 U.S. 439, 448-49 (1991) (quoting Cohen for the proposition that dignity is at the root of First Amendment protections)
19. cf. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 757-58 (1985) (weighing First Amendment expression against the "essential dignity" of all persons to protect their reputation
20. quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974))).
21. See, e.g., Hudson v. Michigan, 547 U.S. 586, 594 (2006) (explaining that one purpose of the knock-and-announce rule is to protect "dignity that can be destroyed by a sudden entrance")
22. Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 613-14 (1989) (stating that the Fourth Amendment "guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government")
23. Winston v. Lee, 470 U.S. 753, 760, 766-67 (1985) (holding that a person cannot be compelled by the state to undergo surgery to remove a bullet linked to a crime because such an act would be an unwarranted intrusion on personal dignity)
24. Rochin v. Cali-fornia, 342 U.S. 165, 174 (1952) (overturning a drug conviction on the basis that the police's decision to pump the defendant's stomach against his will to acquire evidence was "offensive to human dignity")
25. cf. United States v. Flores-Montano, 541 U.S. 149, 152 (2004) (noting that "some level of suspicion in the case of highly intrusive searches of the person" is warranted due to "dignity and privacy interests," whereas searches of vehicles do not prompt the same concerns).
26. See, e.g., Heath v. Alabama, 474 U.S. 82, 88 (1985) (finding that successive pros-ecutions by two states do not violate the Double Jeopardy Clause because the defen-dant violated the "'peace and dignity' of two sovereigns" in one act
27. (quoting United States v. Lanza, 260 U.S. 377, 382 (1922)))
28. Hampton v. Mow Sun Wong, 426 U.S. 88, 107 (1976) (requiring, under the Due Process Clause, that "aliens be treated with the same dignity and respect accorded to other persons")
29. Miranda v. Arizona, 384 U.S. 436, 460 (1966) ("[T]he constitutional foundation underlying the privilege [against self-incrimination] is the respect a government . . . must accord to the dignity and in-tegrity of its citizens.").
30. See, e.g., Indiana v. Edwards, 554 U.S. 164, 176 (2008) ("[A] right of self-representation at trial will not 'affirm the dignity' of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel."
31. (quoting McKaskle v. Wiggins, 465 U.S. 168, 176-77 (1984)))
32. McKaskle, 465 U.S. at 176-77 ("The right to appear pro se exists to affirm the dignity and autonomy of the accused . . . .") (empha-sis omitted))
33. Faretta v. California, 422 U.S. 806, 834 (1975) (affirming the right to ap-pear pro se but stating that it "is not a license to abuse the dignity of the courtroom").
34. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 419-20 (2008) (restricting the im-position of capital punishment to a narrow range of cases based on "[e]volving stan-dards of decency" that "express respect for the dignity of the person")
35. Roper v. Sim-mons, 543 U.S. 551, 560 (2005) (setting aside the death sentence of a juvenile under the age of eighteen and noting that "the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons")
36. Hope v. Pelzer, 536 U.S. 730, 738 (2002) (finding that handcuffing a prisoner to a hitching post in the sun for seven hours violated the "basic concept underlying the Eighth Amendment[, which] is noth-ing less than the dignity of man" (alteration in original) (quoting
37. Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)) (internal quotation marks omitted))
38. Ford v. Wainwright, 477 U.S. 399, 409-10 (1986) (plurality opinion) (prohibiting the execu-tion of mentally ill persons and explaining that the Eighth Amendment "protect[s] the dignity of society itself from the barbarity of exacting mindless vengeance")
39. Gregg v. Georgia, 428 U.S. 153, 158, 173, 207 (1976) (plurality opinion) (upholding the death penalty of an individual convicted of murder but noting that the Eighth Amendment requires penalties to be in accord with "the dignity of man"
40. (quoting Trop, 356 U.S. at 100) (internal quotation marks omitted))
41. Furman v. Georgia, 408 U.S. 238, 285 (1972) (Brennan, J., concurring) (commenting that "the State may not inflict punish-ments that do not comport with human dignity" under the Eighth Amendment).
42. See Griswold v. Connecticut, 381 U.S. 479, 482-83 (1965) (granting the "same dignity," or status, to privacy as it had previously given to other "peripheral rights").
43. See, e.g., Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002) (describing states as having "dignity that is consistent with their status as sovereign ent-ities")
44. Alden v. Maine, 527 U.S. 706, 715 (1999) (recognizing that states "retain the dignity, though not the full authority, of sovereignty").
45. See, e.g., Lawrence v. Texas, 539 U.S. 558, 567, 578-79 (2003) (overturning Tex-as's antisodomy statute on the ground that "adults may choose" to engage in same-sex relationships and still "retain their dignity as free persons")
46. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 142 (1994) (ruling gender-based juror exclusion criteria un-constitutional and asserting that the criteria "denigrate[] the dignity of the excluded juror")
47. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion) (characterizing "personal decisions relating to marriage, procreation, contra-ception, family relationships, child-rearing, and education" as "central to personal dig-nity and autonomy")
48. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion) (determining that a minority set-aside program implicates the right "to be treated with equal dignity and respect")
49. Thornburgh v. Am. Coll. of Obstetri-cians & Gynecologists, 476 U.S. 747, 772 (1986) ("Few decisions are . . . more basic to individual dignity and autonomy, than a woman's decision . . . whether to end her pregnancy.")
50. Goldberg v. Kelly, 397 U.S. 254, 264-65 (1970) ("From its founding the Nation's basic commitment has been to foster the dignity and well-being of all persons within its borders.").
51. See Rice v. Cayetano, 528 U.S. 495, 517 (2000) (invalidating a Hawaiian race-based voting statute because "it demeans the dignity and worth of a person to be judged by ancestry").
52. For a review of the main criticisms of dignity, see Gerhold K. Becker, In Search of Humanity: Human Dignity as a Basic Moral Attitude, in THE FUTURE OF VALUE INQUIRY 53, 53 (Matti Häyry & Tuija Takala eds., 2001), which describes claims that dignity is an "empty formula without precise content," a "rhetorical device," and a "conversation stopper." Similar arguments have been leveled against the concept of equality.
