My brilliant colleague and co-author Leslie Meltzer Henry is a thought leader on dignity’s jurisprudential and philosophical implications. University of Pennsylvania Law Review just published her engrossing and important piece entitled “The Jurisprudence of Dignity.” I’m hoping to have a longer conversation about the piece in the future. For now, here is the abstract:
Few words play a more central role in modern constitutional law without appearing in the Constitution than “dignity.” The term appears in more than nine hundred Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meanings and functions are commonly presupposed but rarely articulated. The result is a cacophony of uses so confusing that some critics argue the word ought to be abandoned altogether.
This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity and then proposing a typology of dignity based on an analysis of how the term is used in those opinions. The study reveals three important findings. First, the Court’s reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in contrast to its past use, dignity is now as likely to be invoked by the more conservative Justices on the Court as by their more liberal counterparts. Finally, the study demonstrates that dignity is not one concept, as other scholars have theorized, but rather five related concepts.
The typology refers to these conceptions of dignity as institutional status as dignity, equality as dignity, liberty as dignity,personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court’s use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, that arise from shifting conceptions of dignity.