After the oral arguments in Obergefell v. Hodges, Jeffrey Rosen published The Dangers of a Constitutional ‘Right to Dignity’. Needless to say, society isn’t organized around taking away Jeffrey Rosen’s dignity. You don’t know what you’ve got til it’s gone:
It’s obvious but taboo that American society is incompatible with human dignity. These statements are really remarkable when you stop and think about them:
Although the word dignity has appeared in more than 900 Supreme Court opinions, Justice Kennedy, as Kenji Yoshino of NYU has noted, has been especially drawn to it. He has referred to “dignity” in cases ranging from partial-birth abortions to prisons. As Yoshino puts it, “When Justice Kennedy ascribes dignity to an entity, that entity generally prevails.” Kennedy’s recognition of the dignity interests of LGBT couples has been influential in persuading lower court judges to strike down bans on same-sex marriage. But although Kennedy’s description of the dignitary interests of LGBT couples is inspiring, and it accurately describes their social experience, the roots of the right to dignity in constitutional text, history, and tradition are harder to discern.
He gives the game away by talking about “partial-birth abortion.” As the Center for Reproductive Rights explained back in the day:
There is no medical procedure called a “partial birth abortion,” nor is it found in medical literature. It is a political term made up by extreme conservatives to confuse people. The federal ban defines the term “partial-birth abortion” so broadly that it would prohibit a wide range of abortions performed in the second trimester. Also the ban is not about third-trimester abortions. Forty states and the District of Columbia already ban third-trimester abortions except when the life or health of the woman is at stake. Instead, the broad language of the law would ban some early abortions, and it fails to include a health exception to protect women.
Anyway, Rosen is being deliberately obtuse. Who but someone who’s trying to take away the dignity of others would dispute that dignity is obviously related to things like the pursuit of happiness, the freedom to speak your mind, the freedom to keep the government out of your house, etc. Caring about rights without caring about dignity doesn’t even seem coherent to me. Rosen just takes it for granted that “constitutional text, history, and tradition” are more important than the social experience of actual human beings. That’s something you have to insincerely say was inspiring to get the editors off your ass. The Atlantic has to strike a delicate balance between trolling everybody and not offending them so much they stop reading.
What’s his problem, anyway?
By rooting the right to dignity in a synthesis of the textually enumerated rights of equality and liberty, Kennedy laid the groundwork for judges to review laws that inflicted dignitary harm with skepticism, regardless of proof of intentional animus and regardless of whether the victim of discrimination was considered a “suspect class.”
Only a complete dickhead could describe this as bad. I judge one of our nation’s leading legal commentators to be a complete dickhead. What he’s saying in plain English is that it’s bad if judges are supposed to think about whether laws are hurting people’s dignity in reality, no matter who they are and how innocent the person offending them claims to be. For him, we should make a very specific list of “protected” groups and only do something about affronts to their dignity when the persong disrespecting them “really means it.” He’s saying that we shouldn’t recognize institutionalized oppression, on principle. It’s exactly the same as any other white person who can’t recognize racism if it’s not wearing robes and a hood. It’s some well-obfuscated bullshit.
But in discussing the dignitary interest that emerges from the equality and liberty clauses, all of these scholars relied on the same highly abstract penumbral reasoning that had proven so controversial in the cases leading up to Roe v. Wade. In other words, the kind of liberties that the Framers had in mind when they framed the Fourth Amendment (the liberty of the home) were very different, and far more specific, than the broad right to be free to define your own identity without being demeaned by the state or by fellow citizens that Kennedy recognized in Lawrence.
The most important part of the argument is always the implicit premise they try to slip by you. He hasn’t done anything to justify the assumption that we should give a shit about the Framer’s intent when deciding how to arrange our daily lives. They were a bunch of slave-holding, genocidal rapists. They had bad intentions in many cases. The implications of “let’s stick to the Framer’s intent” are terrifying when you really think about it, if you’re black. How could the Framer’s intent matter as a reason not to recognize dignity, but not matter when it comes to slavery? Can someone spell out the principle that separates those cases?
Given the obvious racism of the United States, the simplest explanation is that conservative people who love the Framer’s intent simply prefer white supremacy. More and more, I see that a big part of the problem is allowing the pretense of their good intentions to go unchallenged. After Dylan Roof, it’s harder and harder to accept the good intentions of a lot of people. Everyone’s denial lets them continue to operate.
This is a sophisticated move:
Since these two arguments—moral disapproval or preserving tradition—are the real reasons most voters have for supporting gay marriage bans, opponents of gay marriage were forced to offer implausible reasons—such as promoting “responsible procreation” by straight people—which, as Justice Kagan’s questioning suggested, are hard to credit because they are essentially made up for the purposes of litigation.
He knows his audience actually supports gay marriage and looks down on homophobes. He gains credibility with them by seeming to speak frankly. He’s only saying something completely obvious to everyone, though. The point is to get people to be happy about gay marriage while dirtying the concept of human dignity for them. In the future, the audience is supposed shut down when they hear appeals to dignity because they remember some clever article about why dignity is a slippery slope.
And down the line, the right to dignity—now celebrated by liberals for what it means to gay rights—could ultimately produce other decisions in unrelated cases that they would not be so quick to celebrate. In the McDonald case, striking down gun possession laws under the Second Amendment, Justice Scalia recognized a dignitary interest attached to the right to bear arms. “[T]he conceptual core of the liberty clause … pertains to … [an individual’s] [s]elf-determination, … dignity [or] respect,” he wrote.
I’m pretty sure the Black Panther Party for Self Defense (against people like Dylan Roof), target of gun control legislation, agrees with Scalia about the importance of fierce weapons to dignity. I thought the Framers said the same thing? Certainly America recognizes the concept of deterrence in other contexts. I appreciate that he pointed out that liberals aren’t unambiguous friends of dignity, either.
If dignity is defined so elastically, then conservatives judges might invoke it to strike down not only gun-control laws, but also other progressive legislation. Libertarian groups invoked the “sweet-mystery-of-life” my language in Casey to argue that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance. In the future, cigarette smokers might argue that anti-smoking bans violate their ability to create an individual identity. And conservative Christian wedding photographers could claim that anti-discrimination laws compelling them to photograph gay weddings violate their dignity and ability to define themselves as conservative Christians. What courts would do when confronted with the clashing dignitary rights of the religious wedding photographer and the gay couple, or the hunter and the victim of gun violence, is anyone’s guess, because dignity is such an abstract concept that its boundaries are difficult to discern.
The beauty of dignity being a broad concept means that prioritizing it turns you into an anti-patriarchal vegan anarchist or something. Catastrophic losses for shareholders.
It’s taken for granted that the libertarians are wrong that being forced to transfer money to a private corporation is an affront to a person’s dignity and autonomy. The law very explicitly does not use tax money to provide medical care. He doesn’t want the reader to think about health insurance companies too much. Presumably Rosen doesn’t favor an expansive interpretation of the General Welfare Clause.
Tobacco has significance to the identity of a bunch of people we tried to exterminate, actually. The arrogance is just amazing. He takes it for granted that it would be legitimate for the government to ban smoking altogether. He knows that the Framers intended there to be slaves on tobacco plantations, right?
It’s not clear to me what scenario he’s imagining in which hunters and victim of gun violence come into conflict. Which party would be claiming their dignity was being violated. I can say that I doubt Rosen understands what might be legitimate about victims of gun violence asking people not to carry guns around everywhere trying to look badass.
What Rosen has intuited but can’t honestly express is that people think getting ordered around is an affront to their dignity.
Upton Sinclair: “It is difficult to get a man to understand something, when his salary depends on his not understanding it.”