This article originally appeared on Minding the Campus on February 16, 2014.
The academic left has created a great deal of mischief by appropriating wholesome words for unwholesome ends. This game has been perfected with diversity, inclusion, social justice, and sustainability—all words that mean roughly the opposite of what they sound like. Diversity on college campuses denotes both lockstep conformity on identity group politics and radical stereotyping of people by race. Inclusion means excluding anyone who dissents from the prevailing orthodoxy. Social justice often means overriding fundamental freedoms and individual rights to impose arbitrary rule by elite redistributionists. Sustainability means transferring authority to decide how to use our resources from the marketplace to ill-informed bureaucrats.
The latest entry in the topsy-turvy world of inverse semantics is the benign-sounding word, "dignity." Attorney General Eric Holder took the new buzzword out for a spin in a speech to the Swedish Parliament on February 4, in which he touted the United States' commitment to the "dignity" of "every human being."
The speech was in fact an enunciation of the Obama administration's evolving position on the rights of "lesbian, gay, bisexual, and transgender—LGBT—citizens." "Dignity" has been a key word in the gay rights movement, as in Dignity USA, a gay, lesbian, bisexual, and transgender Catholic organization. But I'd like to follow a different thread in the Attorney General's emphatic use of the term. Holder told the Swedes, "We share a belief in the dignity and equality of every human being." He said that the "values that define our nations—values that give rise to dignity, equal opportunity, and justice for every segment of our people—are anything but a novel concept."
There are, to be sure, theological and philosophical arguments for the dignity of mankind. The topic comes up in some debates about the foundations of morality. If we are created in the image of God, human beings have inherent dignity. Our capacity for rational thought also sets us apart as having dignity. And among the philosophers, Kant made special use of the idea of dignity, arguing that it is our ability to choose between right and wrong that raises us above the animals.
But the word "dignity" is essentially foreign to the American legal and Constitution system. And not just the word, but the underlying idea. The Declaration of Independence enunciates our values as "life, liberty, and the pursuit of happiness." Neither the Constitution nor the Bill of Rights mentions "dignity," and it remained virtually unmentioned in U.S. Constitutional law down to 1944, when it appeared as part of a concurring opinion by Justice Frankfurter, and thereafter in a handful of other opinions, such as Justice Murphy's 1946 dissenting opinion in which he opposed the execution of a Japanese war criminal. An interesting summary of this history can be found in a Montana Law Review article in 2004 by a Georgetown professor of law, Vicki Jackson.
The main point that Professor Jackson argued ten years ago was that the claims of "human dignity" were so small a part of our legal heritage that U.S. courts would have to look abroad for precedents. "Human dignity" is not our way of talking about fundamental rights, but it is very much "part of the transnational vocabulary of constitutionalism." The UN Charter upholds it and various European nations make much of it in their post-World War II constitutions. In the U.S. "the concept of 'human dignity' in the Court's jurisprudence is episodic and underdeveloped," but that need not hold us back. Jackson called on Americans to look to "international, transnational and national sources" for the idea, as well as "subnational entities that function with sufficient independence to develop their own lines of authority and reasoning."
"Subnational entities"? A footnote makes clear that Jackson meant state courts, which she imagined could import foreign legal principles even if our higher courts declined to go shopping in more enlightened places.
Those arguing the case for LGBT rights, including gay marriage, have picked up this theme of "dignity" as a fundamental right and run with it. I don't know that this tactic was necessary to their campaign but it has produced some unsettling results. Among other things, we are seeing the Attorney General of the United States declare before the parliament of another country that we have elevated the transnational norm of "dignity" over our own Constitution.
But let's mind the campus. "Dignity" has emerged in the last few years as part of the ever-expanding vocabulary of the "diversity" movement. The University of Illinois's Diversity and Discrimination Policy tells us: "The University is committed to the fundamental principles of academic freedom, equality of opportunity, and human dignity." Marquette University's Statement on Human Dignity and Diversity says: "As a Catholic, Jesuit university, Marquette recognizes and cherishes the dignity of each individual . . ." Diversity Statements of the University of Pittsburgh and the University of Dayton say much the same thing. The roll call could continue, but this is enough to establish the connection. When I wrote my 2003 book, Diversity: The Invention of a Concept, I devoted a whole chapter to the "Language of Diversity" and didn't record a single instance of "dignity" as a moon of diversity. Indeed, if you look at Google's handy Ngram generator, which tracks the frequency of word usage in books published up to 2000, "diversity" surges upward after Justice Lewis Powell's fateful 1978 "diversity" opinion in the case of Bakke v. University of California, while "dignity" continues its 200-year post-Enlightenment slide.
