Abstract
The concept of human dignity has received renewed attention, for some time now, from legal scholars and commentators in the United States. It is cited in jurisprudential writings, in court opinions, and often in the Supreme Court’s dissenting opinions. Several scholars consider that it does already play a role in American constitutional jurisprudence; they appeal to a more consistent use of the concept in modern constitutionalism. However, there is a lot of disagreement as to whether human dignity should be incorporated into the domestic legal framework and whether importing a European concept, more attuned to communitarian values and possibly fraught with ambiguity and vagueness, is necessary. Many deem the notion of dignity, which is absent from the Constitution, alien to American tradition and culture. This chapter explores the use of dignity in some of the jurisprudence of the Supreme Court as well as in American bioethics through the so-called “Ashley case”—a case in which dignity, a notion seldom referenced in bioethics, was identified as the fundamental value at stake.
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Notes
- 1.
[End of life and the ECHR] “Fin de vie et Convention européenne des droits de l’homme,” Lambert et autres cas, France, June 5th 2015, (Grande Chambre), 3, http://www.echr.coe.int/Documents/FS_Euthanasia_FRA.pdf.
- 2.
However, no withdrawal was carried out due to the patient’s physician resigning from the case. A new decision (July 19, 2017) of the Conseil d’Etat requested that due to the change in the situation, the medical decision process as defined by the law should be started all over again with the new physician responsible for Lambert’s care. However in June 2018, the Court appointed physicians resigned.
- 3.
Googling “Dignity and Vincent Lambert” yielded more than 220.000 results!.
- 4.
Ruth Macklin, “Dignity is a useless concept: it means no more than respect for persons or their autonomy,” British Medical Journal, vol. 327, n° 7429, 20–27 (December, 2003): 1419–1420. For an opposing view, see Donna Hicks, Dignity: Its essential role in resolving conflict (Yale University Press, 2013), 4.
- 5.
Steven Pinker, “The Stupidity of Dignity, Conservative bioethics’ latest most dangerous ploy” New Republic, May 28, 2008.
- 6.
Human Dignity and Bioethics, Essays commissioned by The President’s Council on Bioethics, Washington D.C., March 2008.
- 7.
Steven Pinker, op. cit.
- 8.
See Camille Robcis, “The biopolitics of dignity,” in The South Atlantic Quarterly 115:2, April 2016 and Neomi Rao, “On the Use and Abuse of Dignity in Constitutional Law,” Columbia Journal of European Law, vol.14, 2, (2008).
- 9.
Rao, “On the Use and Abuse of Dignity,” 201–256.
- 10.
Stephen Wermiel, “Law and Human Dignity: The Judicial Soul of Justice Brennan,” William & Mary Bill of Rights Journal, vol. 7, n° 1, 1998, p. 223. For the pivotal role of Supreme Court Justice Brennan regarding the defense of dignity in the Constitution: “The Constitution is a sublime oration, on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law,” (Speech in 1985).
- 11.
Gilbert Meilaender, “Human Dignity and Public Bioethics,” The New Atlantis, (2007).
- 12.
Frederick Schauer, “Speaking of Dignity” in The Constitution of Rights: Human Dignity and American Values, ed. M. Meyers and W. A. Parent, (Cornell University Press, 1992), 17.
- 13.
Jordan Paust, “Human Dignity as a Constitutional Right: a Jurisprudentially Based Inquiry into Criteria and Content,” Howard Law Journal, vol. 27, no. 1 (1984), 145–148.
- 14.
Maxine Goodman, “Human Dignity in Supreme Court Constitutional Jurisprudence,” Nebraska Law Review, vol. 84 (2006), 740.
- 15.
The US Constitution, as ratified in 1788, is made up of seven articles and a brief preamble. 27 Amendments were later added to it. The first four articles and certain Amendment are divided into sections. Even though this division is not part of the original constitution, today it is always part of the text, as it allows for quick reference to it.
- 16.
Elisabeth Zoller, “La dignité de la personne humaine dans la jurisprudence de la Cour suprême des États-Unis,” Revue générale du droit, Études et réflexions, n° 5, (2014).
- 17.
Glasser v. United States, 315 U.S.60 (1942).
- 18.
The Bill of Rights is the term used for the 10 first amendments of the United States Constitution.
- 19.
Korematsu v. United States, 323 U.S. 214, 240 (1944) (Murphy, J. dissenting).
- 20.
Yamashita v. Styer, 327 U.S. 1 (1946).
- 21.
Trop v. Dulles, 356 U.S. 86 (1958), see e.g. “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards.”
- 22.
Hope v. Pelzer, 536 U.S. 730 (2002).
- 23.
Furman v. Georgia, 408 U.S. 238 (1972).
- 24.
In 1990, he expressed his dissent in following words “[…] that the death penalty is wholly inconsistent with the constitutional principle of human dignity,” Walton v. Arizona, 497 U.S. 639, 675.
- 25.
Brown v. Plata, n 09-1233, 563 U.S (2011).
- 26.
Thompson v. Oklahoma, 487 U.S. 815 (1988).
- 27.
Atkins v. Virginia, 536 U.S. 304 (2002).
- 28.
Roper v. Simmons, 543 U.S. 551 (2005).
- 29.
Kennedy J. in Roper v. Simmons, 543 U.S. 551 (2005), at 1200.
- 30.
Hall v. Florida, 572, US. (2014).
- 31.
Schmerber v. California, 342 U.S 165, 172, 174 (1952).
- 32.
Rochin v. California 342 U.S. 165 (1952). An individual was compelled to undergo stomach pumping to recover a piece of evidence in a misdemeanour. In this case, the notion of human dignity was conflated with that of the physical integrity when the spirit of the Fourth Amendment has more to do with the protection of private life.
