Centering Dignity in American Legal Discourse
Matthew Lutwen Student ID: 01403472
Submitted on May 24, 2016 For completion of the Masters of Arts in American Studies
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Table of Contents
Acknowledgements……………………………………………………………………...3
Abstract………………………………………………………………………………….5
Introduction……………………………………………………………………...………6
Chapter 1: Philosophical Approaches to Law and Dignity………………………..……11
Chapter 2: The Importance of Dignity in Case Law……………………..……………..27
Chapter 3: Implications and Effects of Greater Dignity Concern and Jurisprudence….42
Conclusion……………………………………………………………………………...57
Bibliography…………………………………………………………………………....60
WC: 16,641 Lutwen 3
This work is dedicated to my parents and Dr. Ken Kennard. Lutwen 4
Proletarian Portrait
A big young bareheaded woman in an apron
Her hair slicked back standing on the street
One stockinged foot toeing the sidewalk
Her shoe in her hand. Looking intently into it
She pulls out the paper insole to find the nail
That has been hurting her
- William Carlos Williams
Utterance
Sitting over words very late I have heard a kind of whispered sighing not far like a night wind in pines or like the sea in the dark the echo of everything that has ever been spoken still spinning its one syllable between earth and silence
- W.S. Merwin
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Abstract
While the notion of dignity has a long history, its usage took on a different character in the mid-20th century. Prior, it had reflected status, honor, and rank. It was connected to hierarchy. That largely changed after World War II. It took on a privileged position in this new materialization of human rights—indeed, it became conceptualized as a right. Various national constitutions would indicate either a right to dignity, or mandate that due consideration to the notion be required. This sense of dignity worked against hierarchy—it provided that persons were equal in worth, deserving equal concern by the state. At this time, the U.S. Supreme Court began employing the notion as well. The usage of dignity has increased ever since. In its most recent utterance, Justice Kennedy, writing the opinion in the Obergefell v. Hodges case, held that to deny homosexuals the right to marry is to deny their equal dignity, and therefore, unconstitutional. While we have grown comfortable with the notions of equality, liberty, and privacy, all of which at this point have readily accessible precedent, the notion of dignity raises questions. The author will address the questions surrounding the use of dignity by the Court. From there we will juxtapose this notion of dignity with various aspects of the American legal system that may be lacking in dignity. The author will conceptualize and articulate the power within dignity rhetoric, its pertinence to civil society, seeking to spur members of civil society to (and continue to) ‘center dignity’ in American legal discourse. Our work will review the (already) centering of dignity as historical fact and will propose the (further) centering of dignity as praxis.
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Introduction
In one of the greatest American short stories writer Raymond Carver develops an understanding of the notion of love. The setting: two couples at a table with a bottle of gin, discussing love through stories. The story-telling nature of this setting allowed for a showing rather than a telling of what love was. The title of the story, What We Talk About When We Talk About Love, has taken on its own semantic significance; various writers have used this construction, switching out ‘Love’ for other notions, such as ‘Running’, ‘War’, and ‘God’. It appears that such a construction extends meaning out of the dictionary and into the lived the experience of the notion selected. While the likes of Immanuel Kant and Ronald Dworkin have expounded on the theoretical—philosophic, social and legal—dimensions of dignity, it remains still a visceral, existential notion. It is spoken from the soapbox and branded upon picket signs. Indeed, its subjective origins lends to its nature as context-specific rhetoric. For this reason, at the start of our analysis, to consider the question: What Do We Talk About When We Talk About Dignity? When, just prior to take-off, a passenger was escorted off of a plane, for reasons associated with his speaking Arabic over the phone, stated to the press that “Human dignity is the most valuable thing in the world, not money,”1 what was he talking about? Something about the event spurred the word dignity. Perhaps it was the offense to his autonomy, or the fact that he was excluded, or that he was disrespected. These facets—of autonomy, inclusion/exclusion, and respect—are all represented in the scholarship on dignity. But, does any such facet or understanding need be singled out as the ‘correct interpretation’ to explain the young man’s utterance, in order for it to be profound or relevant? The author believes the answer is both yes, and no. The importance of a precise definition of dignity exists for its place in the law. A precise definition allows for the courts to treat ‘like cases alike’, that is, it allows for a consistent adjudication on matters in which dignity is implicated. However, there are two reasons why a singled-out definition is unnecessary in keeping his utterance relevant. Firstly, the U.S. Supreme Court ostensibly does not have an agreed-upon definition of
1 “California student says airline removed him for Arabic.” Associated Press 17 April 2016:
2 The case introduced the modern Eighth Amendment standard, which follows that a particular punishment must conform to “the evolving standards of decency that mark the progress of a maturing society.” 3 Critical actors of civil society here include litigators, scholars, community leaders, activists, and those directly or indirectly affected by the criminal justice system. 4 Pitkin, Hanna F. Wittgenstein and Justice: On the Significance of Ludwig Wittgenstein for Social and Political Thought. Berkeley: University of California Press, 1972. Print. 5 Scholar Leslie Meltzer Henry complements this idea, noting that “Standard accounts contend that dignity is either reducible to another concept, such as autonomy, or has a core meaning that is applicable across all contexts. Although these views are tidy and attractive, they tend to draw dignity’s boundaries too narrowly or too broadly.” Henry, Leslie M. “The Jurisprudence of Dignity.” University of Pennsylvania Law Review 160 (2011): 169-233. Web. p. 177. 6 Ibid. 7 Dworkin, Ronald. Law’s Empire. Cambridge, Mass: Belknap Press, 1986. Print. Lutwen 9 critical role in civil society as well, indeed in dialectical fashion with litigators. As Dworkin notes: [U]topian legal politics is, in that broad way, law still. Its philosophers offer large programs that can, if they take hold in lawyers’ imagination, make its progress more deliberate and reflective. They are chain novelists with epics in mind, imagining the work unfolding through volumes it may take generations to write. In that sense each of their dreams is already latent in the present law; each dream might be law’s future.”8 Considering this, there is a formidable area of praxis for academics and lawyers in the development of dignity jurisprudence. While some positivists, strict textualists, and otherwise formalist observers may refute the idea that civil society plays a significant role in the evolution of the law, the author believes that both history and practice show otherwise. No less, various legal viewpoints as those expressed above are important to consider (as the author will in Chapter 1) as some judges adjudicate from the more formalist positions. As will be explored in the first two chapters, scholars’ understandings of the role of dignity range the gamut, but most fall within frameworks of rights, principles, values, ‘empty rhetoric’, or ‘dangerous precedent’. However, the author is particularly partial to dignity being of constitutional value budding into a sort of constitutional principle, a position that will be supported throughout the paper. In Chapter 1, titled Philosophical Approaches to Law and Dignity, we will explain the intellectual history of dignity, illustrate how various scholars understand dignity, and discuss the framework in which law incorporates dignity (which includes divergent general theories of law, the philosophical groundings of dignity, and how the two relate within dignity jurisprudence). In Chapter 2, titled The Importance of Dignity in Case Law, we will elucidate the role of dignity in jurisprudence, both within the US and abroad, by reviewing its position in case law before highlighting the current understanding of American dignity jurisprudence. Lastly, in Chapter 3, titled The Implications and Effects of Dignity Concern and Jurisprudence, we will extend the
8 Ibid. Lutwen 10 contemporary understanding of dignity jurisprudence to areas of the American legal system in which dignity lacks, placing dignity jurisprudence as a potential remedying agent within the historical continuum of racial subordination in the United States. By the end of the first chapter we would like to have expressed the range of ‘what philosophers talk about when they talk about dignity’. In the following chapter we will observe the way jurists talk about dignity. In the last chapter we will highlight what we (civil society) talk about when we talk about dignity.
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Chapter 1: Philosophical Approaches to Law and Dignity
Philosophers are charged with the task of conceptualizing and articulating lived experience into generalizable frameworks by which we can order (and understand the order of) relations within society. They reflect and propose, castigate, uncover and evaluate. Take as an example Les philosophes of the Enlightenment, who facilitated the re-imagining and restructuring of Western society. Not only did they question the fundamental power structures of their societies—the role of religious authority and the general exclusion of the poor—they also engendered a rights discourse. This developed toward two ends, namely in political and civil rights. The former claimed equal rights in political participation (though both the American and French revolutionaries would deny women such rights, and the Americans would continue slavery long past the French), and the latter mandating equal treatment before the law. Henceforth, we would have the principle of ‘the rights of man’, which, while not totally inclusionary, was novel. French society saw a tumultuous and violent revolution, which on the values and principles put forth in their post-conflict resolution, would alter the long-establish hierarchy. No matter their (not unique) colonial endeavors to come, their domestic affairs would sit as a new model of western civilization grounded on laudable rights put forth in their Déclaration des droits de l'homme et du citoyen. Their philosophes, along with those across the English Channel, would have no small influence on the budding American experiment. Historian Peter Gay would write that the ties between the American Enlightenment and its colleagues in Scotland, England, France and Prussia would engender a temper “realistic, yet hopeful, scientific but humanist, respectful but secular, trusting in institutions yet treating them as provisional, and looking to the day when all men are autonomous.”9 A temper Gay would highlight as being the authentic and characteristic temper of the Western Enlightenment as a whole. The budding notion of ‘the rights of man’ and this extension of legal and civil rights would be grounded in the value of personal autonomy, Scholar Denise Reaume notes, the recognition of which “has been part of the process of constructing the modern
9 Gay, Peter. “The Enlightenment.” A Comparative Approach to American History. Ed. C. Vann Woodward. New York: Basic Books, 1968. 34-46. Web. Lutwen 12 conception of dignity.”10 Moreover, “their extension was an important step towards a more egalitarian conception of dignity.”11 Indeed, despite no direct reference to autonomy or dignity, the American Bill of Rights and the amendments to come would imply due consideration to both of these notions, despite the latter being in a more tenuous position prior to more recent jurisprudence. The more explicit rights, centered on liberty (itself evincing shared meaning with autonomy) and equality, would also sit formidably in American constitutionalism. Perhaps these ‘shared beginnings’ help explain how both the American and the French understandings of rights would have such an influence on the modern conception of human rights, coming to fruition in 1948 with the United Nations Declaration of Human Rights. Nonetheless, each of these documents evinces a moral dimension to the law, a dimension in itself contested throughout the history of legal philosophy. Our first incursion into the philosophical approaches to law and dignity will look at the nature of law. From there we will juxtapose the dimensions of those debates with the dimensions of the American legal system, before turning to an exploration of the nature of dignity and its use in jurisprudence.
