American Dignity Jurisprudence in Comparative Constitutional Context

AMERICAN DIGNITY JURISPRUDENCE IN COMPARATIVE CONSTITUTIONAL CONTEXT

CONNOR MAXWELL EWINGDEPARTMENT OF GOVERNMENT

UNIVERSITY OF TEXAS AT AUSTIN

EWING DRAFT—SPRING 2015

I. INTRODUCTION

In the past several years alone, the concept of human dignity has been claimed as the foundation

of human rights law and dismissed as a “stupid,” even dangerous notion. For better or worse, 1 2

controversy over dignity is anything but new. Whereas Immanuel Kant used “dignity” to refer to

the intrinsic worth of human beings, Arthur Schopenhauer derided it as “the shibboleth of all the

perplexed and empty-headed moralists.” And while Catholic and Protestant thinkers have 3

associated human dignity with creation in God’s image, Karl Marx thought the term “a refuge 4

from history in morality.” What distinguishes modern assessments of dignity, however, is a body 5

of jurisprudence, some of it over six decades old, grappling with the meaning and requirements

of the concept human dignity. From its first appearance in the German Grundgesetz (Basic Law),

to the Universal Declaration on Human Rights, to the 145 national constitutions that include at

least one mention—dignity is now an established legal principle with a growing jurisprudential

pedigree, even if controversy continues apace.

See, e.g., Matthias Mahlman, “Human Dignity and Autonomy in Modern Constitutional Orders,” in The Oxford 1

Handbook of Comparative Constitutional Law, Michel Rosenfeld and András Sajó (eds.) (Oxford University Press, 2012).

See Steven Pinker, “The Stupidity of Dignity,” The New Republic, 28 May 2008; and Samuel Moyn, “Dignity’s 2

Due,” The Nation, 4 Nov. 2013.

Arthur Schopenhauer, The Basis of Morality (trans. and intro. by A.B. Bullock, 2005), Part II, Critique of Kant’s 3

Basis of Ethics, cited in Christopher McCrudden, “Human Dignity and Judicial Interpretation of Human Rights,” The European Journal of International Law, Vol. 19, no. 4 (2008), 661 [hereinafter McCrudden, “Human Dignity”]. See also Michael Rosen, Dignity: Its History and Meaning (Harvard University Press, 2012), ch. 1 [hereinafter Rosen, Dignity].

See, e.g., the 1995 encyclical of the Catholic Church, “Evangelium Vitae,” or Jürgen Moltmann, On Human 4

Dignity: Political Theology and Ethics (SCM Press, 2012), referenced in Rosen, Dignity, id.

Karl Marx, “Moralising Criticism and Critical Morality, a Contribution to German Cultural History Contra Karl 5

Heinzen,” Deutsche-Brüsseler-Zeitung Nos 86, 87, 90, 92, and 94, 28 and 31 Oct., 11, 18, and 25 Nov. 1847. As cited in McCrudden, “Human Dignity,” 661.

��2


Though the claim of American exceptionalism is much controverted and frequently met

with opposition, it is perhaps appropriate in connection with the topic of constitutional dignity:

The U.S. Constitution’s lack of a dignity provision marks it as a clear exception to the general

pattern in world constitutions. However, this is not to say that dignity is wholly absent from

American constitutionalism. As Matthias Mahlman notes, “In one sense the entire edifice of U.S.

constitutional law is built on a vision of human dignity, as reflected in popular sovereignty,

representative government and entrenched individual rights.” Moreover, despite its absence 6

from the constitutional text, dignity nonetheless appears often in modern American constitutional

law, playing since 1940 “a significant, if not doctrinally, systematically clarified role.” 7

It is in this connection that recent developments in American dignity jurisprudence must

be evaluated. In its decision in Windsor v. United States, striking down Section 3 of the Defense

of Marriage Act (DOMA), the Supreme Court found that the provision’s refusal to recognize

same-sex marriages constituted “an interference with the equal dignity of same-sex marriages, a

dignity conferred by the States in the exercise of their sovereign power.” Writing for the 8

majority, Justice Anthony Kennedy invoked dignity or one of its cognates ten times, compared to

just six instances of “equality” and five of “liberty.” But more to the point, Kennedy’s usage

marked a clear departure from the Court’s previous dignity jurisprudence. Whereas earlier cases

(most notable Bowers, Casey, and Lawrence) had cited dignity as an inherent human value that

serves as the justification for an inviolable sphere of individual action and choice, dignity in

Id. at 1, 381.6

Ibid. See, e.g., Furman v. Georgia 408 U.S. 238 (1972); Planned Parenthood of Southeastern Pennsylvania v. Casey 7

505 U.S. 833 (1992); Lawrence v. Texas 539 U.S. 558 (2003).

570 U.S., slip op. at 21.8

��3


Windsor is a function of the socio-legal situation of one’s peers and permits of both modification

and bestowal. The Windsor decision at once complicates and expands the role of dignity in

American constitutional law.9

The goal of this Essay is to clarify the meaning of dignity in American constitutional law

after United States v. Windsor by situating it in comparative constitutional context. Doing so

requires first providing an account of that jurisprudence, which is itself an ancillary objective of

this inquiry. Thus, the Essay proceeds in three main sections. In Section II I provide a necessarily

detailed account of the development of American dignity jurisprudence from Bowers v. Hardwick

to United States v. Windsor. I turn in Section III to Germany and South Africa, and I attempt to

identify the comparative constitutional context of dignity jurisprudence by providing a brief

overview of relevant cases in these two countries. In Section IV I bring together the three

countries in an effort primarily to clarify the use of dignity in Windsor, but also to further

understand its use in German and South African constitutional jurisprudence. I end with a brief

Conclusion that summarizes the arguments and findings of the Essay.

II. AMERICA DIGNITY JURISPRUDENCE FROM BOWERS TO WINDSOR

For a constitutional system lacking an explicit dignity provision the United States nonetheless

has a rich history of dignity jurisprudence, the origins of which Christopher McCrudden locates

in the early twentieth century opinions of Justices Felix Frankfurter and Frank Murphy. 10

Whereas both jurists’ understandings were “influenced by labour thinking,” the latter’s was also

For example, several lower court decisions subsequent to Windsor have made a point of citing the Court’s 9

arguments about dignity. See, e.g., Kitchen v. Herbert —F.Supp.2d—, 2013 WL 6697874 (D. Utah).

