« Emily Calhoun's Losing Twice | Main | Boobies and ta-tas and racks (oh, my) »

Wednesday, December 21, 2011

The Empty Idea of Dignity?

While I'm commending other writing, let me also point to Leslie Meltzer Henry's recently published piece, The Jurisprudence of Dignity, which Danielle Keats Citron recently plugged on CoOp.  Here's the abstract:

Few words play a more central role in modern constitutional law without appearing in the Constitution than “dignity.” The term appears in more than nine hundred Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and functions are commonly presupposed but rarely articulated. The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.

This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity and then proposing a typology of dignity based on an analysis of how the term is used in those opinions. The study reveals three important findings. First, the Court’s reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in contrast to its past use, dignity is now as likely to be invoked by the more conservative Justices on the Court as by their more liberal counterparts. Finally, the study demonstrates that dignity is not one concept, as other scholars have theorized, but rather five related concepts.

The typology refers to these conceptions of dignity as institutional status as dignityequality as dignity, liberty as dignity,personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court’s use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, that arise from shifting conceptions of dignity.

It's an important issue--not just, or even primarily, in the United States, but elsewhere in constitutional law: many courts, including the Canadian Supreme Court, have relied heavily on the concept of dignity in recent years.  Henry deals with it very thoroughly and well.  

I do wonder, after having read Henry's piece (although too quickly),

whether our ultimate conclusion shouldn't be that "dignity" is basically an empty concept (and yes, she cites Peter Westen's classic piece on the empty idea of equality) -- not in the sense that it's wrong or bad, but in the sense that it does not do a lot of work and instead stands in for other concepts.  Just look at the first sentence of the last paragraph of the abstract.  In each of these cases, it seems to me, "dignity" per se is not what's doing the work; rather, it's a placeholder for a variety of other substantive concepts.  Henry's piece is typological, not critical, so I hardly blame her if she doesn't emphasize that point; even if dignity is a term that really refers to other substantive values, it's useful to know what those substantive values are.  I have found the Canadian Supreme Court's opinions relying on human dignity quite weak and unpersuasive, precisely because the Court so often invokes dignity as if that term settles the question rather than just raising new ones.  And one might say about dignity something like what I said in my last post, about constitutional losers: to say that dignity is a constitutional value or concern is not to say that it must be an overriding or dispositive one.  Sometimes, the best way to dignify the dignity of others is to disagree with them bluntly and clearly, if respectfully and empathetically.  

Nonetheless, I commend Henry's piece -- a nice bit of holiday reading!  (I haven't read it, but given what I've read of him in the past, I don't doubt that George Kateb's recent book, Human Dignity, is also well worth reading for those interested in the concept of dignity.)  


Posted by Paul Horwitz on December 21, 2011 at 10:26 AM in Paul Horwitz | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The Empty Idea of Dignity?:


I imagine that "dignity" would rather be "empty" than "stupid." =-) Here's Steven Pinker's essay, "The Stupidity of Dignity," in which he describes the idea as the "latest, most dangerous" ploy of conservative bioethics. http://richarddawkins.net/articles/2567-the-stupidity-of-dignity

I also recall Mary Ann Glendon writing, in her book about the Universal Declaration, about how "dignity" was seized upon by the drafters as an idea that everyone was willing to identify as, and declare as being, foundational, notwithstanding their admitted inability to agree on what it is and means.

Look Paul . . . no point-of-view-implying question marks! =-)

Posted by: Rick Garnett | Dec 22, 2011 12:59:28 PM

The comments to this entry are closed.