Consider this view of Voltaire: “Natural law is that indicated to men by nature...Human law must in every case be based on natural law. All over the earth the great principle of both is: Do not unto others what you would that they do not unto you.”12 While this principle is readily and widely appreciated, it does not seem like law as we know it. Rather, it reflects an interpreted reason (among multiple) for various laws. The reason for the law that prohibits murder could be interpreted as the principle presented by Voltaire, but the law could also be justified by one’s right to have control over one’s body (which would be severed by murder). Voltaire’s point has a moral dimension, while the other carries a property-like dimension. The ultimate legal debates split over vying notions of how we explain and justify the law. Much of this also has to do with the interpretation of and the role of law. All of what was intimated above informs
10 Réaume, Denise. “Dignity, Choice, and Circumstances.” Understanding Human Dignity. Ed. Christopher McCrudden. Oxford: Published for the British Academy by Oxford University Press, 2013. 539-558. Print. 11 Ibid. 12 Voltaire. “Treatise on Toleration.” Toleration and Other Essays, trans. Joseph McCabe; New York: G.P. Putnam’s Sons, 1912. Lutwen 13 constitutional jurisprudence, of which dignity takes part, and so an investigation into the dimensions of these debates is worthwhile. This moral side to the law is tied to the notion that law must do something to better peoples’ lives. Judges on the Court diverge in their understanding of the role of law, of course, and this divergence is largely grounded in what they understand as their ‘general theory of law’. It goes without saying that there is no universally accepted method of reading and employing the Constitution, as methods of determining both the purpose of and how to interpret the law have been debated for millennia, and the Constitution itself and the jurisprudence of it are rooted within these debates. At the center of this is a question of the nature of law—is it a set of rules based on social facts, or are moral facts, too, inextricably linked? Renowned legal scholar Ronald Dworkin posits that law in large part has to do with “a distinct and complex type of social institution.”13 Theory on this notion originally branched into two schools of thought: the command theory and the rule theory. Scholars Bentham,14 Austin,15 and their followers argue the command theory, which follows that law exists whenever “a population has developed the habit of obedience to the commands of a person or group not similarly in the habit of obeying the commands of others.”16 Dworkin notes that according to this view, “it is the habit of obedience to those who in fact have power, not the different motives or attitudes that may have nurtured that habit, that is decisive.”17 This theory reveals a questionable agency of the polity vis-à-vis their legal institution, and by that there would be a questionable legitimacy of both the legal institution and those enforcing it. Alternatively, H. L. A. Hart18 argues the rule theory, by which it is held that “law does not exist unless the population, or at least that part of the population that administers the law, accepts a rule that gives those who exercise power the authority to do so.”19 In
13 Dworkin, Ronald. The Philosophy of Law. London: Oxford University Press, 1977. Print. 14 Jeremy Bentham; British philosopher, jurist, and social reformer; regarded as the founder of modern utilitarianism. 15 February 1748—6 June 1832. 15 John Austin; British jurist. 3 March 1790—1 December 1859. 16 Dworkin, Ronald. The Philosophy of Law. London: Oxford University Press, 1977. Print. 17 Ibid. 18 Herbert Lionel Adolphus Hart; British legal philosopher; major figure in moral and political philosophy. Most famous work: The Concept of Law (1961). 18 July 1907—19 December 1992. 19 Dworkin, Ronald. The Philosophy of Law. London: Oxford University Press, 1977. Print. Lutwen 14 other words, “[the population] must have developed not simply a habit of deferring to power but a sense that the power is legitimate because exercised in accordance with some constitutional rule they accept.”20 This view understands law as a set of rules, with legitimate ends in and of themselves, giving it the nature of being based on social facts, lending to a positive (rather than normative) conception of the law. Herein the polity has greater agency, since they provide more cognizant consent to the rules of a legal institution rather than mere obedience toward power. As observed, legitimacy and consent are implicated differently in these understandings. The next ‘stage’ of legal debate would be between Hart’s ‘rule theory’ stemmed in legal positivism and Dworkin’s theory of legal interpretivism. Legal scholar Scott Shapiro reflects on the Hart-Dworkin debate21, observing that the question at its heart—whether the law is ultimately grounded in social facts alone, or if moral facts also determine the existence and content of the law22—is still unanswered. If grounded in social facts alone, legal positivism is a more sound approach to the law. But if, as Dworkin suggests, moral facts are inextricably linked to the law then it is most appropriate to allow greater interpretation in understanding what law is (and can be). Since dignity jurisprudence arose from the interpreting of what law ought to protect within the context of social phenomenon to which the ‘original document’ had not duly (or explicitly) considered, it might be fair to say that it is working within the framework posited by Dworkin. Scholar Jeremy Waldron corroborates this view: “[dignity] has had to be imported as judge-made doctrine,” rightly noting that, “[this] is historically contingent.”23 Moreover, as will be discussed in greater detail later in this chapter, Justice Kennedy, the modern champion of American dignity adjudication, has explicitly acknowledged dignity’s (and the law’s) inherent moral content.24 If American law was a
20 Ibid. 21 Hart is the champion of legal positivism, and Dworkin is its fiercest critique. Dworkin instead puts forth legal interpretivism, which posits that the law follows the constructive interpretation of the history of a legal system. 22 Shapiro, Scott J. “The “Hart-Dworkin” Debate: A Short Guide for the Perplexed.” University of Michigan Law School Public Law and Legal Theory Working Paper Series (2007): 1-54. Web. 23 Waldron, Jeremy J. “How Law Protects Dignity.” NYU School of Law Public Law & Legal Theory Research Paper Series Working Paper 11.83 (2011): 1-25. Web. 24 “Supreme Court Justice Anthony Kennedy visits HLS.” Harvard Law School. YouTube. 2015.
To the question posed by scholar Martha Minow of what dignity means to him, Justice Kennedy replied:
“Well, if you’re writing on an opinion under the Due Process Clause, Fifth or Fourteenth Amendment, and liberty, you can’t just repeat the word, you have to find a synonym, to explain. And it’s not just for stylistic interest, so that you’re avoiding repetition that would put the reader to sleep. It’s in order to elaborate meaning. [In] the European Convention on Human Rights the word dignity is used, and it seems to me to sum up the meaning of human individual worth, and so the word, it seems to me is helpful.”
(MM) “And there is an equality dimension there? That people have equal dignity?
“That is correct. Equal protection and liberty on the due process clause has a linkage that hasn’t been thoroughly explored.”
(MM) “But I think you are exploring it in your opinions, and that is very, very powerful.”24 25 Shapiro, Scott J. “The “Hart-Dworkin” Debate: A Short Guide for the Perplexed.” University of Michigan Law School Public Law and Legal Theory Working Paper Series (2007): 1-54. Web. 26 Ibid. 27 Fuller, Lon L. The Morality of Law. New Haven: Yale University Press, 1964. Web. Lutwen 16
intervention from the state. Self-application is an extraordinarily important feature of the way legal systems operate. They work by using, rather than short-circuiting, the agency of ordinary human individuals. They count on people’s capacities for practical understanding, for self-control, for self-monitoring and modulation of their own behavior in relation to norms that they can grasp and understand.”28 Indeed, this resonates with Hart’s notion that for law to be respected the polity ought to agree in and with the rule of the law that guides it. Much of what moves society along within its legal rules arises from this act of self-application, and as such Hart’s theory need not totally be done away with. Moreover, it is important to highlight another notion put forth by Shapiro: “A theory of law should account for the intelligibility of theoretical disagreements, not necessarily provide a resolution of them. An adequate theory, in other words, ought to show that it makes sense for participants to disagree with each other about the grounds of law.”29 The author holds that throughout this lineage of theoretical points is the vital importance of civil society in the vicissitudes of the imagining, conceptualizing, and action of law and jurisprudence. All of this has everything to do with the American legal system from its founding to its current state and its future.
However, it would appear that even the most earnest plea for change (or recognition) can fall on empty ears if it does not also hold legitimacy in the eyes of the ‘gatekeepers’ of this system. History, indeed, has shown this hierarchical relationship to be true time and again. Yet throughout American history there have been instances where the legitimacy of civil society’s concerns has been respected. Indeed, it is in these instances that the rhetoric and legal value dialectic reaches synthesis. This synthesis occurs when the arguments and lived experiences of civil society directly inform the jurisprudence and adjudication of the Court in a manner which allows the Court to bridge the difference between the ‘text’ of laws and ‘the reality on the ground’. A closer look
28 Waldron, Jeremy J. “How Law Protects Dignity.” NYU School of Law Public Law & Legal Theory Research Paper Series Working Paper 11.83 (2011): 1-25. Web. 29 Shapiro, Scott J. “The “Hart-Dworkin” Debate: A Short Guide for the Perplexed.” University of Michigan Law School Public Law and Legal Theory Working Paper Series (2007): 1-54. Web. Lutwen 17 into the notions of jurisprudence, adjudication, and the law’s assemblage of parts is deserved.
The bedrock of the American legal system is the Constitution—it is the supreme ‘law of the land’ and interpreted by the Supreme Court. The Court’s understanding of the Constitution has evolved through considerations on the nuances and implications of the text alongside the social realities before it. While the judges of the Court have been most influential in this evolution, legal scholars have added tremendously to this understanding as well.30 At play in the judicial decision-making process are various rights, principles, values, and doctrines, all of which are balanced against government and societal interests. The role of the court, then, is to adjudicate—to review with legal reasoning (in which the aforementioned elements are implicated) the evidence and argumentation in resolving a dispute and deciding a case. While the courts are tasked with upholding the rule of law, which consists of constitutional law, precedent, executive regulations and state and federal statutes, insofar as they are deemed constitutional, they can very well change the rule of law by acknowledging rights or interests that outweigh either judicial precedent or the governmental interests behind the legislation in question. Indeed, it is within judicial review that this process becomes most influential. Judicial review by the Court is the power to review the constitutionality of legislation or an act of the government. If the Court renders either unconstitutional, they are made void. Within the process of review, the Court uses a set of tests—strict scrutiny review, intermediate scrutiny review, and the rational basis review—all of which assesses the balance of the importance of the government interest, and the manner in which this interest is implemented, against the resulting infringement of individual rights. Strict scrutiny is invoked when a fundamental right has been violated. Passing this test requires that the law or act is narrowly tailored to further a ‘compelling’ government interest. Intermediate scrutiny differs from strict scrutiny in that it only requires an ‘important’ government interest, and has been invoked mostly within sex-based classification cases.31
30 Scholars are frequently cited in Court opinions and argumentation. ( e.g. Lawrence v. Texas p. 7). 31 In J.E.B. v. Alabama (1994) the Court held that questioning jurors based on their gender injures their personal dignity. Also, in United States v. Virginia (1996) the Court held unconstitutional the male-only admission policy to the Virginia Military Institute. Lutwen 18
Rational basis review, under which laws are rarely overturned, is used when government action restricts liberty, though not so far as to implicate the breaching of a fundamental right. Here a ‘legitimate’ government interest is at play, and the action need only be ‘reasonable’ in achieving this end. It is within this judicial review framework that rights are considered, adjudicated, and then appreciated by American society. Scholar Robert J. McKeever notes that judicial review branches into two doctrines—judicial activism and judicial restraint—which follow from two basic questions: 1) Should the Justices interpret the clauses of the Constitution narrowly or expansively? 2) Should the Justices show maximum deference to legislatures when evaluating the constitutionality of laws, or confidently and frequently assert their own judgment of what the Constitution permits?32 McKeever also explains what he views sits at the crux of the Court and its role in government, that is, the notion that the Court’s counter-majoritarian power, in the exercise of judicial review, to be inherently undemocratic and therefore requires special legitimation.33 This legitimation stems in constitutional interpretation. Indeed, if the judges were to gauge and utilize the truths embedded within the Constitution, a counter-majoritarian judicial exercise would be consistent with the rule of law. As demonstrated in our outline of the philosophical approaches to law, these truths are but understandings stemming from the philosophical positions of the individual judges. This legitimation dilemma is particularly relevant to dignity jurisprudence, as much of the opposition to the Court’s use of dignity runs parallel to the arguments that question the legitimacy of the Court for its use of the word.
