Dignity Rights in America (Work in Progress)

32 Pages Posted: 24 Oct 2023 Last revised: 12 Dec 2024

See all articles by James R. May

James R. May

Washburn University - Washburn University School of Law; Widener University Delaware Law School; Haub School of Law at Pace University

Date Written: October 20, 2023

Abstract

Dignity as a normative concept recognizes that every member of the human family has worth that is equal, inviolable, universal and inherent. Despite its abstruse philosophical underpinnings, dignity matters in real ways to real people because in addition to the normative and philosophical, dignity is also law, meaning that it exists both as a source of and influence on the rule of law. Dignity, as the epigraphs suggest, is the axis around which international, regional, national, and subnational levels law revolves. Yet, dignity as a legal right in America matters mostly episodically and unremarkably. The reason for this is that dignity as law (and its subsidiary, dignity rights) has yet to find much of a foothold in the United States. The U.S. Constitution doesn’t mention it. And while the U.S. Supreme Court episodically refers to dignity, most notably in cases involving the death penalty and same-sex relations, neither it nor any federal court has yet to find a stand-alone right to dignity. Simply, there is not (yet, perhaps) a vindicable private cause of action to dignity under federal law in America. No federal court (or judge) has recognized a subjective right to human dignity. The story is different and more interesting at the subnational level. Dignity’s heart beats primarily in two jurisdictions with constitutions that declare that the right to dignity is “inviolable”: Montana and Puerto Rico. As we’ll see, the subnational right to dignity in these jurisdictions animates outcomes across the political and socioeconomic spectrums in these jurisdictions, from the criminal justice system to workplace discrimination.

This article has three parts. Part I describes dignity’s transformational and enforceable role in international and global law. Part II explains the normative role dignity sometimes plays in cases before the U.S. Supreme Court, especially in cases involving capital punishment and same-sex relations. Part III pivots to subnational dignity constitutionalism in the United States, principally involving the rights of crime victims and an assortment of rights in Puerto Rico and Montana. Here, as we’ll see, while constitutional recognition of a right to dignity clearly makes a difference in some contexts, its role is at best in the service of other rights, such as to equal protection under law, or against cruel and unusual punishment. The conclusion reflects the dialectic role of subnational dignity rights in America.

Keywords: Dignity, constitutional, rights, subnational, Montana, Puerto Rico

Suggested Citation

May, James, Dignity Rights in America (Work in Progress) (October 20, 2023). Available at SSRN: https://ssrn.com/abstract=4608524 or http://dx.doi.org/10.2139/ssrn.4608524

James May (Contact Author)

Washburn University - Washburn University School of Law ( email )

1700 SW College Ave.
Topeka, KS 66621
United States

Widener University Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

Haub School of Law at Pace University ( email )

78 N. Broadway
White Plains, NY 10603
United States

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