But in the last decade, the two ideas formed a fast friendship. This is perhaps most evident in the outpouring of academic writing on "dignity" as a component of or even the foundation of "diversity."
The Scholarly Moment
Gay rights may have boosted the concept of dignity into greater prominence, but the idea has also rather suddenly become the recipient of broader academic attention.
Christopher McCrudden's edited volume, Understanding Human Dignity, is a 600-page tome from the Proceedings of the British Academy published by Oxford University Press in November. Nothing says dignity like an Oxford UP British Academy proceedings. The publisher reminds us that "courts tell us that human dignity is the foundation of all human rights." Well, maybe European courts do. So far American courts have been more circumspect.
Dignity in this case is not simply a code word for gay rights. It is part of "debates on torture, abortion, same-sex marriage, and welfare reform."
In 2012, Harvard government professor Michael Rosen gave us Dignity: Its History and Meaning (Harvard University Press), which wove together the strands of Christian theology and Kantian philosophy. But Rosen, like the contributors of McCrudden's volume, is interested in finding a basis for law beyond our Constitutional tradition. The question that animates his book is where we can find a universal ground for human worth.
It seems unlikely that Holder was drawing much from the Catholic theological tradition or Kant. A better bet is that he absorbed some of the rhetoric and arguments of the "transnational" movement—which may indeed trace some of its lineage to Kant, but is more conspicuously a development of the UN Charter and attempts to conjure a European "post-nation" out of the sundry states and peoples of that continent. The search for a universalizing language for rights in Africa and other parts of the Third World likewise grows out of a need to find a secure basis for the rule of law in the absence of a vividly compelling tradition that insists on human equality, liberty, and limited government.
That last phrase—limited government—is the key to all the mischief embedded in the new concept of rights based on dignity.
We can grasp what is at stake in the emergence of "dignity" as a would-be superintending legal principle by considering two cases: the European Union and the American college campus. In both instances, the pursuit of "dignity" turns out to be a chase after phantoms that can never be caught. The chasing of those phantoms, however, requires more and more authority to be conferred upon the deputies. In short order, the effort to ensure "the dignity of every human being" becomes the enemy of freedom. It is a recipe for authoritarianism.
Unlike the United States, the EU has made dignity a formal principle. The EU Charter of Fundamental Rights tells us, "Human dignity is inviolable. It must be respected and protected." That's Article 1. How are these rights to be respected and protected? The rights of dignity are enumerated. They include the right not to be executed, the prohibition on selling body parts, freedom from torture, and immunity from slavery. Conspicuous by their absence are any rights involving freedom of expression.
The list might be characterized as protecting rights over one's body without much in the way of protection for rights over one's mind. The matter does come up, as in last year's debate in the EU whether to fine parties that "do not respect the value of the EU." The proposal was introduced by Hannes Swoboda from Austria, who hoped to shut "right-radical or xenophobic" parties out of the EU parliament.
On the American college campus this means speech codes, the cultivation of exquisite sensitivity to identity group slights, the creation of reporting systems in which students can turn in other students for overheard remarks, and the new sexual harassment rules that give the benefit of the doubt to the accuser over the accused. Attorney General Holder's Justice Department, of course, working with the Department of Education's Office of Civil Rights, last year issued the famous 32-page letter to the University of Montana imposing a new nationwide regime in which "sexual harassment" became any "unwelcome conduct of a sexual nature." (The Montana policy imposed by OCR and the Department of Justice is framed by the observation that "discrimination and harassment undermine human dignity.")
How would a campus, let alone a government, police that rule without an overbearing intrusion on the lives of students? The Office of Civil Rights has relented a little, but we are still in an era of aggressive expansion of sexual harassment rules—justified as necessary to advance diversity and to protect "dignity."
On Beyond Dignity
It is not clear that the enthusiasts for "dignity" as the basis of law have glimpsed the full implications of the doctrine, though some probably do and are at home with those implications. Martha Nussbaum, who is tireless in championing diversity of "global citizenship," finds, for example, that "human dignity" requires "rights of access to abortion." Nussbaum discerns that Kant is in her corner because "human dignity involves seeing a human being as an end and not a mere means," and respecting the freedom of women to choose abortions is "simply human dignity."