McCrudden, “Human Dignity,” 684. See, generally, Jordan J. Paust, “Human Dignity as a Constitutional Right: A 10

Jurisprudentially Based Inquiry into Criteria and Content,” 27 Howard Law Journal 145 (1984).

��4


shaped by Catholic notions. The Catholic pedigree of dignity jurisprudence in American

constitutional law was carried through the second half of the twentieth century by William

Brennan, whose reliance on dignitary reasoning gained him the reputation as “the justice most

associated with the concept of dignity.” By the close of the century, dignity had served as an 11

interpretive tool in individual rights cases ranging from the First and Eighth Amendments to 12 13

Due Process and privacy rights. Furthermore, as Daly notes, recent uses of dignity in 14 15

constitutional law have occurred not in the context of individual rights but of the autonomy of

the states, a usage which itself partakes of a jurisprudential tradition that long predates the 16

origins cited by McCrudden. 17

In view of this history, it is necessary to stress that the subject of this inquiry—the

departure in dignity jurisprudence marked by United States v. Windsor—focuses on just one

storyline in a larger narrative. But it is, as I argue below, a crucially important storyline, one that

has the potential to influence the development of the larger narrative as it continues to unfold.

Though the search for an adequate starting point could lead us back to the very first mention of

McCrudden, 684. See, e.g., Raoul Berger, “Justice Brennan, ‘Human Dignity’ and Constitutional Interpretation,” 11

in Michael A. Meyer and William A. Parent (eds.), The Constitution of Rights: Human Dignity and American Values (Cornell University Press, 1992).

For an in-depth examination, see Steven J. Heyman, Free Speech and Human Dignity (Yale University Press, 12

2008).

Trop v. Dulles, 356 U.S. 86 (1958) and Furman v. Georgia 408 U.S. 238 (1972).13

Rochin v. California, 342 U.S. 165 (1952). 14

Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). 15

Erin Daly, Dignity Rights: Courts, Constitutions, and the Worth of the Human Person (University of Pennsylvania 16

Press, 2013).

According to the Legal Language Explorer, a searchable database of all federal court opinions since 1791, the first 17

occurrence of dignity in a Supreme Court decision came in the opinions of Justices Blair, Wilson, and Jay in the 1793 case Chisholm v. Georgia 2 U.S. 419. Interestingly, there dignity is used in reference both to individuals and to states, though predominantly in reference to the latter.

��5


dignity in American constitutional law, it will suffice for present purposes to begin with Justice

Stevens’ dissent in Bowers v. Hardwick, the 1986 case in which the Supreme Court upheld a

Georgia law that criminalized sodomy. Though the law ostensibly applied to homosexuals and

heterosexuals alike, the majority found that the Constitution did not “confer[] a fundamental

right upon homosexuals to engage in sodomy.” In his dissenting opinion, Stevens posed a stark 18

challenge to this framing, casting the question presented by the case as concerning not a

particular right of homosexuals but the liberty interests protected by the Due Process Clause of

the 14th Amendment, which interests the Court had previously determined included “the

individual interest in privacy.” But what was more important for Stevens was the “even more 19

fundamental concern” that underpinned the Court’s privacy decisions. Citing his opinion nine

years earlier in the Seventh Circuit case Fitzgerald v. Porter Memorial Hospital, he explained,

Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for the recognition and protection of these rights in appropriate cases. 20

Thus, for Stevens, dignity was the value accorded to particular kinds of individual choice,

namely those concerning matters of conscience and personal intimacy. Moreover, the Court’s 21

privacy jurisprudence was itself grounded in a respect for and protection of that dignity. To

Stevens and the two other justices who joined his dissent—which, far from incidentally, included

William Brennan—it was clear that the Georgia law was an invasion of constitutionally protected

privacy and, therefore, a violation of individual dignity.

478 U.S. at 190.18

Id. at 217. 19

523 F. 2d at 720 (1975) (emphasis added).20

On this point Stevens cited the Court’s decisions in Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. 21

Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); and Carey v. Population Services International, 413 U.S. 678 (1977).

��6


But Stevens’ argument didn’t carry the day. Sixteen years later, however, when Lawrence

v. Texas came before the Court, his argument and its emphasis on dignity did command a

majority. At issue in Lawrence was a Texas law similar to Georgia’s anti-sodomy statue, the only

difference being that, notwithstanding the Bowers Court’s portrayal of the Georgia law, Texas’

law was sex-specific, singling out same- but not opposite-sex sodomy. The 5-member majority

sharply criticized the holding in Bowers, going as far as declaring, “Bowers was not correct when

it was decided, and it is not correct today.” Comparing the laws at issue in both cases, Kennedy 22

argued that, “The statutes do seek to control a personal relationship that, whether or not entitled

to formal recognition in the law, is within the liberty of persons to choose without being

punished as criminals.” Because it is not the Court’s role to “define the meaning of the 23

relationship or to set its boundaries…adults may choose to enter upon this relationship in the

confines of their homes and their own private lives and still retain their dignity as free persons.” 24

Whereas in Bowers dignity played a small, though nonetheless important, role in the

dissenters’ reasoning, in Lawrence it was thrust not only into the majority opinion but also into a

more significant role. This enhanced significance was in part the result of Planned Parenthood of

Southeastern Pennsylvania County v. Casey, a case decided in the interval between Bowers and

Lawrence. Reflecting on Casey, Kennedy wrote that that case had confirmed the special

protection accorded by American law and tradition to intimate decisions concerning the family

and child-rearing, including a woman’s decision to have an abortion. Quoting directly from what

539 U.S. at 578 (2003). Kennedy’s caustic rebuke echoed the widespread criticism that the Court’s Bower’s 22

decision received, almost immediately following its announcement. See, e.g., Frank Michelman, “Law’s Republic,” 97 Yale Law Journal 1493 (1987); Anne Goldstein, “History, Homosexuality, and Political Values: The Hidden Determinants of Bowers v. Hardwick,” 97 Yale Law Journal 1073 (1988); and William N. Eskridge, Jr., “Hardwick and Historiography,” 1999 Illinois Law Review 631.