53. See Pe-ter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 547 (1982) (arguing that the rhetoric of equality should be abandoned because the principle of equality lacks content).
54. Ruth Macklin, Dignity Is a Useless Concept, 327 BMJ 1419, 1419 (2003).
55. But see Suzy Killmister, Dignity: Not Such a Useless Concept, 36 J. MED. ETHICS 160, 160 (2010) (challenging Macklin's claim that dignity is "a useless concept" and arguing that digni-ty can "serve as a guiding principle in medical ethics").
56. John Harris, Cloning and Human Dignity, 7 CAMBRIDGE Q. HEALTHCARE ETHICS 163, 163 (1998) (Eng.).
57. For example, people on both sides of the debate about the morality and legality of physician-assisted suicide appeal to dignity. Daniel P. Sulmasy, Dignity and Bioethics: History, Theory, and Selected Applications, in HUMAN DIGNITY AND BIOETHICS: ESSAYS COMMISSIONED BY THE PRESIDENT'S COUNCIL ON BIOETHICS 469, 469 (2008). Propo-nents argue that individuals with prolonged suffering at the end of life experience a loss of dignity that warrants physician-assisted suicide.
58. See, e.g., Jyl Gentzler, What Is Death with Dignity?, 28 J. MED. & PHIL. 461, 461-80 (2003) (exploring the ways in which advocates of physician-assisted suicide invoke dignity). By contrast, opponents con-tend that the practice fails to properly respect the dignity of human life in every form.
59. See, e.g., Leon R. Kass, Defending Human Dignity (explaining that those who reject physi-cian-assisted suicide do so because "every still-living human being, regardless of condi-tion" has dignity), in HUMAN DIGNITY AND BIOETHICS
60. Helga Kuhse, Is There a Tension Between Autonomy and Dignity?, in 2 BIOETHICS AND BIOLAW 61, 72 (Peter Kemp et al. eds., 2000). Echoing a similar sentiment, South African law professor and judge Dennis Davis has remarked that dignity is "a piece of jurisprudential Legoland-to be used in whatever form and shape is required by the demands of the judicial designer."
61. D.M. Davis, Equality: The Majesty of Legoland Juri-sprudence, 116 S. AFR. L.J. 398, 413 (1999).
62. Most scholarship on the Court's use of dignity focuses on the doctrine of sove-reign immunity. See Ann Althouse, On Dignity and Deference: The Supreme Court's New Federalism, 68 U. CIN. L. REV. 245, 250-56, 265 (2000) (criticizing the Court's use of dignity in justifying state sovereign immunity and arguing instead that the Court focus on practical liability concerns to defend the doctrine)
63. Judith Resnik & Julie Chi-hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 STAN. L. REV. 1921, 1934-54, 1960-63 (2003) (discussing how dignity has increasingly been used in reference to personal dignity and how this trend challenges the use of institutional dignity to support state sovereignty)
64. Peter J. Smith, States as Nations: Dig-nity in Cross-Doctrinal Perspective, 89 VA. L. REV. 1, 10, 51, 106-07 (2003) (claiming that the Court's state dignity jurisprudence maintains an "implicit reliance" on the doctrine of foreign state sovereign immunity and contending that the Court should make this reliance explicit). Notable exceptions, though, do exist.
65. Reva B. Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694, 1702 (2008) (illustrating the ways in which dignity "bridges communi-ties" divided by the abortion debate)
66. Jeremy Waldron, Dignity and Defamation: The Vi-sibility of Hate, 123 HARV. L. REV. 1596, 1612-14 (2010) (defending group defamation laws for the role they play in affirming the equal dignity of persons)
67. Jeremy Waldron, Dignity, Rank, and Rights 10-12, 22-29 (N.Y. Univ. Sch. of Law, Pub. Law & Legal Theory Research Paper Series Working Paper No. 09-50, 2009), available at http://papers. ssrn.com/sol3/papers.cfm?abstract-id= 1461220# [hereinafter Waldron, Dignity, Rank, and Rights] (presenting a conception of dignity that views all humans as possessing high status in relation to law).
68. Over the years, philosophers have extensively examined dignity in this context. See generally THOMAS E. HILL, JR., DIGNITY AND PRACTICAL REASON IN KANT'S MORAL THEORY (1992)
69. Aurel Kolnai, Dignity, 51 PHILOSOPHY 251 (1976) (Eng.)
70. Michael J. Meyer, Dignity, Rights, and Self-Control, 99 ETHICS 520 (1989)
71. Michael J. Meyer, Kant's Concept of Dignity and Modern Political Thought, 8 HIST. EUR. IDEAS 319 (1987)
72. Michael S. Pritchard, Human Dignity and Justice, 82 ETHICS 299 (1972)
73. Herbert Spiegelberg, Human Dignity: A Challenge to Contemporary Philosophy, 9 PHIL. F. 39 (1971)
74. Gloria Zúñiga, An Ontology of Dignity, 5 METAPHYSICA 115 (2004).
75. Theologians have explored the concept of dignity in great depth as well. See gener-ally CATECHISM OF THE CATHOLIC CHURCH1700-15 (1994)
76. Y. Michael Barilan, From Imago Dei in the Jewish-Christian Traditions to Human Dignity in Contemporary Jewish Law, 19 KENNEDY INST. ETHICS J. 231 (2009)
77. Doron Shultziner, A Jewish Conception of Human Dignity: Philosophy and Its Ethical Implications for Israeli Supreme Court Decisions, J. RE-LIGIOUS ETHICS 663 (2006)
78. Thomas F. Torrance, The Goodness and Dignity of Man in the Christian Tradition, 4 MOD. THEOLOGY 309 (1988).
79. See, e.g., Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EUR. J. INT'L L. 655, 664-67 (2008) (examining the use of dignity in national constitutions, international texts, and the charter of the United Nations)
80. Os-car Schachter, Human Dignity as a Normative Concept, 77 AM. J. INT'L L. 848, 848-49 (1983) (identifying where international agreements contain the term dignity)
81. James Q. Whitman, "Human Dignity" in Europe and the United States: The Social Foundations, 25 HUM. RTS. L.J. 17, 17-23 (2004) (comparing the U.S. conception of human dignity to that in Europe primarily through the lens of criminal laws and attributing these vary-ing conceptions of dignity to Europeans' emphasis on societal equality)
82. James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J. 1151, 1160-61 (2004) (asserting that the difference between Europe and America's view of privacy is due to the varying emphasis on liberty or dignity).
83. LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 66 (G.E.M. Anscombe trans., 3d ed. 1968).
84. Cf. MARY ANN GLENDON, RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE 171-83 (1991) (asserting that the tendency in political debates to frame issues in terms of rights diverts political and legal discourse away from meaningful di-alogue about responsibility and community).
85. Address Before a Joint Session of the Congress on the State of the Union, 1 PUB. PAPERS 135 (Jan. 29, 2002).
86. See, e.g., The President's Radio Address, 1 PUB. PAPERS 971 (May 21, 1994) (de-scribing Social Security as a mechanism for allowing older Americans to "face retire-ment in old age with dignity")
87. The President's Radio Address, 1 PUB. PAPERS 569 (Apr. 2, 1994) (remembering Martin Luther King, Jr. for giving every American the "right to live and work in dignity")
88. The President's Radio Address, 1 PUB. PAPERS 556 (Mar. 26, 1994) ("[H]ealth care reform is about . . . bestowing dignity . . . .")
89. The Pres-ident's Radio Address, 2 PUB. PAPERS 2205 (Dec. 25, 1993)
90. ("When we restore dignity and security of work for all people, we'll go a long way toward restoring the fabric of life in all our communities."); The President's Radio Address, 2 PUB. PAPERS 1348 (Aug. 7, 1993) ("We want to end welfare . . . [to] restore dignity to millions . . . .").
91. See In re Yamashita, 327 U.S. 1, 29 (1946) (Murphy, J., dissenting) ("If we are ever to develop an orderly international community based upon a recognition of human dig-nity it is of the utmost importance that the necessary punishment of those guilty of atroci-ties be as free as possible from the ugly stigma of revenge and vindictiveness.").
92. Winston v. Lee, 470 U.S. 753, 760 (1985)
93. (quoting Schmerber v. California, 384 U.S. 757, 767 (1966)).
94. Miranda v. Arizona, 384 U.S. 436, 460 (1966).
95. Hope v. Pelzer, 536 U.S. 730, 738 (2002)
96. (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)).
97. Lawrence v. Texas, 539 U.S. 558, 574 (2003)
98. (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion)).
99. Steven Pinker, The Stupidity of Dignity, NEW REPUBLIC, May 28, 2008, at 28, 31.
100. See, e.g., Holmes Rolston III, Human Uniqueness and Human Dignity: Persons in Nature and the Nature of Persons (noting that dignity is a "relative concept" in that "[s]ome behaviors are more dignified than others"), in HUMAN DIGNITY AND BIOETH-ICS
101. See, e.g., Peter Augustine Lawler, Modern and American Dignity (positing that dig-nity "depends upon natural gifts, gifts that we can misuse or distort but not destroy"), in HUMAN DIGNITY AND BIOETHICS
102. See, e.g., Richard E. Ashcroft, Making Sense of Dignity, 31 J. MED. ETHICS 679, 679 (2005) (explaining that torture is often designed to destroy a torture victim's dignity).
103. Cf. Sara Elizabeth Gavrell Ortiz, Beyond Welfare: Animal Integrity, Animal Dignity, and Genetic Engineering, 9 ETHICS & ENV'T 94, 96 (2004) (acknowledging the argument that genetically reducing the capacities of animals infringes upon their dignity).
104. See, e.g., Martha Nussbaum, Human Dignity and Political Entitlements (arguing that "[h]aving the social bases of self-respect and non-humiliation" are "necessary condi-tions of a life worthy of human dignity"), in HUMAN DIGNITY AND BIOETHICS
105. Similarly, the reductionist view of dignity does not account for why we ascribe dig-nity to non-human entities, such as redwood trees, that clearly lack rationality (claim C'). See Nick Bostrom, Dignity and Enhancement (contending that dignity "is not necessarily confined to human beings" and sharing a quote from the author John Steinbeck which captures dignity as an attribute of redwood trees), in HUMAN DIGNITY AND BIOETHICS
106. See Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002) ("The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities.")
107. Alden v. Maine, 527 U.S. 706, 715 (1999) ("The generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity.").
108. HANS-GEORG GADAMER, TRUTH AND METHOD 300 (John Weinsheimer & Donald G. Marshall trans., Continuum 2d rev. ed. 2004) (1960).
109. See, e.g., GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], May 23, 1949, BGBL. I, art. 1(1) (Ger.)
110. (stating that "human dignity shall be inviolable" under Ger-man law); Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III), art. 1 (Dec. 10, 1948) (stating that "[a]ll humans are born free and equal in dignity and rights").
111. DANIEL J. SOLOVE, UNDERSTANDING PRIVACY, at ix (2008)
112. see also Danielle Keats Citron & Leslie Meltzer Henry, Visionary Pragmatism and the Value of Privacy in the Twen-ty-First Century, 108 MICH. L. REV. 1107, 1109-10 (2010) (reviewing id.) (embracing So-love's pluralistic vision of privacy, rejecting the "quest for a singular essence of privacy" as a "dead end," and suggesting revisions to Solove's approach).
113. THE OXFORD ENGLISH DICTIONARY 656 (2d ed. 1989)
114. see also OXFORD LATIN DICTIONARY 542 (1982) (listing related meanings of dignus).
115. See Teresa Iglesias, Bedrock Truths and the Dignity of the Individual, LOGOS: J. CATHOLIC THOUGHT & CULTURE, Winter 2001, at 114, 120-21 (2001)
116. Julius Caesar used this notion of dignitas to explain that he partly fought the Roman Civil War to restore men to their proper rank and title. He wrote that he aimed "to restore . . . [the] dignity [of] the tribunes," who were the titular leaders dri-ven out of Rome during the war. JULIUS CAESAR, THE CIVIL WAR bk. I, ¶ 22 (J.M. Carter ed. & trans., Aris & Phillips 1991) (c. 45 B.C.E.).
117. THE OXFORD ENGLISH DICTIONARY 656 (2d ed. 1989)
118. see also OXFORD LATIN DICTIONARY 542 (1982) (listing related meanings of dignus).