The quintessential parts of American law are rights, which, as noted in the Stanford Encyclopedia of Philosophy, “structure the form of governments, the content of laws, and the shape of morality as it is currently perceived.” 34 ‘Fundamental’ constitutional rights include those textually explicit within the Bill of Rights as well as those unenumerated, like the right to privacy. ‘Non-fundamental’ rights include, for example, the right to welfare benefits (which hardly stand up to the test of judicial
32 McKeever, Robert J. Raw Judicial Power? The Supreme Court and American Society. Manchester and New York: Manchester University Press, 1993. Print. 33 McKeever, Robert J. Raw Judicial Power? The Supreme Court and American Society. Manchester and New York: Manchester University Press, 1993. Print. 34 Wenar, Leif. "Rights." Stanford University. Stanford University, 19 Dec. 2005. Web. Lutwen 19 scrutiny). Additionally, rights are understood in positive and negative senses (the former referring to rights of entitlement to some good or service, the latter to rights of entitlement from non-interference.)35 An example of a positive right would be the right to legal counsel, and an example of a negative right is the right against being assaulted. Rights violations are associated with two categories: substantive due process and equal protection. If a particular right is denied to everyone, the former is implicated, and if a right is denied to some but not others then it becomes an issue of equal protection. Also important to American law are the understandings of the citizens’ relation to the legal process. Substantive due process (substance based) is a claim that exists to protect individuals from majoritarian policy enactments’ that the courts deem to exceed the limits of governmental authority. For example, the holding in Lawrence v. Texas (2003) rendered a Texas statute criminalizing sodomy unconstitutional despite its majority approval in the state. Alternatively, procedural due process (process based) exists to protect individuals from policy enactments that would limit their access to their procedural rights. An example of such a right is the right to be notified of, and to participate in, hearings before the stripping of one’s social welfare benefits.36 These elements function in a manner that allows the Court to address, reflect on, and impact the lived experience of citizens under the law. Justice Kennedy summarized this process in his opinion in Obergefell: “when the rights of persons are violated, ‘the Constitution requires redress by the courts,’ notwithstanding the more general value of democratic decision-making. This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”37
35 Ibid. 36 Goldberg v. Kelly (1970) concerned this example. The Court held that welfare recipients could not have their benefits stripped without fair hearings. 37 Obergefell v. Hodges Lutwen 20
This redress and anti-majoritarian rhetoric reflects a moral function of the Court. This is reflected further in the Court’s West Virginia Board of Education v. Barnette decision, in which they indicated “the idea of the Constitution was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts."38 Indeed, principles are also important to the Court’s jurisprudence and adjudication. Common principles are those of anti-discrimination, anti-classification, anti-subordination, and more developed as of recent, the anti-humiliation principle. Scholar Owen Fiss reflects on the origins of the anti-discrimination principle here: “Indeed, when the antidiscrimination (sic) principle was adopted by the legislative branch, and made the central regulatory device of the Civil Rights Acts of I964 and I968, it was expressed in a form that satisfied the objectivist ideal. The statutes specified the criteria (such as race, sex, religion, and national origin) that could not be the basis of discrimination.”39 Part of its obligation, then, “is to treat similar persons similarly, declaring certain individual characteristics—such as color—irrelevant.” 40 The anti- classification principle holds that strict scrutiny is triggered whenever the government uses a racial classification.41 Indeed, these last two bear resemblance, and both rest on a notion of color-blindness, an element of jurisprudence that will be discussed later. The anti-subordination principle holds that strict scrutiny is only appropriate when the government continues to disadvantage historically subordinated groups.42 This principle, Balkan and Siegel note, “sits in perpetual judgment of American civil rights law, condemning its formalism, compromises, and worldly limitations, and summoning it to more socially transformative ends.”43 We will return to this principle in the following chapters, as it is closely related to dignity jurisprudence. The anti-humiliation principle is rooted in the Brown decision, in which the Court observed institutionalized humiliation:
38 West Virginia Board of Education v. Barnette 39 Fiss, Owen M. “Groups and the Equal Protection Clause.” Philosophy and Public Affairs 5.2 (1976): 107-77. Web. 40 Ibid. 41 Yoshino, Kenji. “The Anti-Humiliation Principle and Same-Sex Marriage.” The Yale Law Journal 123 (2014): 3076-3103. Web. 42 Ibid. 43 Balkan, Jack M. and Reva B. Siegel. “The American Civil Rights Tradition: Anticlassification or Antisuboridination?” University of Miami Law Review 58 (2004): 9-33. Web. Lutwen 21
“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. Impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the group.”44 This last principle, however, has not been explicitly invoked, although scholar Bruce Ackerman contends that it bears striking semblance with the use of equal dignity rhetoric in United States v. Windsor.45 All of these are powerful contributions to the Court’s decision-making process and will continue to be engaged in the scholarship on dignity jurisprudence.
As intimated earlier, the socio-legal meaning of dignity has changed over time. Philosopher Markus Stepanians has articulated three stages in the philosophical development of human dignity. The first stage was set from ancient Greece to Kant, which Stepanians notes as the philosophical-theological period.46 Contributions included those by Stoics, Cicero, Aquinas, Pico, and Kant. From there, in the mid-19th century, the idea of dignity entered the realm of politics, becoming a torch for labor movements.47 Adherents to these movements sought living conditions that were in accord with notions of human dignity.48 Indeed, at this point it appears that the global understanding of dignity moved closer to our contemporary understanding, that is, as an integral concept to the lives of ordinary people—not just those of noble social standing. Then, from the mid-1900s through the present day, dignity had entered the realm of legal systems.49 The impetus of this, Shaoping and Lin note, was in large part “based on profound reflections upon the inhuman actions of the Nazis and the political demands made by national liberation movements of medium-sized and small countries of Asia,
44 Brown v. Board of Education 45 Ackerman, Bruce A. We the People: Volume 3. Cambridge, Mass; London, England: Belknap Press, 2014. Web. 46 Stepanians, Markus (2003). "Gleiche Wuerde, gleiche Rechte". In: Ralf Stoecker ed. Menschenwuerde, Annaeherung an einen Begriff. Wien: OeBV+HPT Verlagsg. GmbH (Retrieved from Lin and Shaoping: Human Dignity as a Right) 47 Ibid. 48 Lin, Zhang and Gan Shaoping. “Human Dignity as a Right.” Frontiers of Philosophy in China 4.3 (2009): 370-84. Web. 49 Stepanians, Markus (2003). "Gleiche Wuerde, gleiche Rechte". In: Ralf Stoecker ed. Menschenwuerde, Annaeherung an einen Begriff. Wien: OeBV+HPT Verlagsg. GmbH (Retrieved from Lin and Shaoping: Human Dignity as a Right) Lutwen 22
Africa, and Latin America against Western colonialism and racialism.” 50 Such reconciliatory processes have centered dignity in legal discourse somewhat independently in various parts of the world.51 After World War II, the conceptions of human dignity and human rights were adopted, simultaneously, in The Charter of the United Nations and the Universal Declarations of Human Rights.”52 Habermas points out that, “Certainly the founding documents of the United Nations, which drew an explicit connection between human rights and human dignity, were . . . a response to the mass crimes committed under the Nazi regime and to the massacres of the Second World War.”53 Indeed, the dignity language in these documents is neither subtle nor secondary. With brevity scholars Lin and Shaoping define dignity—in a way which implicates both a positive and negative sense of the notion—as “in essence the right to keep away from insult,” or, in other words, “a moral right to be free from insult.”54 Indeed their use of insult bears further development. This understanding of insult branches into two categories—that of action and of state. “An insulting action,” they write, “ causes damage to the victim’s self or individuality, positioning him/her in the horrible state of being lorded over, wherein he/she has neither the ability to protect himself/herself nor hope of external assistance.”55 “An insulting state,” then, “can be defined as the state in which the complete loss of control of self is sparked by absolute poverty, family tragedy, the tortures of illness, mental breakdown, etc.”56 In protecting the right of one’s dignity the state would have the positive responsibility of ‘safeguarding the self’ and the negative responsibility of keeping the individual ‘[devoid] of insult.’57 They conclude: “…when dignity is violated, the relevant party is thus insulted, whereas
50 Lin, Zhang and Gan Shaoping. “Human Dignity as a Right.” Frontiers of Philosophy in China 4.3 (2009): 370-84. Web. 51 For example, the 1954 Brown v. Board decision, while not exhibiting dignity explicitly, was profoundly based on the notion of equal dignity of blacks and whites in the United States. Additionally, the post- apartheid constitution of South Africa incorporated dignity rights. 52 Lin, Zhang and Gan Shaoping. “Human Dignity as a Right.” Frontiers of Philosophy in China 4.3 (2009): 370-84. Web. 53 Habermas, Jürgen. "The Concept of Human Dignity and the Realistic Utopia of Human Rights." Philosophical Dimensions of Human Rights: Some Contemporary Views. Ed. Claudio Corradetti. Dordrecht: Springer, 2012. 464-480. Web. 54 Lin, Zhang and Gan Shaoping. “Human Dignity as a Right.” Frontiers of Philosophy in China 4.3 (2009): 370-84. Web. 55 Ibid. 56 Ibid. 57 Ibid. Lutwen 23 conversely, when the relevant party does not suffer insult, his/her dignity can be said to have been safeguarded. When everyone is entitled to keep away from insult, he/she naturally enjoys dignity.”58 The oppositional (indicated by the ‘free from’ rhetoric) nature of this definition evinces an issue of operability, however, the positive and negative elements they reflect are important to understanding both what dignity is and why it is used. One of the foremost scholars on legal dignity, Jeremy Waldron, defines dignity in a way that implicates the notion as a status while incorporating the essential elements of recognition, respect and representation: “Dignity is the status of a person predicated on the fact that she is recognized as having the ability to control and regulate her actions in accordance with her own apprehension of norms and reasons that apply to her; it assumes she is capable of giving and entitled to give an account of herself (and of the way in which she is regulating her actions and organizing her life), an account that others are to pay attention to; and it means finally that she has the wherewithal to demand that her agency and her presence among us as human being be taken seriously and accommodated in the lives of others, in others’ attitudes and actions towards her, and in social life generally.”59 Waldron speaks here to one of the most widely understood notions of dignity—that of autonomy—which dates back at least to Kant. In this regard dignity is the right to give account of oneself, leading to adequate representation, and receiving due attention of others reflects recognition. Lastly, and perhaps most importantly, he speaks to the notion of agency, which incorporates the aforementioned principles but goes further to embrace equality as well. While in jurisprudential practices each of these notions would likely be recognized and appreciated, the definition itself reflects a wholly positive or substantive understanding of dignity. Use of this definition would uphold or bring about such facets individual dignity (as they are understood within the legal process). Christopher Bracey, a scholar whose work we will explore in depth later, understands dignity in two branches, which he calls first and second-order dignity. “For
58 Ibid. 59 Waldron, Jeremy J. “How Law Protects Dignity.” NYU School of Law Public Law & Legal Theory Research Paper Series Working Paper 11.83 (2011): 1-25. Web. Lutwen 24 one to take dignity seriously,” Bracey observes, “one must be attentive to both first- and second-order dignity concerns. Holistic respect for dignity of another requires that one view others as possessing not only inherent dignity at the personal level—that is, equal humanity—but also a presumptive social worth that makes possible sincere inclusion and acceptance into one’s own community.”60 The dimensions of dignity observed above, by Waldron, Lin and Shaoping, can certainly color and spill into these branches. Moreover, noting the sincere inclusion and acceptance into one’s own community reflects the principle of first-order dignity but on the community level. This notion is important for in various societies an entire community (or group) can be subjected to a certain in- dignifying treatment.61 Indeed an understanding of dignity in these senses allows for legal action to address and validate the inherent value of both an individual and a community (or group). As we expressed in the introduction, no single understanding of dignity needs be coalesced or agreed-upon for dignity jurisprudence or dignity concern to work or be expressed. What is important is that these dimensions highlight the multi-faceted lived experience of the notion, as it sits at the crossroads of the individual, community and the state, between the auspices of inclusion and exclusion, and alongside notions of equality and liberty. Moreover, dignity can be understood heuristically as a value-adding tool to notions of respect, recognition and representation, as observed by the prominent dignity scholar Christopher McCrudden: “One important institutional function for dignity is to provide a language in which courts can indicate the weighting given to particular rights and other values in this context. When a particular right or other value is described as engaging dignity, this indicates that the court considers that considerable (even in some cases overwhelming) weight should be attributed to it.” 62 We will reflect on two perspectives, which do overlap, of dignity jurisprudence before concluding the chapter.
