Neomi Rao (George Mason University School of Law) has posted Three Concepts of Dignity in Constitutional Law (Notre Dame Law Review, Vol. 86, No. 1, pp. 183-271, 2011) on SSRN. Here is the abstract:
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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.
And from the conclusion of the paper:
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This Article has sought to demonstrate three different concepts of dignity: the dignity of the individual associated with autonomy and negative freedom; the positive dignity of maintaining a particular type of life; and the dignity of recognition of individual and group differ- ences. Each of these forms of dignity expresses different values about the individual and his relationship to society, values that have important consequences when dignity is used as a justification for social pol- icy and constitutional rights.354
Constitutional courts, however, often elide the different conceptions of dignity and fail to identify the conflicts between them. This conflation of concepts no longer works for values we know to be dis- tinct, even if sometimes overlapping, like liberty and equality.355 But dignity as a political and constitutional ideal is a relative newcomer, and so it may still seem possible that dignity can include a little bit of liberty, equality and fraternity, as the circumstances require. Nonetheless, despite the seeming openness of dignity, neither scholars nor constitutional judges have found a unifying understanding of this value—and it is unlikely that they will find one.356 Instead, as the examples demonstrate, courts use different conceptions of dignity to support particular conceptions of what is worthy of regard in the individual. These conceptions of value mirror familiar debates about negative and positive freedom, liberty and equality, and the relationship between the individual and the community—the conflicts do not disappear simply by appealing to “dignity.” While some forms of dignity may coexist or overlap, the demands of differ- ent forms of dignity cannot be simultaneously maximized.
But dignity in constitutional law and political life cannot simply be brushed aside. In modern constitutional systems, dignity is already a preeminent value. Even in the United States, it is increasingly a part of our discourse in thinking about individual rights and government action. So it makes sense to think about what conceptions of dignity we want to promote in our political and social community. The type of dignity that a society protects is part of how a community defines itself—how individuals belong to the community and how the state must act to respect human dignity. An appeal to dignity cannot solve conflicts between competing visions of the good life, but it gives us an opportunity to discuss what we value and why.
If different conceptions of dignity are irreconcilable, then per- haps, for the sake of conceptual clarity in constitutional discourse, we should choose a particular conception of dignity. A grand philosophi- cal definition of dignity being unavailable, we can evaluate what dig- nity means and what it should mean in American constitutional law. I hope that by identifying three different conceptions of dignity, this Article will be a precursor to further work in this direction.
Although more research is necessary, I will offer a few thoughts on this subject. The American constitutional law tradition has prima- rily emphasized intrinsic human dignity that promotes liberty and autonomy—it is the dignity of the individual demanding a certain freedom and space from government interference. This form of dignity accords with our constitution of negative rights and with an awareness of judicial limitations in articulating and protecting social norms and values of dignity. Moreover, it fits with our liberal, pluralis- tic society and allows individuals to pursue various conceptions of the good life.
Highly recommended!
This paper doesn't deploy the concept-conception distinction–using the two words interchangeably so far as I can tell. Is the thesis that there are actually distinct concepts at work–in which case it is a mere linguistic accident that the word "dignity" names three different political ideas. Or are they three different conceptions of the same concept? Or something else?