119. See Teresa Iglesias, Bedrock Truths and the Dignity of the Individual, LOGOS: J. CATHOLIC THOUGHT & CULTURE, Winter 2001, at 114, 120-21 (2001)
120. Julius Caesar used this notion of dignitas to explain that he partly fought the Roman Civil War to restore men to their proper rank and title. He wrote that he aimed "to restore . . . [the] dignity [of] the tribunes," who were the titular leaders dri-ven out of Rome during the war. JULIUS CAESAR, THE CIVIL WAR bk. I, ¶ 22 (J.M. Carter ed. & trans., Aris & Phillips 1991) (c. 45 B.C.E.).
121. 3THOMAS HOBBES, LEVIATHAN 63 (Richard Tuck ed., Cambridge Univ. Press 1991) (1651).
122. See, e.g., Stephen L. Darwall, Two Kinds of Respect, 88 ETHICS 36, 38-39 (1977). (suggesting that there is a difference between "appraisal respect" and "recogni-tion respect").
123. Waldron, Dignity, Rank, and Rights
124. MAGNA CARTA ch. 21 (1215)
125. reprinted in THE ESSENTIAL BILL OF RIGHTS 8, 12 (Gordon Lloyd & Margie Lloyd eds., 1998).
126. reprinted in THE COLONIAL LAWS OF MASSACHUSETTS 5 (Boston, Rockwell & Churchill City Printers 1887).
127. George Washington, Fifth Annual Message to Congress (Dec. 3, 1793), in 7 THE WRITINGS OF GEORGE WASHINGTON 36, 39 (Jared Sparks ed., Boston, American Stationer's Co. 1837).
128. Washington's application of dignity was consistent with its function in the Fe-deralist Papers, in which every use of the word dignity is tied to the heightened stand-ing of the government, the nation, or the offices thereof. Jeremy Rabkin, What We Can Learn About Human Dignity from International Law, 27 HARV. J.L. & PUB. POL'Y 145, 156 (2003).
129. See, e.g., First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 769 (1972) (plurality opinion) (explaining that after The Schooner Exchange the law "is one of implied consent by the territorial sovereign to exempt the foreign sovereign from its exclusive and absolute jurisdiction, the implication deriving from standards of public morality, fair dealing, reciprocal self-interest, and respect for the power and dignity of the foreign sovereign"
130. (quoting Nat'l City Bank v. Republic of China, 348 U.S. 356, 362 (1955)))
131. Ex parte Republic of Peru, 318 U.S. 578, 588 (1943) (noting that the "judicial seizure of a vessel of a friendly foreign state is so serious a challenge to its dignity, and may so affect our friendly relations with it, that courts are required to accept and follow the executive determination that the vessel is immune").
132. Alden, 527 U.S. at 715. See generally id. at 715-27 (explaining why the Eleventh Amendment better reflects the Framers' intentions with regard to state sovereignty than does the decision in Chisholm).
133. Pennsylvania v. Union Gas Co., 491 U.S. 1, 23 (1989) (plurality opinion), over-ruled by Seminole Tribe, 517 U.S. 44.
134. Seminole Tribe, 517 U.S. at 58
135. (quoting P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)).
136. Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743, 760-61 (2002).
137. Sossamon, 131 S. Ct. at 1657.
138. Michael C. Dorf, The Supreme Court, 1997 Term-Foreword: The Limits of Socratic Deliberation, 112 HARV. L. REV. 4, 61 (1998).
139. Henry Paul Monaghan, The Sovereign Immunity "Exception," 110 HARV. L. REV. 102, 132 (1996).
140. Alden v. Maine, 527 U.S. 706, 802-03 (1999) (Souter, J., dissenting).
141. THOMAS PAINE, RIGHTS OF MAN 41 (Gregory Claeys ed., Hackett Publ'g Co., 1992) (1791-1792).
142. Thomas Jefferson, Observations on Démeunier's Manuscript (June 22, 1786)
143. reprinted in THOMAS JEFFERSON: WRITINGS 575, 587 (Merrill D. Peterson ed., 1984).
144. THE FEDERALIST NO. 1, at 14 (Alexander Hamilton) (E.H. Scott ed., 1898). Notably, Hamilton was an illegitimate child and may have had a personal stake in avoiding titles linked to hereditary status.
145. See RON CHERNOW, ALEXANDER HAMILTON 226-27 (2004) (explaining that Hamilton's illegitimacy may have influenced his views on certain political issues, such as a bill that would have in essence forced unwed mothers to disclose having an illegitimate child).
146. Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 HARV. L. REV. 1, 2 (1987) (footnote omitted)
147. cf. MARY WOLLSTONECRAFT, A VINDICATION OF THE RIGHTS OF WOMAN ch. IV (Charles W. Hagelman, Jr. ed., W.W. Norton & Co. 1967) (1792) (arguing in the eighteenth cen-tury that women were not simply "a part of man," but "whole" and rational individuals worthy of equal respect).
148. Colossians 3:11 (New International).
149. Importantly, the theological and philosophical approaches share an evolutio-nary outlook. They understand humans as the highest life form, either as God's cho-sen creatures or as creatures with characteristics superior to plants and other animals. Notably, this form of dignity as equality is for humans only; by its very definition, it renders non-humans inferior. For this reason, well-known philosopher and animal rights activist Peter Singer has claimed that the idea of according special dignity to humans is "speciesist" because it discriminates on the basis of whether a being belongs to a certain species. PETER SINGER, ANIMAL LIBERATION: A NEW ETHICS FOR OUR TREATMENT OF ANIMALS 7-10 (1975).
150. For a different, but related perspective, see Wal-dron, Dignity, Rank, and Rights
151. Avishai Margalit, Human Dignity Between Kitsch and Deification, HEDGEHOG REV., Fall 2007, at 7, 17.
152. The United Nations Universal Declaration of Human Rights seemingly articu-lates this perspective. Historical accounts of the Declaration's drafting suggest that while the relevant delegates all agreed that equal human dignity was important, they disagreed as to what substantively made such equality paramount. See MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARA-TION OF HUMAN RIGHTS 226 (2001) (observing that "there was remarkably little disa-greement regarding [the Declaration's] substance, despite intense wrangling over some specifics").