539 U.S. at 567 (2003)23

Ibid (emphasis added).24

��7


is perhaps the best known, and most frequently derided, passage from Casey, Kennedy 25

continued,

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right the define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Beyond affirming the notion of dignity put forth by Stevens in his Bowers dissent, Lawrence

underscored the connection between dignity and the rights of privacy protected by the Court’s

Due Process jurisprudence. Constitutional liberty, as far as the Fifth and Fourteenth Amendments

were concerned, entails the individual’s ability to freely make the decisions that define his or her

existence. And it is the individual’s dignity that renders unjustified any attempt to control those

decisions. Understood in this light, the liberty interests required by individual dignity are

protected under the umbrella of constitutional privacy. In Kennedy’s extension of Stevens’

Bowers argument, individual dignity requires a sphere of inviolability, which the Court had

established and developed through its privacy jurisprudence over the previous three decades.

A decade after Lawrence was decided the Court agreed to hear United States v. Windsor,

an Equal Protection challenge to the Defense of Marriage Act (DOMA). The respondent, Edith

Windsor of New York, was seeking a refund for the estate taxes she paid after the death of her

spouse, Thea Spyer. Though the two had been engaged since 1967 they were not wed until 2007,

which required that they travel to Toronto, Ontario. Although same-sex marriage was not then 26

legal in New York, upon returning home their marriage was recognized under a 2008

Justice Scalia famously ridiculed Kennedy’s argument in his Lawrence dissent, styling this the “sweet-mystery-of- 25

life passage” (id. at 590).

See, generally, “Thea Spyer and Edith Windsor,” New York Times, May 27, 2007; and Ariel Levy, “The Perfect 26

Wife,” The New Yorker, Sept. 20, 2013.

��8


gubernatorial order that directed state agencies to recognize such marriages from other

jurisdictions. When Spyer died in 2009, Windsor sought the federal estate tax exemption for 27

which surviving spouses are eligible. But she was prevented from doing so because Section 3 of

DOMA, through an emendation to the Dictionary Act, excluded same-sex partners from the

definitions of “marriage” and “spouse.” The case came to the Court after the Second Circuit

affirmed the District Court’s decision striking down Section 3, though the United States hadn’t

complied with the judgement.

As in Lawrence, Justice Kennedy delivered the opinion of a divided Court, striking down

Section 3 of DOMA as an unconstitutional “deprivation of the equal liberty of persons that is

protected by the Fifth Amendment.” What is striking about the decision is not only the 28

prominent role dignity plays in Kennedy’s argument, but also the uniformly different sense in

which it is used. To a greater extent than Lawrence—and a fortiori more so than Bowers—

Windsor’s rationale depends on a robust notion of dignity. Moreover, Windsor’s notion of dignity

bears little resemblance to that used in Bowers and Lawrence.

Windsor’s break from the notion of dignity in Lawrence as individual liberty and

autonomy is clear from the first paragraph of Kennedy’s treatment of the central question

presented by the case. After explaining why the Court does, in fact, have jurisdiction over the

case, he turned to the substance of the case presented, noting almost immediately that for many 29

individuals the “possibility that two persons of the same sex might aspire to occupy the same

Jeremy W. Peters, “New York to Back Same-Sex Unions From Elsewhere,” New York Times, May 29, 2008.27

570 U.S., slip op. at 2 (2013) (Syllabus).28

Id. at 5-13 (opinion of Kennedy, J.).29

��9


status and dignity as that of a man and woman in lawful marriage” had been a recent revelation. 30

For Windsor and Spyer, that “status and dignity” was made manifest through the actions of the

State of New York, whose “decision to give [same-sex] persons the right to marry conferred

upon them a dignity and status of immense import.” This decision, in turn, “enhanced the 31

recognition, dignity, and protection of the class in their own community.” Recapitulating New 32

York’s actions in this area, Kennedy continued,

By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond...This status is a far-reaching legal acknowledgement of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages.33

The state’s actions had established the “equal dignity of same-sex marriages.” For present 34

purposes it will suffice to conclude this section with Kennedy’s closing argument, which brings

together the relevance of the state’s actions with the dignity claim at stake in Windsor and marks

the evolution of dignity’s meaning since Bowers:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.35

Id. at 13. 30

Id. at 18.31

Ibid. 32

Id. at 20.33

Id. at 21. 34

Id. at 26.35

��10


III. COMPARATIVE CONTEXT: GERMANY AND SOUTH AFRICA

With the recent developments in American dignity jurisprudence as background, we can turn

now to consider how dignity is treated in constitutional systems outside of the United States. In

this connection, Germany and South Africa present themselves as promising sites for

comparison. The principal considerations for selecting these countries are twofold. First, the

cases differ in the sources of their dignity jurisprudence, with Germany and South Africa having

constitutional provisions invoking dignity and the United States lacking such a provision. This

difference allows for an evaluation of the bearing of the presence and absence of a constitutional

dignity provision on the jurisprudence each system has produced. Further, it allows for the

examination of the relationships between dignity, in both constitutional and non-constitutional

forms, and other fundamental rights like liberty and equality. Second, all three countries are 36

federal systems, though of quite different kinds. If there is an interaction between political

structure and the articulation of dignity rights, as I suggested in my analysis of American dignity

jurisprudence, then this similarity will allow for tighter analogical reasoning and comparison. In

this regard, variation across cases (i.e., in the substance of dignity rights) would be a virtue of the

case-selection because it would enable the relationship between the content of the dignity rights

in question and the particular structure of the constitutional system to be directly examined. In

sum, there are sound methodological reasons for the selection of Germany and South Africa as

case studies against which to evaluate the punctuation in American dignity jurisprudence marked

by Windsor v. United States.

