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Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011), available at SSRN.

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 20th century, 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.

From this perspective we can see today’s dignity tsunami and the prospects of a dignity-based reform of the penal state as a second phase of a process that began in the 1940s and reached the completion of its first phase in the 1970s.  Much of this first wave in US constitutional law took place during the Warren Court and the first (and more liberal) part of the Burger Court.  Professor Henry argues that dignity then went into a “period of hibernation during the Burger and Rehnquist Courts.” The second wave that is emerging today during the Roberts Court reflects a significant shift in the kind of dignity being emphasized.

The most recent cases reflect what Henry describes as “personal integrity as dignity.” This line also has origins in classical thought such as Aristotle’s virtue ethics, and has contemporary expounders of “capabilities theory” like philosopher Martha Nussbaum. At its core, dignity as integrity names human excellence as expressed through the virtuousness of particular actors in conditions of great adversity, but also negatively at moments when “people who become vulnerable to their circumstances, express unharnessed appetites, and expose their bodily nakedness or mental fragility.”  This means that every person, as a human, is capable of expressing human excellence or virtue in the most exalted forms, even in bearing the quotidian burdens of life and death.

Henry’s “dignity as personal integrity” offers the most exciting foundation for a renewed constitutional attack on America’s penal state in half a century. Recognition of this dignity means that people should be protected against those actions which would fatefully compromise this capacity, or “disintegrate” them, (to take up Professor Henry’s artful term).  Typically, these actions are ones taken by the police and prison state.  For example, in a Fourth Amendment case, Michigan v. Hudson, Justice Scalia (in an opinion for the Court) explained the constitutional significance of the common law “knock and announce” rule (by which police must announce themselves and seek entry even when lawfully entitled to enter, before forcefully entering absent exigent circumstances) in terms that describe this kind of dignity rather precisely as protecting the individual’s dignity by affording “the opportunity to collect oneself before answering the door.”

Professor Henry suggests that recent cases also sound in a fifth sense of dignity, “dignity as collective virtue,” that is the collective side of “dignity as personal integrity.”  Those exercises of power, or even individual choices, that would risk the disintegration of a person (and thus the loss of their dignity as personal integrity) would conversely expose the collective or community imposing or permitting that loss to the judgment of being indecent, inhuman, or uncivilized.  This notion of dignity has been visible in a series of recent 8th Amendment decisions in which the Court has ruled out certain punishments for juveniles, including the death penalty and life imprisonment without parole for a non-homicide crime,. Perhaps the most significant recent invocation of this notion of dignity as decency is the Brown v. Plata decision finding that California’s chronically overcrowded and medically under-resourced prisons had created a risk of suffering equivalent to torture, one which was “incompatible with the concept of human dignity and has no place in a civilized society,” and ordering the virtual end of mass incarceration policies in the state that helped launch mass incarceration.

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Cite as: Jonathan Simon, Dignity Is Coming, JOTWELL (December 7, 2012) (reviewing Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011), available at SSRN),