153. Their agreement-that all humans possess dignity, without further philosophical or theological explanation-exemplifies what Cass Sunstein calls an "in-completely theorized agreement." Cass R. Sunstein, Incompletely Theorized Agreements, 108 HARV. L. REV. 1733, 1735-36 (1995)
154. see also Paul Weithman, Two Arguments from Human Dignity (positing that "the fact that the notion of human dignity is at home in a number of moral traditions makes it an especially useful 'second-level concept,'" in that it serves to express "moral agreement among those who may differ about what first-order ethical vocabulary best explains why human beings merit respect"), in HU-MAN DIGNITY AND BIOETHICS
155. The German word menschenwürde comes closest to referring to the kind of dig-nity that all humans inherently possess because they are human. See generally Dieter Birnbacher, Ambiguities in the Concept of Menschenwürde ("To respect Menschenwürde means to respect certain minimal rights owned by its bearer irrespective of considera-tions of achievement, merit and quality and owned even by those who themselves do not respect these minimal rights in others."), in SANCTITY OF LIFE AND HUMAN DIGNITY 110, 110 (Kurt Bayertz ed., 1996)
156. Damian P. Fedoryka, The Ontological and Existential Dimensions of Human Dignity (characterizing ontological dignity as "dynamic," rather than "static," and claiming that this dignity can only be "actualized" by "a free, con-scious and personal act"), in MENSCHENWÜRDE: METAPHYSIK UND ETHIK 119, 141 (Ma-riano Crespo ed., 1998).
157. This change coincided with the end of World War II, which prompted several nations that had committed wartime atrocities to incorporate respect for human digni-ty into their constitutions. See, e.g., GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUT-SCHLAND [GRUNDGESETZ] [GG] [BASIC LAW], art. 1(1) (stating that "human dignity shall be inviolable" under German law). It also overlapped chronologically with the adoption of the Universal Declaration of Human Rights, which gave a central place to the equal dignity of human beings.
158. See Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III), art. 1 (Dec. 10, 1948) (stating that "[a]ll humans are born free and equal in dignity and rights"). Although one can only specu-late that these events prompted the Court to pay greater attention to individual and collective dignity, its shift in that direction is unmistakable. For a more detailed dis-cussion of the incorporation of dignity into foreign constitutions and the Universal Declaration of Human Rights
159. Cf. Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 776-81 (2011) (exploring the evolving role of "liberty-based dignity" in equal protection law). In rare instances, the Court has also invoked equality as dignity outside of the equal protection doctrine.
160. See, e.g., Trammel v. United States, 445 U.S. 40, 52 (1980) (mod-ifying the traditional spousal privilege rule, which did not allow women a choice in tes-tifying, because "[t]he ancient foundations for so sweeping a privilege have long since disappeared. Nowhere in the common-law world-indeed in any modern society-is a woman regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being.").
161. Cf. Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747, 776-81 (2011) (exploring the evolving role of "liberty-based dignity" in equal protection law). In rare instances, the Court has also invoked equality as dignity outside of the equal protection doctrine.
162. Although liberalism can encompass a variety of positions (e.g., "new," "old," "revisionist," "welfare state," or "social justice" liberalism), see Gerald F. Gaus, The Diver-sity of Comprehensive Liberalisms, in HANDBOOK OF POLITICAL THEORY 100, 100-14 (Ge-rald F. Gaus & Chandran Kukathas eds., 2004), it is only relevant for the purposes of this Article that liberty is at the crux of all liberal theory. The central belief that free-dom is normatively basic and restrictions on freedom therefore require justification is found in the work of modern liberal theorists, such as Joel Feinberg and John Rawls, and in the work of their predecessors
163. John Locke and John Stuart Mill. Compare JOEL FEINBERG, HARM TO OTHERS 9 (1984) (noting that "most writers on our subject have endorsed a kind of 'presumption in favor of liberty'" and that "[l]iberty should be the norm," while "coercion always needs some special justification")
164. and JOHN RAWLS, JUSTICE AS FAIRNESS 44, 112 (Erin Kelly ed., 2001) (contending that "basic liberties have a special status in view of their priority")
165. with JOHN STUART MILL, ON LIBERTY 6 (Longmans, Green, & Co. 1913) (1859)
166. ("[T]he sole end for which mankind are war-ranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection."), and JOHN LOCKE, TWO TREATISES OF GOVERNMENT 287 (Peter Laslett ed., Cambridge Univ. Press 1963) (1690) (claiming that "all Men are naturally in . . . a State of perfect Freedom" and that they should be able to do whatev-er they want "within the bounds of the Law of Nature" (emphasis omitted)).
167. MARVIN PERRY ET AL., WESTERN CIVILIZATION: IDEAS, POLITICS, AND SOCIETY 112-14 (9th ed. 2009).
168. See generally Pico della Mirandola, Oration on the Dignity of Man (1486) (claim-ing that man's dignity resides in his ability to direct his future)
169. reprinted in ON THE DIG-NITY OF MAN 2, 2-34 (Charles Glenn Wallis et al. eds., Hackett Publ'g Co. 1998) (1965).
170. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT AND DISCOURSES 186-89 (G.D.H. Cole trans., J.M. Dent & Sons 1973) (1762)
171. ("Each man alienates . . . by the social contract, only such part of his powers, goods, and liberty as it is important for the community to control . . . ."). IMMANUEL KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS (1785)
172. re-printed in THE MORAL LAW 114 (H.J. Paton trans., Routledge Classics 2005) (1948)
173. [hereinafter KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS]
174. see also IMMANUEL KANT, THE METAPHYSICAL PRINCIPLES OF VIRTUE 127 (James Ellington trans., Bobbs-Merrill Co. 1964) (1797) (stating that "[h]umanity itself is a dignity") 1964) (1797) (stating that "[h]umanity itself is a dignity")
175. See KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS
176. But cf. B.F. SKINNER, BEYOND FREEDOM AND DIGNITY 41-55 (Bantam Books rev. ed. 1990) (1971) (denying that people have the capacity to be morally re-sponsible in their decisions and that human action cannot be the basis of human dig-nity because it is determined by factors beyond individual control).
