‘Dignity,’ Another Legal Trojan Horse

May 06, 2015 |  Peter Wood

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‘Dignity,’ Another Legal Trojan Horse

May 06, 2015 | 

Peter Wood



“Dignity” has been taken out for another walk around the block.  In February 2014, I wrote an essay on Minding the Campus in which I commented on Attorney General Eric Holder’s speech to the Swedish Parliament, wherein he spoke of his nation’s commitment to the “dignity” of “every human being.”

Over the last couples of decades, “dignity” acquired a secondary meaning something like “the intrinsic integrity of lesbian, gay, bisexual, and related sexual minority lifestyles.”  The word has become an assertion, first, of equality, as in ‘We all have human dignity and therefore a legitimate right to participate fully in society.’  But the word also asserts, rather aggressively, a moral authority to silence and to punish those who in some way endanger an individual’s experience of “dignity.”  Here the word drifts into the sphere of reasons why people need “safe spaces,” “trigger warnings,” and protection against “micro aggressions.”

The invocation of dignity, I wrote last year, has become an escalation in the rhetorical arms race.

It appears Jeffrey Rosen, the George Washington University law professor and ubiquitous liberal commenter on all things legal, has stumbled into agreement with me.  Writing in The Atlantic on “The Dangers of a Constitutional ‘Right to Dignity,’” Rosen considers what will follow if the Supreme Court “strikes down same-sex marriage bans […] on the grounds that they violate the dignity of gay couples.”

As I pointed out last year, “dignity” is an extra-Constitutional principle in the United States, and one with only a sketchy presence in case law.  If the high court finds a right to gay marriage on the basis of “dignity,” it will be conjuring a new fundamental principle into our legal system.  Justice Kennedy seems eager to do just that, and it rightly worries Rosen.  Rosen notes that the word has appeared in more than 900 Supreme Court decisions.   But that’s misleading.  “Dignity” isn’t to be found in the Declaration, the Constitution, the Bill of Rights, or anywhere really, until it was invoked in 1944 by Justice Frankfurter.  After Frankfurter’s opinion, it furtively hung around until our legal elites found themselves in need of rhetoric that would justify making up new law to support the overarching claims of sexual autonomy.  Rosen quotes the Kennedy’s opinion in the 1992 abortion case, Planned Parenthood v. Casey, where he invoked “choices central to personal dignity and autonomy,” as the ground of the “liberty” to abort.  Kennedy also invoked “dignity” in his 2003 Lawrence decision, sweeping away legal bans on homosexual behavior.

Rosen provides a phrase I had not seen before to describe the matters that Casey and Lawrence now put at the discretion of judges:  curing “dignitary harm.”  If “dignity” were to be further elevated as a principle (“Kennedy’s new synthesis of dignity with liberty and equality”) we will well and truly be launched into a voyage on the high seas of legal improvisation.  Rosen observes that in Kennedy’s mind the dignity that follows an individual’s efforts to gratify his sexual appetites (his “interest in dignity”) trumps “traditional moral values.”

What is to constrain “dignity” as the all-purpose demand that the state protect the sexual adventurer from any and all forms of social disapproval?  The court may yet find a limiting counter principle, but it hasn’t found one yet.  Protecting procreation and preserving “tradition” as such have been “ruled out of bounds.”

So why is Rosen, who is all in favor of gay marriage, worried about the direction of the Court?  He is worried that Constitutionalizing “dignity” would undermine First Amendment rights to free speech.  He also thinks that conservatives could discover their own ways to weaponize the concept, as when Justice Scalia found “a dignitary interest attached to the right to bear arms.”  And Rosen observes, correctly, that the concept is vague and ill-defined.  So vague that conservatives might use it to strike down “progressive legislation.”

Right about that.  If we get stuck with this as a Constitutional principle, I’m not going to waste time fighting it.  I will be lining up with those to express the profound injury to my dignity caused by campus leftists who say mean things about me and in sundry ways show disrespect for my ideas.  Maybe I can get a class action suit going with the other contributors of Minding the Campus who are similarly situated in “dignitary harm” from left-leaning faculty councils and progressive editorial pages.

In truth, I’d rather the Supreme Court back away from making an overriding principle of dignity, and I’m glad Rosen sees it as folly as well.  Rosen and I disagree on the reasons.  In my view, the core Constitutional principles of liberty and equality are ample and introducing a Kennedy amendment to our basic law by making “dignity” coordinate with liberty and equality would profoundly undermine our basic freedoms.  At a still deeper level, I don’t believe there is such a thing as a “right to dignity” that can legislated or promulgated by courts.  Not for lack of trying, of course.  The EU recognizes such a right, but the EU case also demonstrates that, as a legal right, human dignity is reduced to mere superficialities.

Actual human dignity exists, where it does exist, in the composure of the individual regardless of his circumstances.  It cannot be conferred by a legal decision or a law.  The attempt to confer it that way is doomed to failure but it won’t be a clean failure.  It will take the tablecloth, the glassware, and the soup down with it.

This article originally appeared at Minding the Campus on May 4, 2015. 

Image: The Guardian