Then there is Joshua Civin, counsel to the NAACP Legal Defense and Educational Fund, who argued in the run-up to last year's decision in the Fisher case that the University of Texas's "race-conscious admissions policy promotes individual dignity for all students." Say what? Reducing students to their racial coordinates and favoring some over others on the basis of skin color "promotes the individual dignity of all students"? This bizarre assertion comes by way of the argument that a race-neutral approach to college admissions would deny us the dignity of being able to judge people by their race:
"Indeed, a purely race-neutral holistic admissions process might require admissions officials to censor all references to race from students' essays, letters of reference, and every other aspect of their application."
The dignity principle can thus be annexed to a wide range of progressive causes. It may have its greatest prominence in LGBT advocacy, but it slides easily into arguments over extending women's rights to abortion and the rights of minorities to preferential treatment in college admissions.
Not everyone sees "dignity" in these matters. Life, liberty, and the pursuit of happiness under limited government would seem to many of us to provide a more secure foundation for protecting the weak and empowering those who have been dis-privileged. The "dignity" doctrine implies that we need authorities to supervise our lives to prevent infringements. To ensure the dignity of identity groups, we need to enforce their boundaries and make sure their memberships are properly maintained. Ensuring that women's rights to choose abortions are nowhere hampered, we would need to set aside counter-claims to freedom of religion and conscience.
The use of the word "dignity" in these debates is intended to wrong-foot anyone who disagrees with the substance of the claim made on dignity's behalf. Who can be opposed to dignity? An opponent of abortion, race preferences, open borders, gay marriage, and so on is immediately put in the position of having to draw distinctions.
But that's not all.
The invocation of "human dignity" is also an escalation in the rhetorical arms race. Advocates for the various causes which are now being framed as matters of "human dignity" were until now resting their arguments on "human rights," and typically calling on society to "tolerate" the differences among groups of people who exercise those rights. The emphasis on "human rights" has by no means disappeared, but "human dignity" is typically presented as something more fundamental than "rights." The respect due to human dignity goes beyond tolerating one another. We must, if we respect human dignity, affirm one another's differences as expressions of what makes us human.
In other words, the new "dignity" talk leaves little or no room for the dignity of rational disagreement or dissent. That makes it a word that thoughtful people will have to learn how to challenge. It won't be easy, not least because some of the claims made on behalf of dignity are probably valid. Human dignity isn't itself a specious concept, any more than "human diversity" is a specious observation. Opposing slavery and human trafficking on the grounds of "human dignity," for example, makes immediate and compelling sense, and leaves only the question of whether the assertion of "human dignity" is the best way to decry such abuses. In other instances, however, claims grounded on "human dignity" deserve to be routed as cynical ploys.
What is the opposite of "human dignity?" Perhaps abasement. A conservative critique of the "new dignity" could well begin by observing that human abasement is real too, and ought to be taken seriously. As with true human dignity, almost everyone recognizes abasement when he sees it. Step into a casino and observe people of very limited means pumping money into slot machines. Talk to a heroin addict who has already sacrificed his marriage, his family, and his whole life to his needles. Take counsel of your own appetites and ask what would happen to your life if you gave them full reign. Or consider what happens to the personality of someone who gains power and is heedless of the lives of others.
Abasement is not the characteristic of those victimized by others. Rather it is the quality of those who lower their lives to appetite and impulse.
And this, in turn, means that governments cannot confer "dignity" on people. No amount of cheerleading will make us see dignity in the self-abased. Martha Nussbaum again comes to mind. One of her books, Hiding from Humanity: Disgust, Shame, and the Law (2006) offered an extended argument that we should strive to abolish the emotion of "disgust," and if we fall short of that goal, at least make sure that shame and disgust play no role in our laws. It isn't hard to see the connection between Nussbaum's desire to anesthetize our sense of disgust and her elevation of the new form of dignity. To see dignity in all the places she would like to find it, we would have to overcome a great deal of natural repulsion.
"Human dignity" rightly understood is an important idea, which I would not want to sacrifice in an effort to beat back the current misappropriation. Regardless of what Attorney General Eric Holder thinks, our system of law and governance would not be improved by elevating a "transnational" principle of human dignity over our Constitutional order. Regardless of what Martha Nussbaum thinks, our personal relations will not be enriched by banishing our sense of disgust in an effort to see dignity where there is only self-indulgence. Regardless of what campus diversity offices say, equality before the law is better than the "dignity" of a racial spoils system.
I offer these observations, in a spirit of reconnoitering new terrain. Though many scholars have written about "dignity" in connection with its older theological and philosophical meanings, something has changed. We should pay attention.