177. This justification for liberty can also ground claims for equality. For example, some philosophers argue that Kant's maxim is as much about equality as liberty by citing the fact that Pufendorf's De Officio influenced Kant. See, e.g., John Laird, The Ethics of Dig-nity, 15 PHILOSOPHY 131, 131-32 (1940) (Eng.) (asserting that Kant was "very well ac-quainted" with Pufendorf and thus likely "influenced" by him). Pufendorf wrote
178. SAMUEL VON PUFENDORF, ON THE DUTY OF MAN AND CITIZEN ACCORDING TO NATURAL LAW 61 (James Tully ed., Michael Silverthorne trans., Cambridge Univ. Press 1991) (1673).
179. For a modern view of the connection between equality and liberty, see, for example, MARTHA C. NUSSBAUM, SEX & SOCIAL JUSTICE (1999). Nussbaum contends that the "idea of equal worth is connected to an idea of liberty: to respect the equal worth of persons is, among other things, to promote their ability to fashion a life in accordance with their own view of what is deepest and most important."
180. See KANT, GROUNDWORK OF THE METAPHYSIC OF MORALS, supra note 189 , at 105 ("Now I say that man, and in general every rational being, exists as an end in himself, not merely as a means for arbitrary use by this or that will: he must in all his actions, whether they are directed to himself or to other rational beings, always be viewed at the same time as an end."). Isaiah Berlin's notion of "positive liberty" is analogous. He de-scribes a person's "wish to be a subject, not an object . . . deciding, not being decided for, self-directed and not acted upon by external nature or by other men as if I were a thing, or an animal, or a slave incapable of playing a human rule, that is, of conceiving goals and policies of my own and realising them."
181. ISAIAH BERLIN, TWO CONCEPTS OF LIBERTY (1958)
182. reprinted in LIBERTY 166, 178 (Henry Hardy ed., 2002).
183. Kant's influence is evident in the work of many of his strongest critics. See, e.g., ROBERT B. PIPPIN, HEGEL'S IDEALISM: THE SATISFACTIONS OF SELF-CONSCIOUSNESS 16-24 (1989) (explaining that Hegel's concerns about Kant's philosophy shaped Hegel's own account of morality)
184. ARTHUR SCHOPENHAUER, THE WORLD AS WILL AND REPRE-SENTATION 415-534 (E.F.J. Payne trans., Dover Publ'ns 1966) (1958) (rejecting rationa-listic, Kantian conceptions of the world but also acknowledging Kant's critical contri-butions in this area)
185. Ayn Rand, Brief Summary, OBJECTIVIST, Sept. 1971, at 1, 4 (opposing Kantian liberalism in favor of her own theory of objectivism).
186. Giovanni Bognetti, The Concept of Human Dignity in European and U.S. Constitu-tionalism, in EUROPEAN AND U.S. CONSTITUTIONALISM 85, 89 (Georg Nolte ed., 2005). for, self-directed and not acted upon by external nature or by other men as if I were a thing, or an animal, or a slave incapable of playing a human rule, that is, of conceiving goals and policies of my own and realising
187. ISAIAH BERLIN, TWO CONCEPTS OF LIBERTY (1958)
188. reprinted in LIBERTY 166, 178 (Henry Hardy ed., 2002).
189. Kant's influence is evident in the work of many of his strongest critics. See, e.g., ROBERT B. PIPPIN, HEGEL'S IDEALISM: THE SATISFACTIONS OF SELF-CONSCIOUSNESS 16-24 (1989) (explaining that Hegel's concerns about Kant's philosophy shaped Hegel's own account of morality)
190. ARTHUR SCHOPENHAUER, THE WORLD AS WILL AND REPRE-SENTATION 415-534 (E.F.J. Payne trans., Dover Publ'ns 1966) (1958) (rejecting rationa-listic, Kantian conceptions of the world but also acknowledging Kant's critical contri-butions in this area)
191. Ayn Rand, Brief Summary, OBJECTIVIST, Sept. 1971, at 1, 4 (opposing Kantian liberalism in favor of her own theory of objectivism).
192. Giovanni Bognetti, The Concept of Human Dignity in European and U.S. Constitu-tionalism, in EUROPEAN AND U.S. CONSTITUTIONALISM 85, 89 (Georg Nolte ed., 2005).
193. The Court also has invoked liberty as dignity to uphold First Amendment speech rights and Fourth and Fifth Amendment protections against self-incrimination. In the landmark case Cohen v. California, the Court reasoned that no approach, except free-dom of speech, "would comport with the premise of individual dignity and choice upon which our political system rests." 403 U.S. 15, 24 (1971)
194. see also Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991) (holding as unconstitutional a statute that provided disincentives for particular speech by felons).
195. In Stanford v. Texas, the Court stated that the First Amendment, along with the Fourth and Fifth, "are indeed closely related, safeguarding not only privacy and protection against self-incrimination but conscience and human dignity and freedom of expression as well." 379 U.S. 476, 485 (1965)
196. (quoting Frank v. Maryland, 359 U.S. 360, 376 (1959)
197. (Douglas, J., dissenting)); cf. Indiana v. Edwards, 554 U.S. 164, 176 (2008) (restricting an incompetent individual's right to represent himself in court so as to protect his per-sonal integrity as dignity)
198. Milkovich v. Lorain Journal Co., 497 U.S. 1, 3, 22-23 (1990) (restricting a newspaper's use of defamatory speech in order to affirm an individual's right to protect his personal integrity as dignity). For further discussion of the intersec-tions between dignity and speech rights
199. see Roberta Rosenthal Kwall, A Perspective on Human Dignity, the First Amendment, and the Right of Publicity, 50 B.C. L. REV. 1345, 1350-55 (2009)
200. and Frederick Schauer, Speaking of Dignity, in THE CONSTITUTION OF RIGHTS: HUMAN DIGNITY AND AMERICAN VALUES
201. overruled in part by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (plurality opinion).
202. 18 PA. CONS. STAT. §§ 3201-3220 (1982), invalidated in part by Thornburgh, 476 U.S. 747.
