Over at Jotwell, Jonathan Simon has a spot-on review of my colleague Leslie Meltzer Henry’s brilliant article, The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011). Henry’s work on dignity is as illuminating as it is ambitious. I urge you to read the piece. Here is Simon’s review:
Today American law, especially Eighth Amendment law, seems to be in the middle of a dignity tsunami. The United States is not alone in this regard, or even in the lead. Indeed dignity has been an increasingly prominent value in modern legal systems internationally since the middle of the 20th century, marked in the prominence given that term in such foundational documents of the contemporary age as the Universal Declaration of Human Rights, in the reconstructed legal systems of post-war Europe (particularly Germany), and in regional human rights treaties like the European Convention on Human Rights and the more recent European Union Charter of Rights. A stronger version of dignity seems increasingly central to reforming America’s distended and degrading penal state. Legal historians have suggested that American history — particularly, the absence of a prolonged political struggle with the aristocracy and the extended experience with slavery — rendered dignity a less powerful norm, which may explain the relative weak influence of dignity before now. Yet its increasing salience in the Roberts Court suggests that American dignity jurisprudence may be about to spring forward.
Professor Leslie Henry’s 2011 article, The Jurisprudence of Dignity, is a must-read for anyone interested in taming our penal state. Henry provides a comprehensive analysis of the US Supreme Court’s treatment of the term from the founding to the present. Henry borrows from the language philosopher Ludwig Wittgenstein the concept of a “family resemblance” and suggests that dignity as a legal term is anchored in five core meanings that continue to have relevance in contemporary law and which share overlapping features (but not a single set of factors describing all of them). The five clusters are: “institutional status as dignity,” “equality as dignity,” “liberty as dignity,” “personal integrity as dignity,” and “collective virtue as dignity.” These clusters suggest there can be both considerable reach but also precision and limits to using dignity to shape constitutional doctrine.
For much of the period between the Revolution and the middle of the 20thcentury, the meaning of dignity was confined largely to the first category, “institutional status as dignity.” Dignity by status dates from the earliest Greek and Roman conceptions, when dignity was associated with those of high status and conceptualized as anchored in that status. The United States by the time of the Constitution renounced the power to ennoble an aristocracy but shifted that hierarchical sense of dignity to the state itself and its officials. For much of the next century and a half, dignity is discussed mostly as a property of government, especially states and courts. This began to change in the 20th century, and the change accelerated significantly after World War II. Read More