A CONSTITUTIONAL RIGHT TO “DIGNITY” [More Liberal PC Garbage Alert]

Instapundit ^ | 7/6/15 | Elizabeth Price Foley

[markomalley]

A CONSTITUTIONAL RIGHT TO “DIGNITY”: Jonathan Turley has an intriguing oped in the Washington Post, discussing why Justice Kennedy’s majority opinion in the same-sex marriage case, Obergefell v. Hodges, may portend a much broader and more nefarious right to “dignity”:

In reality, he has been building to this moment for years, culminating in what might now be called a right to dignity. In his 1992 Casey decision, he upheldRoe v. Wade on the basis of “personal dignity and autonomy [that] are central to the liberty protected by the Fourteenth Amendment.” Kennedy wove this concept of protected dignity through a series of cases, from gay rights to prison lawsuits, including his historic 2003 Lawrence decision striking down the criminalization of homosexuality. These rulings on liberty peaked withObergefell, which he described as an effort of the petitioners to secure “equal dignity in the eyes of the law.” He used the word “dignity” almost a dozen times in his decision and laid down a jurisprudential haymaker: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” . . .

Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex. Which relationships are sufficiently dignified to warrant protection? What about couples who do not wish to marry but cohabitate? What about polyamorous families, who are less accepted by public opinion but are perhaps no less exemplary when it comes to, in Kennedy’s words on marriage, “the highest ideals of love, fidelity, devotion, sacrifice, and family”? The justice does not specify.

Nor could they specify, even if they wanted to (which they don’t). The progressives have long dreamed of constitutionalizing a right to “dignity,” precisely because it’s so amorphous. In many ways, Turley’s piece echoes a longer recent piece by Jeffrey Rosen in the Atlantic explaining the vast, subjective possibilities it offers for progressive judges and its dangerous incompatibility with the First Amendment:

I won’t rehearse here the objections to reading the text and history of the Constitution at such a high level of generality; with this approach, the connections to the specific concerns that animated the framers is hard to discern. Suffice it to say that Justice Louis Brandeis, the greatest defender of the right to privacy in U.S. history, originally tried to persuade courts to recognize a new right to dignity, after confessing that American law, unlike Roman and European law, had not, traditionally protected offenses against honor and dignity.

But, as Neal Richards demonstrates in Intellectual Privacy, Brandeis changed his mind about the wisdom of constitutionalizing a right to dignity—defined as the right to restrain the press from publishing truthful but embarrassing information about celebrities—after concluding that it clashed with the First Amendment guarantees of free press and free expression. Instead, Brandeis came to embrace a more carefully defined notion of intellectual privacy and freedom of thought and belief, more closely rooted in the text of the First Amendment itself.

In the ultimate irony, the progressives so excited by a right to dignity are the ones have intellectually led the charge against recognition of economic liberties, such as the right to contract, exemplified in cases such as Lochner v. New York (1905), on grounds that they are too subjective. There is far more substance and historical/founding era support for a right to contract than a right to dignity, but of course we all know the progressives don’t care about being consistent or original meaning; it’s only the ends that matter.

[The Ghost of FReepers Past]

Actually I do not think we are in that much disagreement.

Thomas: “It can be kept or given away by the individual and the individual alone.”

That is the same thing. In essence the individual is the keeper of their own dignity. It can be kept of given away. The only difference with what I said is that I said we start neutral. Thomas says we start positive and can lose it. Both ways lay responsibility for it at the individual, not the government or other people.

[Sherman Logan]

By one of the definitions of “integrity,” one can have total integrity while being completely evil.

[MortMan]

Respect is earned.

Dignity is supplied by the individual themselves. It is the bearing that comes with self-respect. It cannot be taken or denigrated by another - even ridicule in the face of dignity does not lessen the dignity being displayed.

[Personal Responsibility]

“The only difference with what I said is that I said we start neutral. “

Agreed this is the crux of the difference. I agree with Thomas.