203. Thornburgh, 476 U.S. at 750.
204. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 440, 454-55 (1972) (upholding the right of unmarried couples to access contraception)
205. Griswold v. Connecticut, 381 U.S. 479, 485-86 (1965) (prohibiting the state from interfering with married couples' right to use contraception)
206. Meyer v. Nebraska, 262 U.S. 390, 400-03 (1923) (recognizing the right to direct the education and upbringing of one's children)
207. Thornburgh, 476 U.S. at 772.
208. Casey, 505 U.S. at 879-901.
209. Casey, 505 U.S. at 851.
210. Lawrence v. Texas, 539 U.S. 558, 574 (2003)
211. (quoting Casey, 505 U.S. at 851). Although the Court mentions privacy, at least one commentator has claimed that liber-ty as dignity "is doing all the work."
212. Randy E. Barnett, Justice Kennedy's Libertarian Revo-lution: Lawrence v. Texas, 2002-2003 CATO SUP. CT. REV. 21, 34 (2003).
213. Lawrence, 539 U.S. at 567. Importantly, the Court also invokes personal integri-ty as dignity in its claims that individuals have a right to be free from the demeaning nature of a law that condemns their homosexual activity. The Court explains that be-cause the Texas statute required the state to add individuals convicted of same-sex sodomy to its registry of sex offenders, it stigmatizes and demeans the very "existence" of homosexual individuals.
214. Lawrence, 539 U.S. at 573-74.
215. Neomi Rao, On the Use and Abuse of Dignity in Constitutional Law, 14 COLUM. J. EUR. L. 201, 241 (2008).
216. Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 MICH. L. REV. 1555, 1583 (2004)
217. But see Yale Kamisar, Foreword: Can Glucksberg Survive Lawrence? Another Look at the End of Life and Autonomy, 106 MICH. L. REV. 1453, 1466-67 ( 2008) (concluding that the Court is unlikely to overrule Glucksberg because physician-assisted suicide, among other things, does not involve a "politically vulnerable group," nor does it have an "emerging [societal] awareness").
218. As a matter of law, most states do not require individuals to engage in supere-rogatory behavior. For example, the vast majority of states do not compel bystanders to provide emergency aid to people in need, or even call 911. See, e.g., MASS. ANN. LAWS ch. 112, § 12B (LexisNexis 2004) (providing legal immunity to physicians, physi-cian assistants, and nurses who choose to provide emergency medical services)
219. N.Y. PUB. HEALTH LAW § 3000-a(1) (McKinney 2007) (preventing legal suits against people who provide emergency medical services, but not requiring such behavior). Excep-tions to that general standard include Minnesota and Vermont, both of which have Good Samaritan laws that require any person at the scene of an emergency to provide reasonable assistance to another person in need.
220. See MINN. STAT. ANN. § 604A.01 (West 2000) (mandating that people provide "reasonable assistance" to someone who "is exposed to or has suffered grave physical harm," so long as the person does not en-danger himself in the process)
221. VT. STAT. ANN. tit. 12, § 519(a) (2002) (requiring "rea-sonable assistance" by a person who is aware that another is in "grave physical danger" and who can help without endangering himself).
222. Socrates, for example, suggests that wisdom is the most important human vir-tue because it allows man to make the best use of his other assets, such as health, wealth, justice, and courage. 2 PLATO, Euthydemus (c. 390 B.C.E.), in LACHES PROTA-GORAS MENO EUTHYDEMUS 373, 411-13 (W.R.M. Lamb trans., Harvard Univ. Press 1977).
223. Richard Parry, Ancient Ethical Theory, STANFORD ENCYCLOPEDIA PHIL. (Aug. 7, 2009), http://plato.stanford.edu/entries/ethics-ancient.
224. See generally ARISTOTLE, THE NICOMACHEAN ETHICS OF ARISTOTLE bks. III-IV, at 54-115 (R.W. Browne trans., London, George Bell & Sons 1889) (c. 384 B.C.E.) (set-ting forth the variety of moral virtues).
225. A humorous exposition of this use of dignity can be found in the works of the ancient Roman dramatist Plautus, who applied this form of dignity in a number of his slapstick comedies. See, e.g., PLAUTUS, Pseudolus (191 B.C.E.) (explaining that it is fit-ting, "dignum," to send letters of good wishes to people they befit, "dignis," but conclud-ing that because his interlocutor is not worthy, "dignum," of such a letter, he will not bother sending him one)
226. in THE POT OF GOLD AND OTHER PLAYS 217, 255 (E.F. Watl-ing trans., 1965)
227. PLAUTUS, The Slip-Knot (192 B.C.E.), in THREE PLAYS OF PLAUTUS 51, 164 (F.A. Wright trans., 1925) (commenting that one character's form is fitting, "digna forma," of his profession-that he looks like the beggar he is).
228. Cicero explained that it is "a great and admirable distinction to have borne ad-versity wisely, not to have been crushed by misfortune, and not to have lost dignity in a difficult situation." CICERO, DE ORATORE bk. II, 346-47 (H. Rackham ed., E.W. Sut-ton trans., Harvard Univ. Press 1959) (55 B.C.E.). Accordingly, actions that are ex-traordinary in one context may be unremarkable in others. The fact that Nelson Mandela completed his law degree from the University of London while he was a polit-ical prisoner in South Africa suggests he possesses an extraordinary amount of mental strength, courage, and perseverance. We would not say the same thing about his fel-low graduates who completed their degrees in residence.
229. Martha Nussbaum's excellent work on human capabilities expresses this Aristo-telian view. See MARTHA C. NUSSBAUM, FRONTIERS OF JUSTICE: DISABILITY, NATIONALI-TY, SPECIES MEMBERSHIP 159-60 (2006) (describing the capabilities approach to digni-ty, which "sees rationality and animality as thoroughly unified")
230. MARTHA C. NUSSBAUM, WOMEN AND HU-MAN DEVELOPMENT: THE CAPABILITIES APPROACH 70-73 (2000) ("We judge, frequently enough, that a life has been so impoverished that it is not worthy of the dignity of the human being, that it is a life in which one goes on living, but more or less like an ani-mal, unable to develop and exercise one's human powers.")
231. See MICHAEL A. SMITH, HUMAN DIGNITY AND THE COMMON GOOD IN THE ARIS-TOTELIAN-THOMISTIC TRADITION 6-15 (1995) (describing Aristotle's theory of the "one" or "whole" person).
