Dignity and America’s Multiple Constitutional Traditions

• In Event: Resistance & Mobilization in Constitutional Development: Potentials & Pitfalls

Abstract

Underpinning the United States Supreme Court's 2015 decision in Obergefell v. Hodges, finding a constitutional right for same-sex couples to marry, was a jurisprudence of “equal dignity” (Yoshino 2015; Tribe 2015; Joshi 2015). Developed over the previous three decades, this body of law defined and interwove multiple threads of dignitarian reasoning (Ewing 2018). Remarkably, though, during this period the emphasis by successive majorities on dignity went largely unchallenged by the Court's dissenters. That is, until Obergefell, which featured multiple opinions contesting both the majority's use of dignity and its putative place in American constitutional law. Just as significant, these dissents sought to reclaim rather than reject the language of dignity, tracing a very different story through American law and history than that offered by Justice Kennedy's majority opinion.

Using this disagreement as a point of departure, this paper argues that dignity serves as a lens—at once revelatory and obscuring—through which the American constitutional tradition is rendered comprehensible. But far from speaking univocally, dignity supports multiple constitutional traditions that exist in considerable tension with one another. Writing for the majority in Obergefell, Kennedy cast dignity as the value underlying and joining the constitutional commitments to liberty and equality. Dignity, on this account, denoted a fundamental aspect of democratic citizenship that demanded both equal standing and decisional autonomy in matters of self-determination and self-definition. Crucially, this foundation loosened the requirement, previously stressed in the Court’s fundamental rights jurisprudence, that rights claims be deeply rooted in the American legal tradition. Accordingly, this argument entailed a decisive though unacknowledged departure from the conception of dignity employed previously by the Court, a point seized on by the dissenters. But rather than recognize the jurisprudential evolution wrought by the majority opinion, the dissenting justices focused their criticism on the definition of dignity away from which the Court was moving. In so doing, they outlined a markedly different understanding of rights and legitimate constitutional governance. According to this view, dignity was the value for whose protection government existed but which government could not alter. Far from a ground of democratic citizenship, dignity in this account was the basis of natural rights that properly lay beyond government’s reach. This argument reached its apotheosis in Justice Thomas’s provocative claim that, “Slaves did not lose their dignity [] because the government allowed them to be enslaved.” After constructing the divergent constitutional traditions contemplated by these opinions, I argue that the contours of their respective constitutional visions bear heavily on dignity's future as a jurisprudential touchstone, pointing towards futures as different as the pasts they depict.

Author

• Connor Ewing, University of Toronto