On the Use and Abuse of Dignity in Constitutional Law
George Mason University - Antonin Scalia Law School, Faculty
Columbia Journal of European Law, Vol. 14, No. 2, pp. 201-256, Spring 2008
George Mason Law & Economics Research Paper No. 08-34
Human dignity has developed into a core value of modern constitutionalism. In the United States, the Supreme Court has referred to human dignity only sporadically, but several justices and a number of scholars have advocated using the concept of human dignity to modernize American constitutional law and to keep in step with the international community. I argue in this Article that acceptance of the modern, largely European conception of human dignity would weaken American constitutional protections for individual rights.
Human dignity as a constitutional concept has drawn its meaning from a European cultural and social context that emphasizes communitarian values, rather than individual ones. In practice, modern constitutionalism prefers balancing and harmonizing rights with other political and social needs. The widespread acceptance of such tradeoffs minimizes the importance of rights because courts review rights as part of a political calculus. By focusing on values such as human dignity, modern constitutionalism deprives rights of their special force. The experience from abroad suggests caution before importing the European ideals of human dignity into American constitutional law.
Number of Pages in PDF File: 58
Keywords: communitarian, Constitution, human dignity, individual, limitations clauses, proportionality review, Supreme Court, value
Date posted: June 15, 2008 ; Last revised: June 17, 2008