Three Concepts of Dignity in Constitutional Law
Antonin Scalia Law School, George Mason University
May 11, 2011
Notre Dame Law Review, Vol. 86, No. 1, pp. 183-271, 2011
George Mason Law & Economics Research Paper No. 11-20
The U.S. Supreme Court and constitutional courts around the world regularly use the term human dignity when deciding cases about freedom of speech, reproductive rights, racial equality, gay marriage, and bioethics. Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning. A close review of constitutional decisions, however, demonstrates that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values. Using the insights of political theory and philosophy, this Article identifies three concepts of dignity used by constitutional courts and demonstrates how these concepts are fundamentally different in ways that matter for constitutional law. In contentious cases, the concepts of dignity will often conflict. If constitutional courts continue to rely on human dignity, judges must choose between different understandings of dignity. This Article provides the groundwork for making these choices and defending a concept of dignity consistent with American constitutional traditions.
Number of Pages in PDF File: 91
Keywords: abortion, affirmative action, autonomy, communitarian, comparative, declaration, Due Process, Dworkin, Eighth Amendment, Equal Protection, First, hate speech, headscarf, Isaiah Berlin, Lawrence v. Texas, liberty, negative, positive, privacy, recognition, rights, same-sex marriage, Sixth, universal
Date posted: May 13, 2011
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