Treatment of this question in the Oxford Handbook of Comparative Constitutional Law’s entry on human dignity 36

is surprisingly sparse; see id. 1, 388, 392-393.

��11


As a final prefatory note, the following descriptions differ from the previous account in at

least two important ways. First, while the treatment of American jurisprudence was focused on

isolating a departure and was therefore developmental, the treatments of Germany and South

Africa are oriented more towards identifying important themes than recent trends. Given the goal

of this inquiry—to situate a new American usage in comparative context—this should not

present any serious methodological concerns. Second, rather than exploring particular court

cases in depth, as in the analysis of Bowers, Lawrence, and Windsor, the discussion of German

and South African cases is intended to sketch a broad picture of the various and divergent

juridical interpretations of dignity. This too is justified given the extended attention devoted to

these (and other) cases in Section IV, where the jurisprudences of all three countries are

discussed in relation to one another.

A. GERMANY

The inclusion of a dignity provision in the German Grundgesetz (Basic Law) is widely seen as

the starting point of dignity’s twentieth century ascendance in national and international law. And

a more prominent place for such a provision could hardly have been selected. Article 1(1) reads:

“Human dignity is inviolable. To respect and protect it shall be the duty of all state authority.”

Drafted in 1949, the Basic Law’s invocation of dignity is redolent of a past against which human

dignity had to be asserted. As Christopher Möllers has written, dignity “was not laid down into

the German constitution because it was self-evident but because it had not been self-evident in

the past.” Additionally, as Michael Rosen has recently argued, the dignity provision was 37

Christopher Möllers, “Democracy and Human Dignity: Limits of a moralized conception of rights in German 37

Constitutional Law,” Israel Law Review 42 (2009) 422. Quoted in Daly, Dignity Rights, 19.

��12


intended to define the new West German state not just relative to its historical predecessor, but

also relative to its eastern neighbor, the German Democratic Republic. The “overlapping 38

consensus” that enabled dignity to be enshrined in the Basic Law also shaped its use over the

subsequent decades. Referring obliquely to McCrudden’s identification of the “Catholic, social

democratic, and Kantian” influences on the drafting of the Grundgesetz, Rosen contends that 39

“[a]ll these elements have played a role in governing how dignity has been interpreted.”40

Our survey of how dignity jurisprudence has played out in German constitutional law can

start with the 1975 First Abortion Case, in which the Bundesverfassungsgericht (Constitutional 41

Court) considered the validity of the 1974 Abortion Reform Act’s decriminalization of abortion.

In the course of finding the act unconstitutional, the Court deployed the human dignity clause to

underscore the constitutional requirement for protection of unborn life. After identifying the

protection due unborn life and the liberty interest of the mother, the Court argued, “The required

balancing therefore has to consider both constitutional values in respect to their relations to the

dignity of man as the central value of the constitution.” In the final analysis, the Court 42

determined, “the protection of the fetus’ life is to be given priority.” On this understanding, 43

human dignity and the protection to which it is entitled inheres in human life and does not

depend on the capacities that the individual may (or may not) possess. Three years later, in the

Lifetime Imprisonment Case, the Court connected dignity to freedom and found both to be

Rosen, Dignity, 79. 38

McCrudden, “Human Dignity,” 665.39

Rosen, Dignity, 80.40

39 Entscheidungen des Bundesverfassungsgerichts [BverfGE] 1 (F.R.G.)41

39 BVerfGE at 43.42

Ibid.43

��13


communitarian, rather than strictly individual, interests. Importantly, it follows from what the

Court termed the “community-boundedness” of freedom that “the individual must allow those

limits on his freedom of action that the legislature deems necessary in the interests of the

community’s social life.” Hence, by identifying the dignitary basis of freedom and the corporate

nature of “freedom within the meaning of the Basic Law,” the Court was able to justify

limitations on individuals’ freedom in the service of human dignity. 44

In 1993, the Court revisited its decision in the First Abortion Case. The Second Abortion

Case concerned the 1992 Pregnancy and Family Assistance Act, which the Constitutional Court

found unconstitutional on the grounds that it did not criminalize abortion for the full duration of

pregnancy. “While the judgment, in general, stigmatized abortion as illegal,” describes Udo

Werner, “it nevertheless allowed renunciation of criminal punishment for abortions obtained

during the first three months of pregnancy.” Though abortion restrictions were still enforced, 45

the Court put greater weight on the woman’s liberty interest than in the First Abortion Case.

More importantly, these liberty interests were described in terms of human dignity, thus elevating

the rights and interests of the woman to the same level as those accorded to fetal life. As the

Court wrote, “[w]here the woman’s constitutional rights, namely her right to free development of

her personality…and to the protection of her dignity, collides with the duty to protect the unborn,

the conflict must be solved in accordance with the principle of proportionality.” Whereas in the

First Abortion Decision the Court framed the case as a conflict between a dignity interest (i.e.,

fetal life) and a non-dignity interest (i.e., the woman’s liberty), in the Second Abortion Case the

Quotations from the Lifetime Imprisonment Case taken from Donald Kommers, The Constitutional Jurisprudence 44

of the Federal Republic of Germany (2nd ed., 1997), 307-308.

“The Convergence of Abortion Regulation in Germany and the United States: A Critique to Glendon’s Rights Talk 45

Thesis,” 18 Loyola of Los Angeles International and Comparative Law Review (1996), 572.

��14


Court determined that both interests implicated dignity. As a result, the competing claims and

interests had to be balanced against each other.