232. THE OXFORD ENGLISH DICTIONARY 368 (1961).
233. See After the Euphoria, ECONOMIST, Dec. 20, 2003, at 79, 79-80 (describing the capture of Saddam Hussein and explaining that "[s]ome Iraqis felt that the sight of addam looking so unkempt and submissive made those who cowered in his shadow seem slightly pathetic").
234. Shaming and humiliation occur in a variety of settings and create negative ex-ternalities. See, e.g., MARTHA C. NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 172-221 (2004) (criticizing the use of stigmatization, shame, and humili-ation as a cure for criminal wrongdoing and perceived social degeneracy)
235. DANIEL J. SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 76-102 (2007) (demonstrating the individual and social costs of unconstrained gossip, slander, and rumor in cyberspace)
236. Dan M. Kahan, What's Really Wrong with Shaming Sanctions, 84 TEX. L. REV. 2075, 2075-76 (2006) (concluding that shaming punishments are not acceptable to a significant segment of society and therefore recanting his pre-vious argument that shaming sanctions are expressively equal to imprisonment).
237. Milkovich, 497 U.S. at 22 (emphasis added)
238. (quoting Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring)).
239. Cf. Cohen, 403 U.S. at 21 (noting that a decision to close off discourse to pre-vent others from hearing it requires a showing of intolerable invasion of substantial privacy interests).
240. (quoting McKaskle v. Wiggins, 465 U.S. 168, 176-77 (1984)) (internal quotation marks omitted).
241. (Scalia, J., dissenting) (quoting Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 626 (1989)).
242. Id. at 686-87. In his dissent in Skinner v. Railway Labor Executives' Ass'n, a drug-testing case decided the same day as Von Raab, Justice Marshall, joined by Justice Bren-nan, concluded that compelled drug testing "significantly intrudes on the 'personal privacy and dignity against unwarranted intrusion by the State' against which the Fourth Amendment protects." 489 U.S. 602, 644 (1989) (Marshall, J., dissenting) (quoting Schmerber v. California, 384 U.S. 757, 767 (1966)).
243. quoting Charles Fried, Privacy, 77 YALE L.J. 475, 487 (1968)).
244. Although there is not a single brand of communitarianism, most political phi-losophers labeled as communitarian thinkers reject the Rawlsian view that the princip-al purpose of government is to protect individual liberty interests. See, e.g., MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982) (arguing that Rawlsian liberal-ism is overly individualistic to the detriment of society).
245. Gilbert Mei-laender, Human Dignity: Exploring and Explicating the Council's Vision (stating that digni-ty characterizes humans as the rational species), in HUMAN DIGNITY AND BIOETHICS
246. See, e.g., Leon Kass, Human Dignity (introducing a set of readings highlighting the many facets of humanity), in BEING HUMAN: CORE READINGS IN THE HUMANITIES 568 (Leon Kass ed., 2004).
247. Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 COLUM. L. REV. 1681, 1709-34 (2005).
248. Several international laws prohibit torture. See International Covenant on Civil and Political Rights art. 7, Dec. 19, 1966, S. EXEC. DOC. E, 95-2 (1978)
249. 999 U.N.T.S. 171 ("No one shall be subjected to torture or to cruel, inhuman or degrading treat-ment or punishment.")
250. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 4, Dec. 10, 1984, S. TREATY DOC. NO. 100-20 (1988)
251. 1465 U.N.T.S. 85 (requiring states to "ensure that all acts of torture are of-fences under its criminal law").
252. For further discussion of the view that participating in torture harms liberal institutions, see David Luban, Liberalism, Torture, and the Ticking Bomb, 91 VA. L. REV. 1425, 1425-61 (2005), and Waldron
253. CE Ass., Oct. 27, 1995, Rec. Lebon 372, http://www.utexas.edu/law/ academics/centers/transnational/work-new/french/case.php?id=1024.
254. Kent Greenawalt, Dignity and Victimhood, 88 CALIF. L. REV. 779, 781 (2000).
255. See Roper v. Simmons, 543 U.S. 551, 560 (2005) (setting aside the death sen-tence of a juvenile under the age of eighteen)
256. Atkins v. Virginia, 536 U.S. 304, 318-21 (2002) (holding as unconstitutional the execution of mentally retarded prisoners)
257. Ford v. Wainwright, 477 U.S. 399, 409-10 (1986) (plurality opinion) (finding the ex-ecution of mentally ill persons unconstitutional).
258. See Hope v. Pelzer, 536 U.S. 730, 737 (2002) (stating that if true, petitioner's allegations that he was handcuffed to a hitching post for seven hours in the sun with almost no breaks would establish an Eighth Amendment violation).
259. Rochin v. California, 342 U.S. 165, 172 (1952).
260. Id. at 742 (quoting Gates, 501 F.2d at 1306).
261. Justice Ginsburg reiterated this view most recently in Ashcroft v. al-Kidd, wherein she noted that the harsh custodial conditions in which al-Kidd was kept were "a grim reminder of the need to install safeguards against disrespect for human dignity, con-straints that will control officialdom even in perilous times." 131 S. Ct. 2074, 2089 (2011) (Ginsburg, J., concurring).
262. In Winston v. Lee, the Court prohibited a search that would have forced a rob-bery suspect to undergo surgery requiring general anesthesia to remove a bullet that might have implicated him in a crime. 470 U.S. 753, 755 ( 1985). Writing for the ma-jority, Justice Brennan noted that "'[t]he overriding function of the Fourth Amend-ment is to protect personal privacy and dignity against unwarranted intrusion by the State.'"
263. Rochin, 342 U.S. at 173.
264. U.S.C. § 1531 (2006). The term "partial-birth abortion" is not a medical term, but a political one crafted by anti-abortion advocates with the intent to incite opposition to abortion generally.
265. Gonzales v. Carhart, 550 U.S. 124, 137 (2007).
266. Carhart, 550 U.S. at 158 (quoting 18 U.S.C. § 1531 note (2000)).
267. Doron Shultziner, Human Dignity-Functions and Meanings, 3 GLOBAL JURIST TOPICS 1, 5 (2003).