Rex D. Glensy’s article, The Right to Dignity, proposes four possible meanings of the invocation of dignity rights in judicial opinions: 1) by a positive rights approach
60 Bracey, Christopher A. “Dignity in Race Jurisprudence.” Journal of Constitutional Law 7:3 (2005): 669- 720. 61 This can be understood alongside the anti-subordination principle. 62 McCrudden, Christopher. “Human Dignity and Judicial Interpretation of Human Rights.” The European Journal of International Law 19.4 (2008): 655-724. Web. Lutwen 25 dignity becomes an actionable substantive legal right; 2) by a negative rights approach whereby dignity functions as a background norm; 3) by a proxy approach in which dignity is used as a heuristic for other enumerated rights; 4) by an expressive approach where dignity is referred to dialogically.63 Glensy notes that each of these possibilities are founded in a very different understanding of dignity rights.64 He concludes that courts need to coalesce around one of these possibilities so that a more secure legal foundation can be built for the development of dignity rights in the United States.65 The author agrees on this need to coalesce on a meaning, as this adds legitimacy to the Court’s use of the term, but do hold that dignity as it currently sits needs further use in order to flesh out what exactly we ‘are talking about when we talk about dignity’. Neomi Rao, in Three Concepts of Dignity in Constitutional Law, argues that the courts have different conceptions of dignity that are based on how they balance individual rights with the demands of social policy and community values.66 These understandings follow: 1) inherent dignity which is dignity in a negative sense; 2) substantive conceptions of dignity which is dignity in a positive sense; and 3) dignity as recognition which demands the acceptance of groups by the political, social, and moral community.67 Rao goes onto to explain the first, in which dignity focuses on the inherent worth of each individual, existing merely by virtue of a person’s humanity and does not depend on intelligence, morality, or social status—a notion reflected in the work of Kant, highlighting the general change in dignity’s meaning towards an anti-hierarchical notion.68 The second notion of dignity can ‘express and serve’ as the grounds for enforcing various substantive values. In this understanding, dignity demands that the government provide the basic conditions of wellbeing.69 The last notion, often associated with recognition and respect, is “rooted in a conception of the self as constituted by the broader community—a person’s identity and worth depend on his relationship to
63 Glensly, Rex D. “The Right to Dignity.” Columbia Human Rights Law Review 43 (2011): 65-142. Web. 64 Ibid. 65 Ibid. 66 Rao, Neomi. “Three Concepts of Dignity in Constitutional Law.” Notre Dame Law Review 86.1 (2011): 183-272. Web. 67 Ibid. 68 Ibid. 69 Ibid. Lutwen 26 society.”70 Accordingly, Rao writes, “respect for a person’s dignity requires recognizing and validating individuals in their particularity.”71
All of these point to morality within the law, a tricky notion in itself, as observed at the start of the chapter. Indeed, one of the most influential jurists to sit on the Court would note “For my part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether.”72 Fine, but another jurist would note: “From the very beginning of this Nation […] we have recognized that in order to achieve the good society, there must be equality, there must be participation in the governing process, and accordingly, there must be a government of laws rather than of men. Such a society will be just, for every member will be treated with equal respect and dignity.”73 Thomas Paine highlighted before either said jurists “that men mean distinct and separate things when they speak of Constitutions and of Governments, is evident; or why are those terms distinctly and separately used? A Constitution is not the act of a Government, but of a people constituting a Government; and Government without a Constitution is power without a right.”74 Indeed perhaps that piece of normative (tinged with natural law) proposition that this would be a government by and for the people with their own vision and pursuits would permit, dare we say encourage, civil society to imagine the moral dimension of their law. This view will be substantiated in the following chapters, as we explore the importance of dignity in case law, before moving towards the implications to come as we (further) center dignity in American legal discourse.
70 Ibid. 71 Ibid. 72 Holmes, Oliver Wendell Jr. “The Path of the Law.” Harvard Law Review 457 (1897). Web. 73 Marshall, Thurgood. “Remarks at the Second Circuit Judicial Conference [The Judiciary and Fundamental Human Liberties].” Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences. Ed. Mark V. Tushnet. Chicago, Ill: Lawrence Hill Books, 2001. p. 184. Print. 74 Paine, Thomas. “Of Constitutions.” Rights of Man. 1791. 294. Print. Lutwen 27
Chapter 2: The Importance of Dignity in Case Law
“The great phrases of that purpose still sound in every American heart, North and South: "All men are created equal." "Government by consent of the governed." "Give me liberty or give me death." And those are not just clever words, and those are not just empty theories. In their name Americans have fought and died for two centuries and tonight around the world they stand there as guardians of our liberty risking their lives. Those words are promised to every citizen that he shall share in the dignity of man. This dignity cannot be found in a man's possessions. It cannot be found in his power or in his position. It really rests on his right to be treated as a man equal in opportunity to all others. It says that he shall share in freedom. He shall choose his leaders, educate his children, provide for his family according to his ability and his merits as a human being.”75
-We Shall Overcome; Speech by Lyndon B. Johnson
As Robert Kennedy began running for presidency in 1968, he delivered a speech at Villanova University in Pennsylvania. A man deeply empathetic to the troubles of his time, he ran on the vision of greater dignity for all. He spoke of the poor: “I run for the presidency because I have seen proud men in the hills of Appalachia, who wish only to work in dignity, but they cannot, for the mines are closed and their jobs are gone and no one—neither industry, nor labor, nor government—has cared to help.” Astute on the nature of dignity, though, he did not stop at the obstructions to labor and material wealth: “But even if we act to erase material poverty, there is another greater task, it is to confront the poverty of satisfaction—purpose and dignity—that afflicts us all.” In a resounding conclusion he observed: “Too much and for too long, we seemed to have surrendered personal excellence and community values in the mere accumulation of material things.” Kennedy’s nod to community values reflected the importance of the communitarian aspect of dignity. Others in the vanguard of change shared his dignitary concerns. On September 19th, 1966, Martin Luther King Jr. sent this message in a telegram to labor leader Cesar Chavez: “As brothers in the fight for equality, I extend the
75 Johnson, Lyndon B. “We Shall Overcome”: President Lyndon B. Johnson’s Special Message to Congress.” History Matters: The U.S. Survey Course on the Web. 15 March 1965.
As developed in the previous chapter, the law provides certain organizing principles that allow for a clear and organized incursion into the matters that concern us, and while the answers are not always as clear as these rules that bind them, such rules do give us signposts for discussing such matters in meaningful ways. Dignity, as we will
76 King, Martin Luther Jr. “Telegram to Cesar Chavez.” Stanford University. 19 September 1966.
83 Tarling, Nicholas. “Dignity and Indignity”. Perspectives on Human Dignity: A Conversation. pg. 149. Eds. J. Malpas and N. Lickiss. Springer, 2007. 141-149. Web. Lutwen 30 worth of the human person, in the equal rights of men and women and of nations large and small…”84 The sense of reaffirmation highlights that this document sat in the shadow of conflict. The preamble of the Universal Declaration of Human Rights (UDHR) would follow, “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,”85 including the reference to the UN Preamble section noted above. Noting dignity as inherent suggests the default equality of respect and recognition deserved by all individuals, reflecting the notions put forth by the scholars mentioned at the end of last chapter. Article 1 of the UDHR would read, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”86 This notion of brotherhood lends itself to the ideal of a community in which dignity as been fully realized. The consideration of reason and conscience highlight the importance of civil society imagining and self-applying such law. Article 22 reads, “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”87 The use of realization here highlights the aspect of autonomy inherent to dignity and also demonstrates a substantive sense of what dignity deserves. Lastly, Article 23 of the UDHR would read: “(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
84 Charter of the United Nations: Preamble.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.”88 The labor roots of dignity resurface in this last article. Additionally, the 3rd precept’s use of dignity diverges from the sense of dignity as inherent, and like Article 22 uses it in a way that demands substantive support to see its realization through. The UNDHR exhausts the notion of dignity to its full potential in the law. Two other documents, influenced by these former, would utilize a sense of inherent dignity. The Preamble of the International Covenant on Economic, Social and Cultural Rights89 would borrow from the UDHR: “Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that these rights derive from the inherent dignity of the human person…”90 Again, inherent dignity is deeply connected with both liberty and equality. Additionally, The Preamble of the Charter on Fundamental Rights of the European Union would read: “Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.”91 Then, significantly, Article 1 reads, “Human Dignity is inviolable. It must be respected and protected.”92 Thus, this new international conception of the universality of the right to dignity would mark ‘a new age’ if you will, following from Enlightenment ideals and the rights discourse generated from them. Scholar Louis Henkin summarizes this influence here: “The Universal Declaration, having linked in its first preambular clause "the inherent dignity" and "the equal and inalienable rights of all members of the human family," helped establish
88 Universal Declaration of Human Rights. http://www.un.org/en/documents/udhr/#atop 89 [Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976, in accordance with article 27] 90 International Covenant on Economic, Social and Cultural Rights: Preamble.