The fourth, and for present purposes final, case in this brief overview of German dignity

jurisprudence is the 2006 Aviation Security Act Case. In the wake of the September 11, 2001

attacks in the United States, the German legislature passed the Aviation Security Act, which

(inter alia) authorized the armed forces to shoot down hijacked aircraft that were thought to be

intended for use as weapons. The Constitutional Court held that the challenged provision was

“incompatible with the fundamental right to life and with the guarantee of human dignity to the

extent that the use of armed force affects persons on board the aircraft who are not participants in

the crime.” Continuing, the Court gave clear expression to the (partial) Kantian origins of 46

German dignity jurisprudence:

Such a treatment ignores the status of the persons affected as subjects endowed with dignity and inalienable rights. By their killing being used as a means to save others, they are treated as objects and at the same time deprived of their rights; with their lives being disposed of unilaterally by the state, the persons on board the aircraft, who, as victims, are themselves in need of protection, are denied the value which is due to a human being for his or her own sake.47

In his analysis, McCrudden likens the Court’s use of dignity to the First Abortion Case “because

in both cases the FCC invoked dignity in conjunction with the right to life in order to imbue that

right with a weight which justified the application of strict scrutiny when assessing whether

incursions into the right were acceptable[.]” This understanding of dignity is further clarified 48

when we come to the concession, later in the opinion, that shooting the aircraft down would be

permissible if the terrorists were the only ones on the plane, because such treatment by the state

BVerfGE Press Release No. 11/2006, Feb. 15, 2006 (available at: http://www.bundesverfassungsgericht.de/46

pressemitteilungen/bvg06-011en.html)

Ibid.47

McCrudden, “Human Dignity,” 717.48

��15

http://www.bundesverfassungsgericht.de/pressemitteilungen/bvg06-011en.html


would “correspond[] to the position of the aggressor as a subject to make him accountable for the

consequences of his autonomous actions.” Hence, as we see in the difference between the First 49

Abortion Case and Second Abortion Case, the presence or absence of a dignity interest can be

deeply consequential for determining the permissible scope of state authority.

B. SOUTH AFRICA

Like Germany, South Africa is distinguished from the United States by the explicit inclusion of

dignity in its constitution. But unlike the Grundgesetz, the Constitution of the Republic of South

Africa includes not one but fourteen mentions of “dignity.” The most significant of these

occurrences appear in Sections 1, 7, and 10, as well as in the Table of Non-Derogable Rights.

Section 1(a) lists “Human dignity, the achievement of equality, and the advancement of human

rights and freedoms” as the values upon which the state is founded. Similarly, Section 7(1)

“affirms the democratic values of human dignity, equality and freedom.” Section 10, entitled

“Human dignity,” provides that “Everyone has inherent dignity and the right to have their dignity

protected.” And finally, the Table of Non-Derogable Rights specifies that human dignity is one of

two rights which is protected “entirely,” the other being the right to life.

Given the relatively substantial constitutional foundation on which the concept of dignity

rests in South African law, it is perhaps understandable that the jurisprudence to which these

provisions have given rise is more varied than its German counterpart. While this complicates a

brief jurisprudential survey, it is nonetheless possible to identify several cases that stand as

prominent examples of the different conceptions of dignity in South African constitutional law.

Kai Moller, “On Treating Persons as Ends: The German Aviation Security Act, Human Dignity, and the Federal 49

Constitutional Court,” Public Law (2006), 462.

��16


The first of these is State v. Makwanyane, the 1995 case in which the Constitutional Court 50

struck down the death penalty on the grounds that it “annihilates human dignity.” Interestingly,

though, the Court determined that “in the hierarchy of values and fundamental rights guaranteed”

by the Interim Constitution, dignity “rank[ed] below” and was “subsumed by” the right to life. 51

Despite the elevation of the rights to dignity and life, it was clear that the destruction of life

wrought by the death penalty was, at least for constitutional purposes, the more salient concern.

Over the next three years, the Constitutional Court handed down two more decisions

elaborating what the constitutional protection of dignity meant in South African law. In the first,

President of the Republic of South Africa v. Hugo, the Court interpreted the Constitution’s 52

equality guarantee as oriented towards “the establishment of a society in which all human beings

will be accorded equal dignity and respect regardless of their membership in particular groups.” 53

Significantly, the Court’s connection of equality and dignity came in a decision rejecting a

father’s claim that a presidential pardon aimed at women with children constituted unlawful

discrimination. Thus, working in concert equality and dignity still permitted differential

treatment that was “not unfairly discriminatory.” The next year the Court decided National 54

Coalition for Gay and Lesbian Equality v. Minister of Justice, which involved a challenge to 55

the common law offense of sodomy. Again emphasizing the link between equality and dignity,

the Court struck down the prohibition and argued that the dignity violation entailed by

1995 (6) BCLR 665 (CC).50

Id., at para. 214.51

1997 (4) SA 1 (1997).52

Id., at para. 41.53

This was the characterization of the Court’s judgment provided in a Media Summary released with the decision in 54

the case (available at http://www.saflii.org/za/cases/ZACC/1997/4media.pdf).

6 BHRC 127 (CC, 1998), 1998 (12) BCLR 1517 (CC).55

��17

http://www.saflii.org/za/cases/ZACC/1997/4media.pdf


criminalizing homosexual relations “radiated out into society generally and gives rise to a wide

variety of other discriminations.” In language presaging the U.S. Supreme Court’s decision five 56

years later in Lawrence, Justice Ackermann described the common law offense as “a palpable

invasion of [gay men’s] dignity.”57

An additional dimension of South African dignity jurisprudence can be found in the 2000

case, Government of the Republic of South Africa v. Grootboom. At issue in Grootboom was an

appeal, grounded in the constitutional guarantee of access to adequate housing (Sec. 26),

stemming from the eviction of a group of families from private land designated for affordable

housing. In its decision, the Court found not only that socio-economic rights were justiciable but

also that they were indissolubly wed to human dignity. Appealing to the familiar trio of

constitutional values, Justice Yacoob stressed that “[t]here can be no doubt that human dignity,

freedom and equality, the foundational values of our society, are denied those who have no food,

clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy

the other rights enshrined in [the Constitution’s Bill of Rights].” Though the Court stopped 58

short of mandating housing for those protesting the eviction—finding that the government had

only to take steps to ensure the “progressive realization” of the Section 26 guarantee—it

nonetheless signaled that future claims for the enforcement of socio-economic rights would be

supported by the weight of the constitutional commitment to human dignity. Subsequent cases

have built on the foundation laid in Grootboom, with the Court employing dignity to establish

Id., at para. 36.56

Id., at para. 28. 57


��18


both a right to social security for permanent residents (Khosa) and a responsibility for state-

sponsored rail services to supply secure transportation (Rail Commuters Action Group).

