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Sunday, March 30, 2014

Thoughts on Ackerman on Dignity

Bruce Ackerman has a lovely op-ed in the Times today titled "Dignity is a Constitutional Principle." He writes, anent the recent same-sex marriage cases and future ones, that "the [Supreme Court] should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution." Relating things to his general We the People project of the last couple of decades--and congratulations to Ackerman for the recent publication of the third book in that project, We the People, Volume 3: The Civil Rights Revolution--he argues that the contemporary Court should look back not just to its earlier decisions but to the congressional debate over civil rights legislation in the 60s, in which various figures "articulat[ed] fundamental principles that Americans should consider in defining the terms of constitutional equality." He concludes:

This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States? . . . . As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”

Beautifully written, to be sure. Yet, even if we concede that dignity is a constitutional principle, it leaves me with some questions. 1) Assuming for purposes of argument that dignity is a constitutional principle, is it a freestanding principle? (I don't take Ackerman to be arguing that in this op-ed.) 2) Assuming that dignity is not a freestanding principle but one that helps courts limn "the terms of constitutional equality" or of other constitutional provisions, does that say anything about how we should use it? Given its sponginess and, at best, only semi-textual quality, couldn't the recommended interpretive rule here be that courts should use dignity as a constitutional principle as sparingly and conservatively as possible? 3) Must dignity as a constitutional principle be subject to judicial application at all? Couldn't it be a meaningful but nonjusticiable constitutional principle--one that courts might afford some judicial margin of appreciation when used by legislatures but not treat as a principle that is independently enforceable by courts? 4) How well and clearly did (or do) dignity's champions actually "articulat[e]" the "fundamental principles" of dignity as a constitutional concept? (See, for instance, this paper by Neomi Rao.) 5) Does Ackerman intend what he says about "undocumented immigrants" to have any judicial purchase, or is he arguing only that it ought to guide We the People as citizens and representatives in our political decisions? He might be right about the latter suggestion without that implying anything about the former suggestion. We might agree that "pervasive humiliation in sphere after sphere of social life" is a constitutionally inflected issue that demands legislative redress, without believing that the courts are well-suited or even entitled to remedy it through reference to dignity as a constitutional principle, freestanding or otherwise--that, for example, the denial of drivers' licenses to "illegal aliens" is an indignity but not a judicially enforceable violation of the Constitution.

Read the whole thing, as they say, and decide for yourself.      





Posted by Paul Horwitz on March 30, 2014 at 10:12 AM in Paul Horwitz | Permalink


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Joe: "The reference to dignity of states brings to mind the fact that other justices also uses sentimental sounding terms in the federalism area. "

Because 'dignity of the states' means 'power of the people currently controlling the state government to f--- people over, to maintain and extend their power.

Posted by: Barry | Apr 2, 2014 8:47:20 AM

A few comments. First, I think it's tolerably well-settled that laws that inequitably impose indignities on some discrete class of persons are vulnerable on equal protection grounds, and that such claims are justiciable. Brown and Loving relied, in part, on dignitary or stigmatic harms, and Shaw v. Reno, though hardly a canonical or much-liked case, held that aggressively race-conscious redistricting was unconstitutional because - at least this was the Court's theory of standing - it stigmatized voters by assuming too much about racial bloc voting.

That said, I don't think that takes us as far as Ackerman seems to, for at least two reasons. First, whose sense of dignity? Justice Thomas has written powerfully about the indignities affirmative action imposes on those it seeks to benefit, and he's hardly alone in seeing things that way, but many members of the same groups disagree, and some might even find a ban of affirmative action offensive. Ackerman thinks it's self-evident that undocumented immigrants are humiliated by being denied driver's licenses, and I imagine many undocumented immigrants find it humiliating. But I wouldn't be surprised if many undocumented immigrants don't find it humiliating at all, or think it's only to be expected. That may be wrong, but how would we know if it were? What if it's right? Is that fatal to a claim premised on indignity, or might it suffice that many members of a class feel a law humiliates them? Perhaps it's okay for the courts to decide what laws are commonsensically or objectively humiliating, regardless of what the group in question actually thinks? I don't think courts have the resources to answer these questions well, particularly the empirical questions about whether some law really offends a class, and perhaps for that reason cases that rely on stigmatic injuries tend to be heavily criticized; look at Shaw, or the portion of Brown that relied on social science. On the other hand, I think the political process is pretty good at, over time, identifying which laws minority groups find offensive. So perhaps there is an argument there that dignitary inequities shouldn't be justiciable.

Second, recognizing dignity as a principle that helps limn equal protection jurisprudence doesn't decide a single case; it just forces the government to justify certain laws (which it probably already had to justify under some other theory). Prison is probably the greatest indignity the government imposes on anyone, but most of us take it for granted that the government can impose that kind of unequal indignity on criminals. Obviously much could be said by the government about the supposed necessity of the indignities it imposes on undocumented immigrants. You're still left with a balancing problem. Moreover, usually a law that imposes indignities on a class will do so by withholding some tangible benefit from that class, so query what noting an additional dignitary harm caused by that law adds when equal protection should apply in the same way to the deprivation of the benefit. Perhaps that's rather narrow and doctrinal, but it's not immediately obvious to me how recognizing that depriving undocumented immigrants of driver's licenses works a dignitary harm as well as a very serious economic one affects the constitutionality of the deprivation. In theory at least, strict scrutiny isn't a sliding scale that ratchets up the greater the injury a group suffers.

Posted by: Asher Steinberg | Mar 31, 2014 5:55:51 PM

Some people, including those sympathetic about the result, have been a tad snide about Kennedy's use of "dignity," including in a case like Windsor. The reference to dignity of states brings to mind the fact that other justices also uses sentimental sounding terms in the federalism area. With Kennedy et. al., one takes the bitter with the sweet. But, I can see someone consistently arguing that "dignity" is best used when dealing with human equality as compared to some of the applications in federalism cases.

Posted by: Joe | Mar 31, 2014 9:53:37 AM

Justice Kennedy's opinions for the Court have also relied on dignity as a basis for federalism principles, on the thinking that the federal government must respect the dignity of the states. Does Ackerman approve of this use of dignity, as well?

Posted by: Orin Kerr | Mar 30, 2014 1:40:46 PM

I have seen some discussion on the importance of "dignity" in jurisprudence and here Justice Kennedy has shown (ironically?) a bit of Justice Brennan. It comes up, e.g., when the 8A is at issue. To be, it is a sort of overarching principle that guides us here. The concern for specifics etc. is useful. Anyway, to be honest, I don't recall seeing the word "anent" ("regarding) before. Live and learn.

Posted by: Joe | Mar 30, 2014 11:33:30 AM

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