"human dignity" as the touchstone of rights for national constitutional cultures.”93 Henkin discusses further: “The purpose of international concern with human rights is to make national rights effective under national laws and through national institution,” also noting that while this declaration is not binding, it “calls on states to recognize the rights of their inhabitants under their national laws, and to take measures to realize human rights through national institutions within their own societies.”94 Indeed, Nobel Prize-winning Nigerian writer Wole Soyinka would introduce a Yoruba translation of the 1994 UDHR, stating, “All that this document requires therefore is simply that it be rendered in all the accessible languages of all societies.”95 Moreover, at least 161 national constitutions currently contain provisions invoking human dignity.96 Among nations most engaged in dignity jurisprudence is Germany. Article 1 of the Grundgesetz (Basic Law) reads, “Human dignity is inviolable. To respect it and protect it is the duty of all state power. The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.”97 These basic rights are bound to the legislature, the executive, and the judiciary as directly applicable by law.98 Scholar Michael Rosen has observed that Article I of the Grundgesetz has been invoked by the Bundesverfassungsgericht (Constitutional Court) in many different contexts: for instance, to reject the idea of life sentences with no possibility of release (the death penalty itself was never part of the law in the Federal Republic), to place limits on state surveillance of private residences, to block the proposed compulsory gathering of census data, to uphold bans on peep shows, as well as to strike down a law permitting the shooting down of hijacked airplanes to
93 Henkin, Louis. “The Universal Declaration and the U.S. Constitution.” PS: Political Science and Politics 31.3 (1998): 512-15. Web. 94 Henkin, Louis. “The Universal Declaration and the U.S. Constitution.” PS: Political Science and Politics 31.3 (1998): 512-15. Web. 95 Slaughter, Joseph R. Human Rights, Inc: The World Novel, Narrative Form, and International Law. New York: Fordham University Press, 2007. Web. 96 Search rendered online at Constitute: The World’s Constitutions to Read, Search, and Compare:
99 Rosen, Michael. Dignity: Its History and Meaning. Cambridge, Mass: Harvard University Press, 2012. Web. 100 Ibid. 101 Constitution of the Republic of South Africa, 1996.
The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.”106 Much of this distills to the fact that for most of America’s history there has been no explicit tradition of dignity jurisprudence, thus making a cogent understanding of the notion largely absent. Yet two points should be made in light of this. Firstly of course, there are many elements of the law, as we know it today, which had not been fleshed out to their logical ends. Consider this observation by Henkin: “As originally promulgated, the U.S. Bill of Rights suffered "genetic" defects. It did not include freedom from slavery. The word "equal" was not in it. By implication, all rights guaranteed by the U.S. Bill of Rights were enjoyed by all the inhabitants of the United States equally, but there was no provision requiring the equal protection of the laws, or prohibiting discrimination in law on grounds of race, ethnic origin, religion, gender, social status, political opinion, or other irrelevant and invidious consideration” Indeed it would take judicial and legislative action, running parallel to the forces of civil society, to remedy these ‘defects’. Secondly, despite the absence of a tradition and cogent understanding of dignity, the Court would begin to engage its use quite formidably at the same time that UDHR would. McCrudden notes that the concept of dignity was introduced to the United States Supreme Court majority jurisprudence in the immediate post-War period by the judges he suggests were those most influenced by labor thinking: Justice Frankfurter and Murphy (the latter being most influenced by Catholic thinking as well). In the majority opinion of McNabb v. United States (1943)—the case which established that the promptness of arraignment was essential and that confessions gained during unnecessary delay would be omitted as evidence—Justice Frankfurter wrote: “democratic society, in which respect for the dignity of all men is central, naturally guards against the misuse of the law enforcement process.” This notion here, which rests on the concept of dignity, would become precedent for Malloy v. Hogan (1964)107 and Miranda v. Arizona (1966)108, all of
106 Henry, Leslie M. “The Jurisprudence of Dignity.” University of Pennsylvania Law Review 160 (2011): 169-233. Web. 107 Would substantiate the right against self-incrimination, mandating that the state establish guilt by evidence that is free and independent of a suspect's or witnesses' statements. Lutwen 35 which adds dignity as a qualitative aspect to criminal-process. In turn this exhibits equal respect for those suspected of illegal action. Just after McNabb dignity was used in a wartime dissenting opinion. In his Korematsu dissent, Justice Murphy wrote on the exclusion of ‘all persons of Japanese ancestry, both alien and non-alien’ from the Pacific coast by request of the military goes over the “brink of constitutional power…and falls into the ugly abyss of racism.”109 The justification for this military action, Murphy notes, “is sought…mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence.”110 To infer from the ‘few intimations that certain individuals aided the enemy’ that the entire group of Japanese Americans ‘could not be trusted or remain loyal to the United States’ is a fallacious set of logic that “has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy.”111 Moreover, Murphy writes: “To give constitutional sanction to that inference in this case, however well intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.”112 Murphy would again use the notion of dignity in a dissent, in Yamashita v. Styer two years after Korematsu. This case, ultimately rejected, was brought on habeas corpus by Yamashita, a General of the Japanese army, who had been tried in an American military court. In his dissent, Justice Murphy writes "If we are ever to develop an orderly international community based upon a recognition of human dignity, it is of the utmost importance that the necessary punishment of those guilty of atrocities be as free as possible from the ugly stigma of revenge and vindictiveness."113 Murphy ends with:
108 Also substantiating this right, requiring law enforcement officials to advise a suspect interrogated in custody of his rights to remain silent and to obtain an attorney. 109 Korematsu v. United States 110 Ibid. 111 Ibid. 112 Ibid. 113 Yamashita v. Styer Lutwen 36
“While peoples in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in reckless disregard of the rights of others."114 The Warren Court (1954-1969) substantially contributed to American dignity jurisprudence. Justice Brennan carried the torch in this regard, and despite dignity being used mostly in minority opinions, crucial precedent was set in its use in majority ones. Alongside this advancement, scholar Rebecca Zietlow argues that the Warren Court brought an expansion in the "rights of belonging," which she characterizes as "rights that promote an inclusive vision of who belongs to the national community and facilitate equal membership in that community."115 Zietlow notes that both critics and supporters of the Warren Court attribute to it this shift, whether as a matter of imposing its counter- majoritarian will or as protecting the rights of minorities.116 Indeed, the author argues that this reflects the communitarian aspect of equal dignity articulated in Chapter 1, and rooted itself in the Brown117 decision. The Court would accelerate this process in Heart of Atlanta Motel v. U.S.118 in 1964 where they ruled that Congress could force private businesses to abide by the 1964 Civil Rights Act. Indeed this understanding of the commerce clause may have been pushed in part by the moral concerns of the times. Justice Stewart would use dignity explicitly in Rosenblatt v. Baer in 1966 to uphold reputational interests: “The right of a man to the protection of his own reputation…reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.”119 Lastly, in Gideon v. Wainwright (1963) the Court established that the right to counsel was a fundamental right embraced in the Fourteenth Amendment and “implicit in the concept of ordered liberty.” This decision made courts across the nation accountable to provide legal counsel to indigent defendants.
114 Ibid. 115 Zietlow, Rebecca E. “Rights of Belonging for Women.” Indiana Journal of Law & Social Equality, 1.1 (2013) 64-99. Web. 116 Ibid. 117 Brown v. Board of Education 118 Heart of Atlanta Motel v. United States 119 Rosenblatt v. Baer Lutwen 37
The Burger Court (1969-1986) has been characterized as exhibiting a state of hibernation vis-à-vis dignity jurisprudence,120 but there are notable advancements to recognize. In Goldberg v. Kelly (1970) the court held that if the state were to strip the benefits of welfare recipients without due notice and hearing, the act would be considered unconstitutional. The Court wrote, “Important governmental interests are promoted by affording recipients a pre- termination evidentiary hearing. From its founding, the Nation's basic commitment has been to foster the dignity and wellbeing of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.”121 In Paul v. Davis (1976) a defendant held that “active shoplifter” posters that exhibited his portrait before he was found guilty of the charge violated his right to privacy and liberty under the Due Process Clause of the Fourteenth Amendment. While the majority court rejected his argument, Justice Brennan dissented along with Marshall, White, and Stevens. In their dissent, Brennan writes: “I have always thought that one of this Court's most important roles is to provide a formidable bulwark against governmental violation of the constitutional safeguards securing in our free society the legitimate expectations of every person to innate human dignity and sense of worth. It is a regrettable abdication of that role and a saddening denigration of our majestic Bill of Rights when the Court tolerates arbitrary and capricious official conduct branding an individual as a criminal without compliance with constitutional procedures designed to ensure the fair and impartial ascertainment of criminal culpability. Today's decision must surely be a short-lived aberration.” Indeed, here they highlight a nuance in the defendant’s experience in the legal process that the majority justices do not recognize. Lastly, in Furman v. Georgia (1972), the Court recognized that because of the disproportionate application of the death penalty on minorities the states in question would have to reform its procedure.122 The author holds that while not explicitly used, the anti-subordination principle resembles the reasoning
120 Henry, Leslie M. “The Jurisprudence of Dignity.” University of Pennsylvania Law Review 160 (2011): 169-233. Web. 121 Goldberg v. Kelly 122 Furman v. Georgia Lutwen 38 employed in the decision. Furthermore, the holding advanced the equal dignity of the minority groups in question. The Rehnquist Court (1986-2005) has also been described as being in hibernation in regards to dignity, but again, there are some noteworthy holdings. In Cruzan v. Director (1990)123 the parents of the defendant—who had been in a vegetative coma for many years—requested that the Court overrule Missouri’s decision to forbid the removal of her implanted gastronomy tube (in effect, assisted suicide) since there was no clear way for Cruzan to show her willingness for the action. It was the dissenting opinion that took the defendant’s position, writing: “Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.” Indeed, this view expands the legal potentiality of dignity. In J.E.B. v. Alabama the Court held that questioning jurors based on their sex injures personal dignity, and thereby, is unconstitutional. The opinion follows: “Striking individual jurors on the assumption that they hold particular views simply because of their gender is "practically a brand upon them, affixed by the law, an assertion of their inferiority." It denigrates the dignity of the excluded juror, and, for a woman, re-invokes a history of exclusion from political participation.”124 Here again we hear echoes of the anti-subordination principle. In Rice v. Cayetano (2000) the Court reviewed a Hawaiian constitutional rule that limited the right to vote for the nine trustees of a state agency along racial lines. The Court held that “The ancestral inquiry in this case implicates the same grave concerns as a classification specifying a particular race by name, for it demeans a person's dignity and worth to be judged by ancestry instead of by his or her own merit and essential qualities.”125 The anti- classification principle is clearly present in this reasoning. Lastly, in 2003 the Court saw Lawrence v. Texas, one of the most influential cases in recent decades. The case, to which we previously alluded, considered a Texas statute that criminalized sodomy.