IV. ANALYSIS: DIGNITY IN COMPARATIVE CONTEXT

With the broad contours of German and South African dignity jurisprudence before us, we can

now attempt to situate the jurisprudential departure, outlined in Section II, marked by the U.S.

Supreme Court’s decision in United States v. Windsor. To do so, I proceed along two related but

distinct avenues of inquiry, each of which is addressed separately below. In Part A, I investigate

the nature of the dignity claims that appear in each of the case studies. Part B then discusses the

significance of dignity in each constitutional system, situating the post-Windsor American

jurisprudence between the two alternatives presented by Germany and South Africa—

constitutional deontology and one value among many, respectively.

A. THE NATURE OF THE CLAIMS

We can begin to evaluate the three countries by investigating the nature of the dignity claims

identified in their respective jurisprudence. For this task, Christopher McCrudden’s identification

of the three claims that constitute an “overlapping consensus” can provide a helpful analytical

tool. After reviewing the many and varied uses of dignity in human rights discourse, McCrudden

reflects that “whilst there is a concept of human dignity with a minimum core, there are several

different conceptions of human dignity, and these differ significantly because there appears to be

no consensus politically or philosophically on how any three of these claims that make up the

core of the concept are best understood.” The three claims he identifies are as follows:59

“Human Dignity,” 679-680.59

��19


1. Ontological claim: “every human being possesses an intrinsic worth, merely by being human”2. Relational claim: “intrinsic worth should be recognized and respected by others, and some

forms of treatment by others are inconsistent with, or required by, respect for this intrinsic worth”

3. Limited-state claim: “the intrinsic worth of the individual requires that the state should be seen to exist for the sake of the individual human being, and not vice versa”60

As these core claims are intertwined and mutually supportive, our focus shouldn’t necessarily be

on which claim defines each country’s jurisprudence but rather which claim (if any) is elevated

above the others and what the consequences of that emphasis are.

Beginning with Germany, we see a strong reliance on the limited-state claim. To be sure,

the ontological claim lies at the root of much of the Constitutional Court’s analysis (especially in

the First Abortion Case), just as the relational claim often plays an important role. But, starting

from the constitutional text, the emphasis on constraining the scope of state action is clear. The

Grundgesetz begins by establishing that human dignity cannot be violated and that it is the duty

of the state to respect and to protect that dignity. Constitutionally speaking, dignity imposes a

substantive requirement and limitation on the state. Thus we see in the First Abortion Case the

affirmation of fetal life, which is grounded in the premise that dignity inheres in life and that the

state mustn’t be complicit in the violation of either. Indeed, it could be argued that the Court’s

failure to conceive of the woman’s liberty interest as implicating dignity stemmed from its focus

on defining what the state could not itself permit and what was required of it once dignity was

ascribed to the life of the fetus. But in the Second Abortion Case, which ostensibly alters the

central holding of the earlier case, we see the recognition that not recognizing the dignitary

dimensions of the woman’s interest itself constitutes an impermissibly invasive role for the state.

The limited-state claim is perhaps most visible in the Aviation Security Act Case, where the

McCrudden, “Human Dignity,” 679. 60

��20


Court found that human dignity requires that the state not treat people as objects, even if that

means allowing many others to die.

The dominant emphasis in South Africa, on the other hand, is the relational claim. This is

due in large part to the connection the court made very early on between equality and dignity,

which, in a sense, expanded the scope of dignitary analysis to include the social and inter-

personal implications of legal practices and state actions. In Hugo, for example, we see dignity

joined with equality to fortify the constitutional commitment to equal treatment and non-

exclusion. A similar analysis was employed in the decisions of Minister of Home Affairs v.

Fourie and Lesbian and Gay Equality Project v. Minister of Home Affairs, two cases that weren’t

discussed above but are nonetheless relevant for their finding that the exclusion of same-sex

couples from the common law definition of marriage constituted a denial of dignity and equality.

Reflecting on this exclusion, Justice Sachs connected the failure to secure dignity and equal

treatment for same-sex couples to “scars…evident in our society” that extend far beyond the

issue at hand. Finally, in Grootboom we find the Court situating its dignity analysis in the context

of socio-economic rights that strive to eradicate conditions and circumstances that threaten

human dignity, like homelessness and poverty. The clearest exception to this trend is National

Coalition for Gay and Lesbian Equality v. Minister of Justice, in which the Court relied heavily

on both the ontological and limited-state claims to strike down the prohibition on sodomy. But

even there, we see a concern for preventing isolated dignity violations from “radiating” out into

the broader society and precipitating systemic violations through the normalization of

discriminatory practices.

What, then, are we to make of the American jurisprudence? There seems to be clear

reliance on the ontological and limited-state claims in both the Bowers dissent and the Lawrence

��21


majority. Both opinions are, in fact, very similar to the South African Constitutional Court’s

treatment in National Coalition. In all three, it was found that the criminalization of sodomy

transgressed a sphere of inviolability and should, therefore, be beyond the reach of the state. But

a different dynamic is at play in Windsor. There, as we saw earlier, the Supreme Court found that

New York had conferred dignity on same-sex couples by recognizing their marriages and,

therefore, that the failure of the federal government to do likewise constituted a violation of the

“equal dignity” established by New York’s actions. In this regard, the Windsor decision is clearly

distinguished from the German and South African cases surveyed—nowhere in their dignity

jurisprudence do we find a similar role accorded to positive law. In those countries we see

repeatedly that a government law or action violated dignity, just as in the American cases, but we

do not encounter the state’s conferral of dignity interests on its citizens.

