This review by Matthew T. Mangino appeared in the April, 2014 edition of The Champion a national publication of The National Association of Criminal Defense Attorneys.
Erin Daly tells us that law is a practical enterprise that deals with a real problem in real peoples’ lives. With that as a backdrop, Daly takes off on an ambitious journey to explain the evolution of dignity in American, and the world’s, jurisprudence. Dignity Rights: Courts, Constitutions, and the Worth of the Human Person is worth the effort.
There was a “cavalcade” of constitutional dignity rights after World War II. There was no denying that phenomenon as policymakers came to terms with the horrors that occurred in Asia and Europe. In 1948, the Universal Declaration of Human Rights (UDHR) inspired the postwar constitutional drafting.
By the end of World War II the U.S. Constitution had been examined, reviewed, analyzed, interpreted, expanded, restricted, revered and condemned countless times. With that being said, the U.S. Constitution never mentions dignity.
Maybe that’s why the concept of human dignity has been a late-comer to American jurisprudence.
Daly, a professor at Widener University Law School wrote, “The influence of World War II on dignity jurisprudence in America is visible, though less pronounced than in some other countries.”
The U.S. Supreme Court’s first mention of dignity as an individual right is a fleeting reference in Skinner v. Oklahoma in 1942. In a 1945 dissent in U.S. v. Screws, Justice Frank Murphy wrote, “The right was his…because he was a human being. As such he was entitled to all the respect and fair treatment that befits the dignity of man.”
From the mid-twentieth century up through the present, Daly points out that the concept of dignity arose “most clearly in the context of the police state, as defendants and inmates argued forcefully that the investigative, prosecutorial and punitive practices of the government violated their individual dignity.”
In Miranda v. Arizona the Supreme Court wrote of oppressive interrogations as “destructive of human dignity.” In Roper v. Simmons, the court outlawed the execution of juveniles. The Court wrote, “The basic concept of the Eighth Amendment is nothing less than the dignity of man.”
Although dignity has seeped into high court decisions, Daly writes, “It cannot be denied that the U.S. Supreme Court has so far declined to embrace human dignity with the ardor of its global peers.” In fact, 95 percent of the opinions from the Roberts Court do not mention dignity and half of those that do mention dignity in connection with inchoate ideas.
Daly explains there is more to the story of the U.S. Supreme Court’s inattention to human dignity. The court has sparred over exactly what dignity means and what dignity is. In a controversy over the right of self-representation at trial, Justice Stephen Breyer wrote that such action “will not ‘affirm the dignity’ of a defendant who lacks the mental capacity” to defend himself. Daly wrote that Breyer “holds that the state can limit a person’s choice in order to enhance his or her personal dignity.”
Justice Antonin Scalia unabashedly takes another approach. He wrote, in dissent, in Indiana v. Edwards, “the dignity at issue is the supreme human dignity of being master of one’s fate rather than a ward of the state—the dignity of individual choice.”
Daly reminds us of what Lincoln said more than a century and a half ago, when vital questions are left to the Supreme Court, “People will cease to be their own rulers.” Daly doesn’t see it that way.
The dichotomy on the court with regard to dignity is a product of conservative and progressive agendas of the respective jurists. There are fundamental differences as to the state’s role in supporting dignity.
As the role of government in promoting dignity evolves around the world there is no denying that the commitment to democracy is on the rise. Daly asserts, as democracy spreads a new version of the judicial role it allows the people, their government and courts to work together to develop policy with constitutional values.
Daly suggests that dignity jurisprudence promotes democracy by recognizing that “[E]ach person has one very important, very valuable asset that is inalienable and irreducible and infinite”—dignity. The concept of dignity also permits democracy to thrive, especially in the middle class. Judicial pressure on political branches of government can promote worthy causes such as eradicating “extreme poverty.” Finally, jurisprudence of dignity invites people into public discourse.
Daly wraps the connection of dignity, democracy and jurisprudence into a neat little bow. Constitutions and courts protect human dignity. People feel dignity—they are empowered and increasingly participate in politics. That power forces policymakers to listen.
(Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. in New Castle, Pennsylvania. You can read his blog every day at www.mattmangino.com and follow him on twitter @MatthewTMangino)
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