123 Cruzan v. Director 124 J.E.B. v. Alabama 125 Rice v. Cayetano Lutwen 39
Justice Kennedy, in writing the majority opinion that made the statute unconstitutional, observes: “Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged.” Justice Kennedy reasons through many critical issues, including anti-discrimination, the importance of the Court’s responsibility to use its power to enforce the realization of constitutional principles ‘on the ground,’ and the centered nature of dignity in this case.
Marking a substantial turn from the Warren Court’s minority opinion dignity jurisprudence, the Roberts Court (2005-) has used dignity more often in majority opinions. Additionally, as Leslie Meltzer Henry has noted, both Justice Scalia and Ginsberg have been equally prone to use the word, and by 2010, the Roberts Court had invoked dignity in thirty-four cases.126 In United States v. Windsor (2013) the Court reviewed the Defense of Marriage Act (a 1996 federal statute defining marriage as between a man and a woman), ultimately ruling the federal statute invalid, “for no legitimate purpose overcomes the purpose and effect to disparage and to injure those
126 Henry, Leslie M. “The Jurisprudence of Dignity.” University of Pennsylvania Law Review 160 (2011): 169-233. Web. Lutwen 40 whom the State, by its marriage laws, sought to protect in personhood and dignity.”127 In 2015 the Court would hear Obergefell v. Hodges, which posed the question of whether states had the right to deny recognition of same-sex marriage. As in Windsor, Justice Kennedy wrote the majority opinion in which he employed dignity rhetoric. His final paragraph follows: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”128 The author contends that this usage of equal dignity should continue to be understood in the area of civil rights, particularly in investigating the weaknesses of the contemporary criminal justice system (which will be explored in the next chapter). But first we conclude with a deeper look at this most recent utterance of dignity in Obergefell. The Court held in Obergefell that the marriage bans violated both the Due Process Clause and the Equal Protection Clause129, emphasizing “the intertwined nature of liberty and equality,” as noted by scholar Kenji Yoshino. Yoshino notes that from Lawrence and Obergefell is a vision of liberty that he calls “antisubordination liberty” rooted in substantive due process, guided by the late Judge Harlan’s understanding of liberty reflected here:
127 United States v. Windsor 128 Obergefell v. Hodges 129 Kennedy in the majority opinion: “The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. This interrelation of the two principles furthers our understanding of what freedom is and must become.” Lutwen 41
“(T)he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints.”130 This language, “freedom from all substantial arbitrary impositions and purposeless restraints,” now informs and guides what the Court understands to be “what freedom is and must become.” The result of Obergefell, Scholar Laurence Tribe observed, is the conception of equality and liberty as the strands of a double helix, bound by the notion of equal dignity. He wrote: “Equal dignity, a concept with a robust doctrinal pedigree, does not simply look back to purposeful past subordination, but rather lays the groundwork for an ongoing constitutional dialogue about fundamental rights and the meaning of equality.”131 In the following chapter we utilize these conceptions of dignity in exploring the role of centering dignity in legal discourse at the level of civil society.
130 Poe v. Ullman Dissenting Opinion 131 Tribe, Laurence H. “Equal Dignity: Speaking Its Name.” Harvard Law Review Forum 129:16 (2015): 16-32. Web. Lutwen 42
Chapter 3: Implications and Effects of Dignity Concern and Jurisprudence
“More than forty years later, civil rights advocacy is stuck in a model of advocacy King was determined to leave behind. Rather than challenging the basic structure of society and doing the hard work of movement building— the work to which King was still committed at the end of his life— we have been tempted too often by the opportunity for people of color to be included within the political and economic structure as-is, even if it means alienating those who are necessary allies. We have allowed ourselves to be willfully blind to the emergence of a new caste system— a system of social excommunication that has denied millions of African Americans basic human dignity. The significance of this cannot be overstated, for the failure to acknowledge the humanity and dignity of all persons has lurked at the root of every racial caste system.”132
-Michelle Alexander; The New Jim Crow
“History and tradition guide and discipline this inquiry but do not set its outer boundaries.”133
-Justice Kennedy in Obergefell v. Hodges
Two legal principles have impeded progress on justice for the marginalized in American society. The first is the Lochner-understanding of liberty. The second is the anti-classification principle that has lent itself to the ‘color-blindness’ approach the Court has used in deciding fundamental cases on race. This first understanding—as argued by scholars Tribe and Yoshino—has been substantially jeopardized by the anti- subordination and equal dignity principles used in Obergefell. This new understanding, we intend to demonstrate, should inform whether the color-blindness approach under the anti-classification principle meets the demands of its vision of “what freedom is and must become.” As the last chapter demonstrated how dignity has been centered in the Court’s discourse, we will now turn to areas of the legal system that evince in-dignity, as well as the role that legislators and civil society are and can continue to take in centering dignity
132 Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New Press. 2011. Print. 133 Obergefell v. Hodges Lutwen 43 in the discourse over these issues. But first we would like to juxtapose two views on ‘access to justice’ in American society. In the Obergefell holding Justice Kennedy wrote: “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.”134 Justice Thurgood Marshall before him corroborated this view: “Each person should have the sense that through the courts the avenues of government are open to him, that he can state his viewpoint and be fairly heard by a neutral decisionmaker. There has been a growing recognition that it is vitally important that people have a sense of participation in the decisionmaking process. It is not enough that the decision be correct; someone must have listened to the claimant and by that listening acknowledged the importance of the individual. Our country prides itself on the fact that every person gets his “day in court,” and that ideal must never be forgotten.”135 Justice Marshall noted fundamental aspects of dignity—despite not using the word— including the importance of being heard (representation and speaking for oneself) and that he or she be treated by a neutral observer rather than be treated in a disparaging or arbitrary manner. Justice Kennedy highlights the aspect of dignity by which one can assert oneself as an end-in-itself, to borrow from Kant. Yet, for all the promise in this rhetoric—indeed rhetoric that is supported by the Constitution—reality paints a different picture. Consider this observation by scholar Susanne Baer (who also sits as a Justice on the Federal Constitutional Court of Germany):
134 Obergefell v. Hodges 135 Marshall, Thurgood. “Remarks at the Second Circuit Judicial Conference [The Judiciary and Fundamental Human Liberties].” Thurgood Marshall: His Speeches, Writings, Arguments, Opinions, and Reminiscences. Ed. Mark V. Tushnet. Chicago, Ill: Lawrence Hill Books, 2001. p. 184. Print. Lutwen 44
“[Substantive equality cases] do not turn up in courts […] because discrimination is so successful. Or to put it a little differently, the more successful discrimination is as systemic inequality the less courts cases [sic] you see. Because in fact if discrimination is really successful in excluding you from the mainstream of society, you don’t go to court. You certainly don’t take those five years to come to us.”136 Justices do have something in mind when they speak of dignity explicitly or by virtue of its parts. It is no question whether the Court has—on balance—advanced dignity concerns over the course of its history. What this juxtaposition provides, however, is that despite pronouncements filled with promise and progress, the reality on the ground will lag behind. Indeed the old critique of rights informs this notion: that rights in and of themselves do little without a praxis which makes them realized, and that in the shadow of the promise of rights sits what some view as rights being ends in themselves, signaling and encompassing change in themselves. This last notion does inform the understanding some hold that America is now a post-racial society, which substantiates the views of some justices that the Court need no longer to be active in the realm of race. The result is that civil society—litigators, scholars, activists, artists—can represent reality such that they aid and inform the Court in bridging the difference between the ‘text’ of rights and the lived experience of them. As the Court centers dignity in their discourse, the Court legitimizes and imbues power and relevance into the notion. This new ‘weight and nature’ of dignity, in effect, is carried into its usage by civil society. In turn, the manner in which civil society uses the notion, both to reflect the individual and group experience in their relation to institutions of the legal system, further informs the socio-legal understanding of dignity. As intimated, this process is dialectical.
When we talk about ‘groups’ in American law anxiety rises and eyes roll, for such notions now antagonize the principle of anti-classification, that is, the principle of not
136 “Berstein Lecture 2013-2014 | Justice Susanne Baer, Adjudicating Inequalities.” Duke Law School. 30 September 2013.
137 Fiss, Owen M. “Groups and the Equal Protection Clause.” Philosophy and Public Affairs 5.2 (1976): 107-77. Web. 138 Ibid. 139 Ibid. 140 Ibid. 141 Crenshaw, Kimberlé Williams. “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law.” Harvard Law Review 101.7 (1988): 1331-1387. Web. Lutwen 46
Blumrosen, “it [is] clear that a ‘color-blind’ society built upon the subordination of persons of one color [is] a society which [cannot] correct that subordination because it [can] never recognize it.”142 This recognizing act is one that the author contends to (and continue to) be spurred and engaged by civil society today. Our modern-day muckrakers have taken this to task. Consider the recent work The New Jim Crow, by Michelle Alexander. She details the vast inequalities in the American legal system, from (in)access to legal counsel to the disparate racial makeup of the incarcerated. Moreover, she highlights how inequalities are a product of the ‘War on Drugs’, but also follow from a continuum of racial subordination threaded throughout American history. Consider also the work of journalist Ta-Nehisi Coates, writing for The Atlantic, who has been a primary messenger in the world of journalism detailing racial disparities in the U.S. today.143 No less, consider the role of rappers, whose work and influence have heralded an entire new academic study—Hip-Hop studies—, a discipline engaging rap songs as historical and sociological record. Indeed, American rappers have materialized a form of civic action that has become a tool for people the world-over in reflecting the lived experience of those marginalized within their respective societies. The connection between these civil society actors and legislators are in no short measure either, as both legislative and executive actions—spurred by the work—highlight the issues they address. Dignity, indeed, as always sat at the crux of the dialogue between civil society and legislators on racial justice, as Scholar Christopher Bracey illustrates with eloquence here: “The idea of dignity has been deployed consistently and consciously for more than a century to expose the absurdity of racial injustice in America—from Frederick Douglass's noble assertion that the Negro is "self-evidently a man, and therefore entitled to all the rights and privileges which belong to human nature"' to Martin Luther King, Jr.'s deep meditation on the motivations of civil rights proponents to Harlem Renaissance poet Claude McKay's fatalistic declaration that
142 Blumrosen, Alfred. “Twenty Years of Title VII Law: An Overview 26 (April 18, 1985) (unpublished manuscript on file in the Harvard Law Library). Retrieved from Ibid. 143 Coates wrote a widely known piece titled The Case for Reparations:
"If we must die, let us nobly die... then even the monsters we defy [s]hall be constrained to honor us though dead!" to the late rapper Tupac Shakur's lyrical condemnation of the crisis of poverty and social isolation that characterizes life in forgotten segments of the black community. These dramatic instances of agonistic assertiveness represent far more than individualized political or cultural expression—they are moments constitutive of a common, transhistorical call for the acknowledgment and affirmation of African American dignity.”144 Thus, this centering of dignity is no accident, and it is a praxis made important and relevant by the ‘actors’ who have employed the notion. But if President Johnson’s invocation of dignity in his speech introducing the Civil Rights Act did not critically materialize, as we will illustrate, what must be done?