Nonetheless, a pronounced similarity with South African jurisprudence can be seen if we

focus on the Windsor Court’s attempt to connect the dignity interest of same-sex couples to the

parallel interests of a larger community. By emphasizing that New York had elevated the status

of homosexual unions to the same level as heterosexual couples and that denying federal

protection for the former would be tantamount to imposing a new division between all New York

couples, Justice Kennedy underscored the equality-regarding considerations presented by the

case. A similar move was made by the South African Constitutional Court in Hugo, National

Coalition for Gay and Lesbian Equality, Fourie, and Lesbian and Gay Equality Project when it

connected the dignity interests of a subgroup to those of a larger group, and in so doing made

equality and equal protection concerns relevant to the disposition of the case. Thus, the departure

in American dignity jurisprudence marked by Windsor resembles the South African reliance on

��22


relational dignity claims, even as each constitutional system can draw (and, indeed, has drawn)

on the resources of the ontological and limited-state claims.

B. CONSTITUTIONAL DEONTOLOGY OR ONE VALUE AMONG MANY?

Perhaps the most consequential question about dignity’s place in a national constitutional system

concerns its significance. Obviously, for each of the countries discussed dignity is a salient

component of legal and political discourse. But the question of significance goes much deeper

than that. It seeks to determine why dignity is worthy of attention and what it means to have a

constitutional commitment to dignity. What is the status of the commitment to dignity in

Germany, South Africa, and the United States? And how does that commitment bear on the other

fundamental commitments of each country?

In German constitutional law, dignity serves as what could be thought of as a

constitutional deontology, by which I mean that it serves as a fundamental imperative that

structures and guides constitutional analysis. This status is made particularly clear by the two 61

abortion cases. In the First Abortion Case the Court defined dignity as “the central value of the

constitution.” As I argued above, the emphasis on the dignity of fetal life all but dispensed with 62

the countervailing claim that the woman’s interest in liberty should be taken into account. It

wasn’t until the woman’s liberty interest was identified as a dignity interest in the Second

Abortion Case that the two claims could be weighed against each other. Similarly, in the Life

Imprisonment Case the Court asserted that, “The free human personality and [human] dignity

This term and my understanding of the arguments behind it are derived from Michael Rosen’s treatment of 61

German dignity jurisprudence in Dignity: Its History and Meaning, 63-128.

39 BVerfGE at 43.62

��23


represent the highest legal values within the constitutional order.” Elsewhere, the Constitutional 63

Court has referred to the “paramount constitutional value of human dignity,” expressing “the

highest legal values within the constitutional order.” As a constitutional deontology, dignity 64

serves as the primary interpretive lens through which legal disputes are analyzed and

constitutional meaning is ascertained.

The contrast with South Africa could not be greater. Whereas dignity serves as a

deontological commitment in Germany, in South Africa it serves as one value among many,

chiefly alongside freedom and equality. To be sure, this group of values has a privileged place in

South African constitutional law. But the point is that, unlike in Germany, dignity does not stand

alone. As the South African Constitutional Court held in Grootboom “human dignity, freedom

and equality [are] the foundational values of our society.” Likewise, we saw in Makwanyane 65

that dignity was portrayed “as ranking below the right to life. Indeed [it is] subsumed by that

most basic right.” Moreover, the centrality of dignity to legal analysis has been downplayed, as 66

in Dawood v. Minister of Home Affairs, where the Court found that human dignity, though 67

justiciable and enforceable, exists alongside other fundamental commitments and is often

violated when a more specific constitutional right is infringed. Hence, dignity is liable to being

trumped or outweighed by a coordinate value because the Court has the ability to choose among

fundamental values as vehicles for legal analysis and constitutional interpretation.68

45 BVerfGE 187 (1977).63

Head Scarf Case, BVerfG, 2 BvR 1436/02, para. 53.64


1995 (6) BCLR 665 (CC), at para. 214.66

2000 (3) SA 936 (CC)67

Cf. Port of Elizabeth Municipality v. Various Occupiers, 2004 (12) BCLR 1268 (Const. Ct. S. Africa).68

��24


Given the alternatives offered by Germany and South Africa, where does the status of

dignity in American jurisprudence fall on the spectrum between constitutional deontology and

one value among many? Though it may be surprising when one considers the absence of dignity

from the American Constitution, at least as far as post-Windsor jurisprudence is concerned

dignity in American constitutional law falls closer to a constitutional deontology than one value

among others. This is the case principally because in Windsor Kennedy grounds his argument

about dignity in considerations of both liberty and equality. But instead of weighing these values

against one another, he casts dignity as foundational to both liberty and equality. As a result, the

indignity wrought by DOMA constituted a violation of the “equal liberty” of same-sex partners.

Ironically, dignity can serve as a constitutional deontology in the American constitutional

context precisely because it is not explicitly mentioned in the Constitution. As the South African

case shows, dignity becomes one value among others when there are other constitutionally

protected values of which the Court must be solicitous. But in American jurisprudence dignity is

invoked predominantly by those who believe it to be a foundational, albeit unexpressed,

constitutional value. That is, it is brought into the constitutional conversation by those who

accord it legal or philosophical weight. Those who don’t accord it a similar significance are often

content to address only those values that are present in the constitution. As a result, dignity

jurisprudence in American constitutional law is notably one-sided, with those who see dignity as

a meaningful and consequential value stressing its centrality while those who disagree simply

ignore it.69

Justice Scalia’s dissent in Windsor provides a vivid example of this dynamic. Though he quotes the majority’s use 69

of dignity twice, he doesn’t directly engage Kennedy’s dignitary arguments. Indeed, Scalia doesn’t even use the term outside of the quotations he cites.

��25


But the function I’ve attributed to dignity in American constitutional law isn’t without its

complications, and it is on this note that I will conclude this Section. If, as I’ve just argued,

dignity serves as something like a constitutional deontology in American law, then one must ask,

why was the Court’s decision limited to the citizens of New York? There are obvious political

explanations for the Court’s refraining from finding a constitutional right to same-sex marriage

but there are also important legal considerations, chief among which is the role of federalism.

Remember that the decisive fact in Windsor was New York’s decision to extend the benefits of

marriage to same-sex couples. It is on that basis that they were brought into the community of

individuals who already enjoyed the socio-legal benefits of marriage, and from whom same-sex

couples would be impermissibly distinguished if DOMA’s prohibition was sustained. As I argued

in Part A, the connection to a larger community relative to which homosexual couples were to be

treated equally was a decisive step in Kennedy’s argument. Accordingly, the federal system

offered the necessary structure for the majority’s identification of relevant political communities

and authoritative political actors.

