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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 Lutwen 2 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 Lutwen 5 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. Lutwen 6 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: <http://www.businessinsider.com/ap-california-student-says-airline-removed-him-for-arabic-2016-4> Lutwen 7 dignity. Moreover, an articulated and universally agreed-upon socio-legal definition of dignity does not exist. So, in light of this, secondly his unique utterance of the notion adds social meaning to it—the context of the utterance reflects the ‘living’ (and ‘lived’) aspect of the notion. In reconciling this paradoxical conceptualization the author purports that there is an active relationship between the way civil society uses and informs the notion of dignity and the manner in which it is used (and informed) in courts, whose pronouncement of the notion then transfers the nature of its expression within society into the law. Consider the following example. Civil rights era picket signs were marked with phrases such as “End segregated rules in public schools,” and “Equality now!” Despite the backdrop of the Reconstruction amendments, the nature and context of the rhetoric used on the signs imbued lived experience and nuance to such notions, indicating that such rights may have been in word but certainly not in deed. This lived experience brought attention to the difference between the ostensible and the ostensive: a difference that would manifest in a broader conception of equality within coming legislation and rulings. Thus, rhetoric informs law, and law in turn strengthens rhetoric. Rhetoric in judicial opinions can strengthen the notions used within civil society and in future jurisprudence. This appears to work in a Hegelian dialectical fashion. The author will call this the dialectic of rhetoric and legal value. ‘Exposing difference’, as those picket signs did, works to expedite the process by which courts and legislators give attention to the nuance of lived experience, which can crystalize (progressively, not absolutely) in legal text. This occurs for two reasons: it unveils or highlights the experience (or difference between text and reality), and, it is reflected in coordination with protest or demand which itself destabilizes the current socio-legal status of the notion. Indeed, this reflects the promise of civil society, of representing the ‘people’ in this nation ‘by and for the people’. The author contends that there is legitimacy and authority in both the public’s perception and conception of the workings and nuances of the legal system, a view reflected in the notion of ‘evolving standards of decency’, a phrase iterated in the Trop v. Dulles decision (1958), and utilized Lutwen 8 ever since.2 In other words, the courts appreciate the social consensus on matters in their adjudication. Thus, civil society3 animates the dimensions of legal concepts—as dignity— which in turn informs the position of the word or notion within the legal process. This ‘animation’, the author proposes, occurs in Wittgensteinian fashion. That is, its “meaning is compounded out of cases of [the] word’s use…and what characterizes those cases is often the speech situation, not the presence of something being referred to.”4 Thus, while various scholars do propose fixed (positivist) understandings of the notion of dignity— understandings we will review later—the author believes that a more flexible understanding that includes varied meanings is more appropriate,5 for the socio-legal grounding of the concept is still developing. Scholar Leslie M. Henry has advocated this approach, noting that “Rather than seeking exact definitions with clear and rigid boundaries, [Wittgenstein] implores us to conceptualize words by exploring the “overlapping and crisscrossing” meanings they have in practice. To conceptualize dignity, we therefore must observe how the word is employed in our discourse.”6 Litigators, who do animate civil society, play a role in conceptualizing dignity as well. In light of the ideas expressed above, scholar Ronald Dworkin would highlight that “When philosophers of language developed more sophisticated theories of meaning, legal philosophers became more wary of definitions and said, instead, that they were describing the “use” of legal concepts, by which they meant, in our vocabulary, the circumstances in which propositions of law are regarded by all competent lawyers as true or as false.”7 In other words, a shift of weight occurs from fixed, inherent meaning to contextual and circumstantial meaning. Moreover, legal philosophers and scholars play a 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.

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