Two fundamental shifts occurred in America’s legal fabric since the Civil Rights Era. Firstly, and most pervasively influential, was sparked by Nixon’s War on Drugs— that initiative which led to a hyper-criminalization of particularly poor and minority communities. The second followed the 9/11 terrorist attacks, and could be understood as a hyper-securitization of various aspects of American life. While both shifts were marked by distinct legal changes, they have now corroborated in way that has uniquely obstructed civil liberties—reconfiguring the nation’s understanding of the individual and community as they relate to law and justice, as the enforcement of the latter becomes hyper- militarized and capricious.145 Yet as history has demonstrated time and again, a nation cannot quarantine its ‘unwanted’ while reveling in the ‘good conscience and will’ of its Constitution.
The vast majority of those affected by these changes live and have lived in a state of precarity—that concept introduced by sociologist Pierre Bourdieu that reflects a status
144 Bracey, Christopher A. “Dignity in Race Jurisprudence.” Journal of Constitutional Law 7:3 (2005): 669- 720. 145 Investigative reporter Radley Balko has expounded on this change in Rise of the Warrior Cop: The Militarization of America’s Police Forces. Lutwen 48 of material and sociocultural poverty or exclusion. This status stems from and is perpetuated by what Baer intimated above—a systemic inequality which is itself the problem and prevents those enduring it the opportunity to address themselves in Court. Baer highlights how the Lochner era understanding of liberty—by which liberty is treated “in a rather atomistic, property-like fashion, trumping other rights […] prevents us from taking a systemic look at problems of ‘precarization’.”146 There sits an underlying concept, which follows that as long as everyone enjoys liberty, equality will follow. Indeed, by the intimations of Tribe and Yoshino it appears that without substantive equality liberty cannot be universally enjoyed. People living in precarity—dubbed the precariat—live the indignity that is the poverty of exclusion. The American precariat has largely been relegated to the nation’s inner cities, defined by the Initiative for a Competitive Inner City here: “[the inner city] is a geographic area that has a poverty rate of 20% or higher or a poverty rate of 1.5x higher than the metropolitan statistical area (MSA) and an unemployment rate of 1.5 the MSA and/or a median household income of 50% or less than the MSA. (Excludes student populations which skew poverty measures.”147 American inner cities, as defined, have a 32% poverty rate (compared to 13% nation-wide)—or 8 million people in absolute terms.148 The later figure, placed alongside the fact that inner cities comprise less than 1% of total U.S. land area, attests to the concentration of inner city poverty. In the early 20th century, ghettos were temporary residences populated by immigrants as they assimilated, or in other words, ‘ghettos of opportunity’. In contrast, the modern inner city arose as ‘permanent residences created by exclusion and racism’, inhabited largely by African Americans.149 After World War one, African Americans moved to the Midwest and Northeast, mainly from the rural Southeast, into
146 She notes further “In times of growing awareness of systemic inequalities and exclusion, one challenge is the recurring use of a simple and symmetrical equality standard to destroy fine measures of affirmative action or accommodation, measures that are derived from, and are much better understood as, more elaborate schemes of fundamental rights, meant to ensure respect for the individual and to avoid discriminatory exercises in groupism.” 147 Ferguson, Lena. "In America's War on Poverty, Inner Cities Remain The Front Line." Initiative for a Competitive Inner City. 23 Sept. 2014. Web. 148 From an informational graphic created by the Initiative For A Competitive Inner City. http://icic.org/key-battlegrounds-war-poverty/ 149 Encyclopedia of American Studies, ed. Simon J. Bronner (Baltimore: Johns Hopkins University Press, 2014), s.v. "Inner Cities and Ghettos" (by William L. Yancey), http://eas-ref.press.jhu.edu/view?aid=298 (accessed December 4, 2014). Lutwen 49 neighborhoods that would become largely homogenous. The housing boom, which occurred just after the Second World War, would not however be enjoyed by African Americans. As post-war American industry changed, African Americans would be further disenfranchised: manufacturing jobs were in decline, and the new managerial, professional, and service economy would expand. This led to the bifurcated occupational structure that we have today, whereby on one side there are high-income technical, professional, and managerial jobs requiring high education, and low-income service jobs for those with less on the other. From 1950-1960, suburbs grew at a rate 40 times faster than central city areas.150 The central city poverty rates from 1990-1997 would rise from 14-19%, and have risen since.151 Demographically, Latinos and African Americans would see the highest rise in poverty. Today, only about 50% of African American, Hispanic, and low-income students graduate from high school on time, and of those who enroll in college, only around half earn a diploma within six years. For low-income students, the college completion rate is 25% lower than their peers.152 Inner-city public schools receive less federal aid, have poorer facilities and a sub-par curriculum, while carrying extremely low graduation rates compared to other public schools.153 Scholars have theorized over the causes of and the reasons why inner city residents continue to face disadvantages, as well as the effects of certain policies. A black middle class did emerge, scholar William J. Wilson notes, in part as a result of affirmative action. He writes: “The middle class’s ability to escape the ghetto has not only contributed to the higher rates of poverty experienced by ghetto residents but has also resulted in the loss of role models and the loss of social capital needed for job information.”154 He notes further, “This occurred within the context of urban economies marked by the rapid decline in manufacturing, the bifurcation of occupations and wages,
150 Lee, James K.-J. Urban Triage: Race and the Fictions of Multiculturalism. Minneapolis: University of Minnesota Press, 2004. Print. 151 Encyclopedia of American Studies, ed. Simon J. Bronner (Baltimore: Johns Hopkins University Press, 2014), s.v. "Inner Cities and Ghettos" (by William L. Yancey), http://eas-ref.press.jhu.edu/view?aid=298 (accessed December 4, 2014). 152"Spotlight On Poverty and Opportunity." Education and Poverty and Opportunity: The Source for News, Ideas, and Action. Web. http://www.spotlightonpoverty.org/education_and_poverty.aspx 153 Ibid. 154 Encyclopedia of American Studies, ed. Simon J. Bronner (Baltimore: Johns Hopkins University Press, 2015), s.v. "Inner Cities and Ghettos" (by William L. Yancey),
155 Ibid. 156 Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New Press. 2011. Print. 157 Ibid. 158 Ibid. 159 Ibid. 160 Ibid. 161 Ibid. See also, note 90 in The New Jim Crow: Mark Peffley, Jon Hurwitz, and Paul Sniderman, “Racial Stereotypes and Whites’ Political Views of Blacks in the Context of Welfare and Crime,” American Journal of Political Science 41, no. 1 (1997): 30-60; Martin Gilens, “Racial Attitudes and Opposition to Welfare,” Journal of Politics 57, no. 4 (1995): 994– 1014; Kathlyn Taylor Gaubatz, Crime in the Public Mind (Ann Arbor: University of Michigan Press, 1995); and John Hurwitz and Mark Peffley “Public Lutwen 51 interplay between attitudes and substantive policy is critical and implicates dignity as Bracey underscores here: “If whites are to affirm the dignity of African Americans, a necessary pre-condition is that whites examine critically and self- consciously not only the effects of racial subordination on blacks, but the myriad ways in which the culture of subordination has distorted and disfigured majority society in general and white identities in particular. A central problem with focusing exclusively on formal equality is that the discourse may very well indulge the prospect of inclusion for black Americans in an ever-expanding circle of people deserving respect, but leaves the center of that circle tragically unexamined. Equality extended without reference to dignity leaves unanswered the question of what allows white Americans to see black Americans as their presumptive inferiors in the first place.”162 The effects of such policies are of no short order: while drug use rates are about the same between whites and blacks, African Americans will be incarcerated at a rate of at least 13x higher, and in some states 50x.163 Of the total amount of drug offenders in prison, 75% are black or Latino, and in some states it is over 90%.164 Even before incarceration there are issues, however, for 95% of drug cases are settled by plea-bargains instead of trial.165 These are the facets of what Michelle Alexander characterizes as ‘The New Jim Crow’, a new caste system, facilitated by the empty and legalistic colorblind public consensus that prevails in America today, and instigated by the mass incarceration that served as backlash to the Civil Rights Movement. Alexander observes, “the popular narrative that emphasizes the death of slavery and Jim Crow and celebrates the nation’s
Perceptions of Race and Crime: The Role of Racial Stereotypes,” American Journal of Political Science 41, no. 2 (1997): 375– 401. 162 Bracey, Christopher A. “Dignity in Race Jurisprudence.” Journal of Constitutional Law 7:3 (2005): 669- 720. 163 Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New Press. 2011. Print. 164 Ibid. 165 Ibid. Lutwen 52
“triumph over race” with the election of Barack Obama is dangerously misguided.”166 Indeed, that refrain by Nina Simone may be uncannily relevant: “Old Jim Crow/I thought I had you beat/Now I see you walking and talking up and down my street […] Old Jim Crow/You’ve been around too long/Got to work together/Until you’re dead and gone.”167
The second shift evoked hyper-securitization. It is widely held that there are legitimate concerns over the imposition of legislative measures for national security that limit full expression of fundamental liberties. This is not a new dilemma, however, for in wartime the US government has enacted one policy or another that has infringed civil liberties. Yet, as always, this collective imperative for security begs the question of to what degree the dignity of the individual is respected and balanced with the collective security from harm. In Justice and Security in the 21st Century, Hudson and Ugelvik investigate “how the balance is struck between achieving as security as possible, by eliminating risks, and still upholding as much freedom as possible for all.” They focus on who is presented as posing such risks, be they immigrants, aliens, or strangers in general. Since security strategies use categories of risk to impose restrictions on targeted sections of populations, they understand risk and security as connected topics of concern (Hudson, Ugelvik; Zedner 2007). Security, they define, is “the goal when tactics of risk management in policies and practices are deployed.” They rightly observe that the citizens of modern democratic societies probably enjoy the least exposure to catastrophic risks of any known society. It is fear, however, that lends to a will of insulation with only those with familiar routines and with known or predictable people like themselves. “The challenge is to balance security for some groups against justice for others—preferably the same to ‘all’, but this is not seen as possible to the full extent.”168 Thus, we see the diffusion of tactics, propelled by fear, that restrict liberty (and dignity) of such targeted individuals, evoking an offense to Bracey’s understanding of first-order (individual) dignity. Consider data comprised by Scholars Mussarat Khan and Kathyrn Ecklund illustrating attitudes toward Muslim Americans after 9/11:
166 Ibid. 167 Nina Simone. “Old Jim Crow.” Nina Simone in Concert. Philips, 1964. Web. 168 Hudson, Barbara and Synnøve Ugelvik. Justice and Security in the 21st Century. Abingdon, Oxon; New York: Routledge. 2012. Print. Lutwen 53
“Following September 11, 2001, the Federal Bureau of Investigation (FBI) reported a 1,700 percent increase of hate crimes against Muslim Americans between 2000 to 2001 (Anderson, 2002). During the process of adjusting to the aftermath of September 11, Muslim Americans faced an upsurge in negative stereotypes expressed by the larger society (American-Arab Anti-Discrimination Committee, 2003; Cassel, 2006) and Muslim immigrants, more than any other immigrant group, were met with negative attitudes (Council of American Islamic Relations, 2003; Saroglou & Galand, 2004). Since then, increased racial and religious animosity has left Arabs, Middle Easterners, Muslims, and those who bear stereotyped physical resemblance to members of these groups, fearful of potential hatred and hostility from persons of other cultures (Abu-Ras & Suarez, 2009; Baqi-Aziz, 2001; Kira et al., 2010; Rippy & Newman, 2006).”169 Such suspicion and animosity impede considerations of civil liberties in the realm of the state’s treatment of this selected class. Moreover, the free-reign policing of Muslim communities under this state hyper-securitization spills over into further justifying the policing of the suspected ‘criminal class(es)’. Individual dignity harms (which are connected to group harms) are entrenched in three policing mechanisms: gang injunction systems, profiling strategies such as the stop- and-frisk policy in New York City, and the feeble litmus test for officers to engage their weapon during conflict, as well as their virtual immutability to being punished for unjust killings. A gang injunction system is a court-issued civil order prohibiting persons affiliated with gang activity (not always directly—as we will explain) from doing otherwise legal actions. The association with gang activity can be marked by certain tattoos, attire, past convictions, or photos of persons with past convictions. The otherwise legal actions include ubiquitous and harmless activities such as riding the bus, or standing on a porch. The legal legitimacy for such a policy comes by the public nuisance doctrine,
169 Ecklund, Kathryn and Mussarat Khan. “Attitudes Toward Muslim Americans Post-9/11.” Journal of Muslim Mental Health 7:1 (2012). Web. Lutwen 54 whereby if certain (gang) activities pose a potential harm to the public, an extralegal mechanism can be used to prevent such harm. Similarly in its preemptive approach are various ‘stop-and-frisk’ policies. These policies are predicated on a ‘reasonable suspicion’ doctrine. While both gang-injunction and stop-and-frisk policies are professedly color-blind, they disproportionately target people of color. Thus in reality, they function as mechanisms that allow officers to implicate racial stereotypes into their work, in turn perpetuating subordination and group dignity harms. Lastly, it is now well established that the ratio between the number of unjust killings by cops and the rate at which they are found guilty exorbitantly favor the cops.170 From these fissures the gap of public trust in both the law and its enforcement have substantially widened, and as the author will conclude, need be remedied through a centering of dignity in the discourse on these issues.