It is here that we see the tension between a strong commitment to federalism and the

commitment to dignity as a fundamental constitutional value. If dignity is truly as important a

value as Kennedy lets on—if it is, in fact, foundational to both liberty and equality—then how

can state lines supply justifiable distinctions between similarly situated individuals and couples?

In Windsor arguments from federalism and human dignity worked in concert to vindicate New

York’s efforts to enhance the legal and social standing of same-sex couples. What will be the

result when the two constitutional commitments are pitted against each other?

��26


V. CONCLUSION

I have attempted in this Essay to situate American dignity jurisprudence in comparative

constitutional context. This required first establishing what role dignity plays in American

constitutional law, which I did with particular attention paid to the development between Bowers

v. Hardwick and United States v. Windsor. I argued that this development entailed a shift away

from dignity understood primarily in terms of liberty and autonomy to an understanding in which

dignity is a function of the socio-legal situation of one’s peers and permits of both modification

and bestowal. After surveying the dignity jurisprudence of Germany and South Africa, I brought

the three cases together and examined them along two dimensions: the nature of the dignitary

claims presented in the three legal systems and the significance of the constitutional commitment

to dignity in each country. Regarding to the former, I concluded that post-Windsor dignity

jurisprudence in the United States is more like South African jurisprudence because it relied most

heavily on a relational claim, according to which dignity requires recognition, respect, and

treatment congruent with intrinsic worth. As to the latter, however, I argued that the significance

of dignity in American jurisprudence, particularly following Windsor, resembles its role in

German constitutional law as a constitutional deontology. Though the potential conflict between

such a fundamental commitment to dignity and a strong commitment to federalism was

concealed in Windsor, I concluded by raising questions about how long that tension can be

sustained.

Controversy over the proper role of dignity in American jurisprudence will no doubt

continue, just as the disagreements surrounding the cases to which dignity has been applied show

no signs of abating. But perhaps that is as it should be. Perhaps, as the experiences of Germany,

��27


South Africa, and the United States demonstrate, the promise and potential of human dignity as a

constitutional commitment are most clearly revealed when they are challenged.

��28


TABLE OF CASES

GERMANYAviation Security Act Case (2006)

First Abortion Decision, 39 BverfGE 1 (1975)Lifetime Imprisonment Case (1977)

Lisbon Treaty Case (2009)Second Abortion Decision (1993)

SOUTH AFRICADawood v. Minister of Home Affairs (2005)

Government of the Republic of South Africa v. Grootboom (2000)Khosa v. Minister of Social Development (2004)

Lesbian and Gay Equality Project v. Minister of Home Affairs (2005)Minister of Home Affairs v. Fourie (2005)

National Caolition for Gay and Lesbian Equality v. Minister of Justice (1998)Port Elizabeth Municipality v. Various Occupiers (2004)President of the Republic of South Africa v. Hugo (1997)

Rail Commuters Action Grop v. Transnet Ltd t/a Metrorail (2005)State v. Makwanyane and Mchunu (1995)

UNITED STATESBowers v. Hardwick (1986)

Carey v. Population Services International (1977)Chisholm v. Georgia (1793)Eisenstadt v. Baird(1972)

Fitzgerald v. Porter Memorial Hospital (1975)Furman v. Georgia (1972)

Griswold v. Connecticut (1965) Lawrence v. Texas (2003)

Rochin v. California (1952)Roe v. Wade (1973)

Trop v. Dulles (1958)United States v. Windsor (2013)

��29


WORKS CITED

Daly, Erin. 2013. Dignity Rights: Courts, Constitutions, and the Worth of the Human Person. Philadelphia: University of Pennsylvania Press.

Heyman, Steven J. 2008. Free Speech and Human Dignity. New Haven, CT: Yale University Press.

Kommers, Donald. 1997. The Constitutional Jurisprudence of the Federal Republic of Germany. 2nd ed. Durham, NC: Duke University Press.

Mahlman, Matthias. 2012. “Human Dignity and Autonomy in Modern Constitutional Orders,” in The Oxford Handbook of Comparative Constitutional Law. Michel Rosenfeld and András Sajó, eds. Oxford: Oxford University Press.

McCrudden, Christopher. 2008. “Human Dignity and Judicial Interpretation of Human Rights.” The European Journal of International Law, Vol. 19, no. 4.

Meyer, Michael A and William A Parent, eds. 1992. The Constitution of Rights: Human Dignity and American Values. Ithaca, NY: Cornell University Press.

Moller, Kai. 2006. “On Treating Persons as Ends: The German Aviation Security Act, Human Dignity, and the Federal Constitutional Court,” Public Law (Autumn), 457-466.

Möllers, Christopher. 2009. “Democracy and Human Dignity: Limits of a moralized conception of rights in German Constitutional Law.” Israel Law Review 42 (2009), 417-439.

Moyn, Samuel. 2013. “Dignity’s Due.” The Nation. 4 November.

Paust, Jordan J.. 1984. “Human Dignity as a Constitutional Right: A Jurisprudentially Based Inquiry into Criteria and Content.” 27 Howard Law Journal 145.

Pinker, Steven. 2008. “The Stupidity of Dignity.” The New Republic. 28 May.

Rosen, Michael. 2012. Dignity: Its History and Meaning. Cambridge, MA: Harvard University Press.

Rosenfeld, Michel and Andras Sajó. 2012. The Oxford Handbook of Comparative Constitutional Law. Oxford: Oxford University Press.

��30


Werner, Udo. 1996. “The Convergence of Abortion Regulation in Germany and the United States: A Critique to Glendon’s Rights Talk Thesis.” 18 Loyola of Los Angeles International and Comparative Law Review 571.

Whitman, James Q. 2004. “The Two Western Cultures of Privacy: Dignity Versus Liberty.” 113 Yale Law Journal 1151.

��31

American Dignity Jurisprudence in Comparative Constitutional Context

Documents

Transcript of American Dignity Jurisprudence in Comparative Constitutional Context