- 33.
Supreme Court judges in disagreement with a decision may add their own so-called “dissenting opinion.” Such opinions, whether concurring or dissenting have no force in other courts.
- 34.
Rex Glensy, “The Right to Dignity,” Columbia Human Rights Law Review, (2011). See note 123 on p. 90.
- 35.
Glensy, op.cit.
- 36.
Glensy, op.cit.
- 37.
Lawrence v. Texas, 539 U.S.558, 558 (2003).
- 38.
If everyone is free to be homosexual, without there being a right to be homosexual, the State has no obligation to protect the practice of homosexuality apart from guaranteeing those who practice it the principles of due process of law and equal protection under the laws. See Zoller.
- 39.
Lawrence v. Texas, 539 U.S, 567 (2003). See also for a parallel between Lawrence and European conceptions on dignity, Rao, “On the Use and Abuse of Dignity,” 242–243.
- 40.
Planned Parenthood v. Casey, 505 U.S. 833 (1992).
- 41.
Stenberg v. Carhart, 530 U.S. 914 (2000).
- 42.
Glensy, “Right to Dignity,” 93.
- 43.
Windsor, 570 U.S., at 25–26 (slip op.).
- 44.
See N. Rao, op. cit, note 9, pp. 201–255, for a discussion of the American constitutionalism which defends rights rather than values such as human dignity, thereby limiting the Supreme Court from overly theoretical interpretations.
- 45.
Zoller, “La dignité de la personne humaine.”
- 46.
James Q. Whitman , “The two western cultures of privacy: dignity versus liberty,” Yale Law Journal vol. 113 no. 6 (April 2004), 1151, 1165.
- 47.
A national survey of US physicians viewed the concept of dignity as useful in end of life care. See Ryan Antiel et al., “Dignity in end of life care: results of a national survey of US physicians,” J Pain Symptom Manage, (2012), 44 (3).
- 48.
The Natural Death Act of California, 1976 (revised through 1992) SEC.7186, in Source Book in Bioethics: a Documentary History, ed. A. R. Jonsen et al., (1998).
- 49.
(…) “respect for persons incorporates at least two basic ethical convictions: first that individuals should be treated as autonomous agents, and second that persons with diminished autonomy are entitled to protection”, The National Commission for the Protection of the Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the protection of Human Subjects of Research, Report 2 (Washington DC, US Government Printing office, 1978).
- 50.
Sam Verhovek, “Parents defend decision to keep disabled girl small,” Los Angeles Times, January 03, 2007.
- 51.
It is interesting to mention here that since the inception of the Civil Code in 1804, the legal status of animals was that of mere objects in France, but the new text adopted early 2015 by the National Assembly now defines animals as “sentient living beings”.
- 52.
Peter Singer, “A convenient truth,” New York Times, January 26, 2007.
- 53.
“Parents defend decision to keep girl a child” by C. Ayers, The Times, January 4 , 2007.
- 54.
Gunther D.F. & Diekema S., “Attenuation growth in children with profound developmental disability: A new approach to an old dilemma”, Archives of Pediatrics and Adolescent Medicine, vol. 160 no 10. (2006): 1013–1017.
- 55.
Art Caplan, “Is Peter Pan treatment a moral choice?” (2007), http://www.nbcnews.com/id/16472931/ns/health-health_care/t/peter-pan-treatment-moral-choice/#.Wd0iv1tSy70.
- 56.
L. Kass, Foreword, in Defending Dignity, Chapt.12 in Human Dignity and Bioethics, Essays commissioned by The President’s Council on Bioethics, Washington D.C., March 2008.
- 57.
Coleman (2007), Kittay (2007), Exceptional Parent (2007), The Waffling Anglican (2006), etc. to give just a few examples.
- 58.
The Wafling Anglican (2006).
- 59.
“Statement of Solidarity for the Dignity of People with Disabilities” (2007), http://sci.rutgers.edu/forum/showthread.php?76375-Statement-of-Solidarity-and-Action-Alert-regarding-Ashley-X.
- 60.
For a legal interpretation of Ashley’s case, see Meryl Mills, “The legal and moral implications of growth attenuation”, Health Law & Policy Brief, vol. 1, issue 2 (2013).
- 61.
These mutilations labeled as ‘Growth attenuation procedures’ were deemed ‘medical treatment’ and without any judicial definition in the case law of a medical treatment, it was left to the parents to decide on behalf of Ashley. See Mills, “Legal and moral implications of growth attenuation.”
- 62.
Douglas Diekema & Norman Fost, “Ashley Revisited: A Response to the Critics,” The American Journal of Bioethics, 10. (2010) 30–44.
- 63.
See Francis Kernaleguen, “The jurisprudential realit(ies) of the principle of human dignity in France: a prevailing or an authoritative principle,” in this book, on the prohibition of dwarf tossing in France.
- 64.
England and Wales High Court (Family Division) Decisions, http://www.bailii.org/ew/cases/EWHC/Fam/2017/972.html. See “Full judgement”, note 27, “ (…) it is in Charlie’s best interests, not to undergo nucleoside therapy provided always that the measures and treatments adopted are the most compatible with maintaining Charlie’s dignity.”
- 65.
Macklin, “Dignity is a useless concept,” 20–27.
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Orfali, K. (2018). Putting the Principle of Human Dignity to the Test: A “Useless” Concept from an American Perspective?. In: Feuillet-Liger, B., Orfali, K. (eds) The Reality of Human Dignity in Law and Bioethics. Ius Gentium: Comparative Perspectives on Law and Justice, vol 71. Springer, Cham. https://doi.org/10.1007/978-3-319-99112-2_15
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