A ‘centering of dignity’ in a way that attends to the unique position of the American precariat is one that takes place on many levels. Activist groups—like Black Lives Matter—have formidably brought criminal justice reform into the 2016 presidential race. Indeed, when we talk about dignity we are talking about how black lives do matter. Yet, this statement means little if it is not against the backdrop of the shifting nature of the legal system—and its disproportionate and relentless effects on poor communities of color. A centering of dignity into the discourse on criminal justice must be put against the backdrop of the historical subordination illustrated above. It is that way, indeed, that an anti-subordination equal dignity doctrine can be informed by and inform racial justice. Community leaders—be they legislators, mayors or police officers—can center dignity into their impact on and relation to the communities they serve. The substantive change they can bring can begin with the simple notions of ‘apology’, ‘recognition’, and self-correcting mechanisms. Consider the Los Angeles Police Department, in Watts, who in their free time are coaching football to kids from housing projects. 171 This act demonstrates a willingness to form trust between themselves as law enforcement, and the
170 Friedersdorf, Conor. “The Number of Cops Indicted for Murder Strikes Upward.” The Atlantic 19 Aug. 2015. Web. 171 Banks, Sandy. “Young players on the Watts Bears are part of a larger team effort.” Los Angeles Times 16 Sept. 2013. Web. Lutwen 55 youth that they serve. Or consider the San Francisco Police Department’s initiation of a anti-bias training system, through which, it is aimed, that their officers can be neutral enforcers of the law.172 This reflects that they recognize racial bias in their conduct, and are moving towards eliminating it. Legislators have a role in centering dignity as well. In the last few years the California legislature has reduced the penalty of crack-cocaine position to equal that of cocaine position—an issue long known to have disproportionately affected poor communities of color. 173 The same legislature has reinstated the voting rights of low-level felons.174 Both issues were brought to light by civil society actors, and the remedying of the issues reflect the willingness on the part of legislators to recognize the indignity of the statues. Additionally, the Virginia Governor announced that he would reverse a statute that stripped felons of their voting rights—a statue he explicitly noted as being part of the racial apparatus carrying over from slavery and Jim Crow.175 In 2013 when it was revealed that Chicago PD had operated a virtual Guantanamo-like interrogation facility, Chicago mayor Rahm Emanuel issued a public apology.176 In 2015 after the shooting of Laquan McDonald, Emanuel expressed that the first step in remedying the fissures of his community that allowed for McDonald’s shooting would be to say: “I’m sorry.”177 The simple gesture—while doing nothing substantive in itself—reflects accountability, recognition of the problem, and an endearing step towards centering dignity in Chicago’s legal system. Lastly, on the federal level, the proposal by Senators Cory Booker (D) and Rand Paul (R) of the ‘Redeem Act’—legislation that reflects a page out of Michelle Alexander’s book—reflects how the centering of dignity can be a product of bi-partisan activity.178 Indeed, it is upon the work
172 Fuller, Thomas. “San Francisco Police Chief Releases Officers’ Racist Texts.” New York Times 29 April 2016. Web. 173 McGreevy, Patrick. “Calif. Senate votes to reduce penalties for sale of crack cocaine.” Los Angeles Times 28 May 2014. Web. 174Schena, Susan C. “Voting Rights to be Restored For Low-Level Offenders in CA.” Lawyers’ Committee for Civil Rights of the San Francisco Bay Area.
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Conclusion
We began with the question of what we talk about when we talk about dignity. Indeed, as intimated throughout the paper, the act of talking about it (and using it) facilitates the search for it. As this procedure continues, a crystalized conception of dignity may arise—yet for now we have varied subjective understandings of the notion, themselves revealing overlapping or shared meanings. The notion’s constitutive elements diffuse across society: from the legal considerations over capital punishment, abortion, and same-sex marriage to social considerations through notions of recognition, respect, and apology. Yet dignity is seated even deeper as it functions as a rhetorical signifier uttered by persons in crisis. There it is visceral, present, and unique. Perhaps whatever is signified is among the understandings discussed throughout this work. Yet, it need not be for it to be relevant and to function in the rhetoric and legal value dialectic. Indeed, though such lived experiences may deter from the rules, categories, or definitions that seek to synthesize them, they are not disregarded, for even an unclear utterance of the notion adds to its shared experienced, if only for that individual. Moreover, the notion is neither ‘bound to fatal indeterminacy’ nor need be reduced to ‘nonsense upon stilts’, as it is clear that philosophers, scholars, and members of civil society value and progressively work with the notion, while the Court has progressively and formidably employed it. So, what of it? This discussion is critical to the United States for the nation’s creative manufacturing of subordinating tactics has yet to cease. Indeed they have become more insidious for they are no longer under a clear heading (e.g. slavery, segregation). ‘Centering dignity’ is a praxis that can occur at any level of society, but it has particular power and scope when done by the Court. If impact litigators can utilize the anti-subordination equal dignity principle established in Obergefell to substantiate arguments in race cases, for example, the implications could be huge for racial equality. Indeed, ‘centering dignity’ matters because the Court recognizes dignity and the legal system bends toward indignity too often. Having gone in search of what dignity means only to find myriad explanations, we will now take our turn in defining the notion to conclude this work.
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Dignity is a status of living without a mask over one’s unique personhood. This mask can come in various forms, such as: a designation (e.g. ‘illegal alien’), a state of under (or no) representation, a state of under (or no) recognition, a sufficient lack of material security, and in its most total form, being interpellated by the state (whether in word, deed, or non-action) as disposable. In essence, the mask is a debilitative and humiliating force—likened to a ‘scarlet letter’—which impedes the full expression of one’s self. Most notably, this mask is imposed from the exterior, which, in other words, means the individual cannot be said (or understood) to deserve indignity, but rather the person experiences indignity by the apparatus of the state. To illustrate our definition we will take a closer look at designation. The designation of ‘illegal alien’ is a totaling conceptualization of a person. It condenses the individual to a single status, which, in another regard is an impossible one at that. The totaling conceptualization functions as a mask because the individual experiences life through a double-consciousness: he or she is at once his or her self and a person conscious of their interpellation by the state as illegal, a mechanism which diffuses into the micro-aggressions of daily experience. The turn from ‘illegal alien’ to ‘undocumented person’ reflects a ‘centering of dignity’ in praxis—whether or not its initiators explicitly evoked the notion of dignity. ‘Undocumented person’ functions on two dignifying levels. Firstly, the construction does not doubly compound as ‘illegal alien’ does but rather it intimates that “of the many things this person may or may not be, undocumented is one of them.” Secondly, ‘illegal alien’ reduces the individual as expressed above, while ‘undocumented person’ highlights a characteristic while maintaining the dignifying extension inherent in the word ‘person’. The notions of personhood, person, personality, and self are interchangeable in this conceptualization. One’s unique personhood is that which reflects the integrity of its constitutive parts; it is a unique ‘end in itself’ as Kant expressed. The full exercise of this personality is impeded by the ‘mask(s)’, and hence both the mask itself and the function of it are dignity harms. The expression of personhood is the ability to think one’s own thoughts, speak in one’s own way, and have their actions uniquely follow. Full expression occurs when there is no impediment. Impediments include fear of retaliation, acts of discrimination, or non-rehabilitative forms of punishment (solitary confinement). Lutwen 59
Rehabilitation is part of a set of remedying tools the state can use to remedy indignity. Others in this set, as discussed at the end of Chapter 3, include apology, trust building, demonstrated self-accountability, and recognition. Such tools can begin to bridge the difference between the text of the law (which, for example, clearly provides for adequate counsel to the indignant), and the reality of lived experience (in which such counsel is criminally inadequate). Moreover, these parts themselves are extensions of dignity: when the state apologizes, for example, it recognizes (and to a degree restores) the dignity of those it harmed. As presented in this form, a ‘centering of dignity’ within and across the American legal system by both civil society and judicial bodies can advance justice and dignity for those subordinated for their race, class, sexuality and gender because the nature of dignity (as defined above) slips into vantage points from which one can challenge the underlying assumptions that created and sustain subordinated status.
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