The Politics of Constitutional Dignity Jurisprudence

This Article traces the politics of (human) dignity in US constitutional law. It reveals that the notion has undergone a conservative shift, which has resulted from Supreme Court Justices increasingly unleashing dignity’s dormant conservative potential. Legal scholars arguing for prominently including the notion in constitutional jurisprudence reflect the belief that adopting the language of dignity would push the Supreme Court to be more sensitive to progressive political demands. This progressive constitutional dignity optimism is historically plausible yet conceptually misguided. It is historically plausible considering the legacy of constitutional dignity in previous opinions of the Court. As the Article expounds, the Court’s dignity jurisprudence, shaped primarily by three Justices—Murphy, Brennan, and Kennedy—regularly strengthened the progressive side of the political divide. However, the progressive optimism is conceptually misguided because it overlooks dignity’s considerable conservative potential. The link between progressive politics and constitutional dignity appears more coincidental than necessary, and the intellectual history of the term reveals a highly ambiguous notion, attractive to politics of various stripes. Similarly, comparative examples, drawn from France and Germany, demonstrate how dignity’s political orientation is unclear at best, and reactionary at worst. Thus, the Article suggests that the traditional rejection of dignity on originalist grounds is not likely to preclude future employment of the term by conservative Supreme Court Justices. On the contrary, the political allegiance of constitutional dignity has already seen a shift, as the term is now increasingly used to strengthen conservative political claims. The Article demonstrates how conservative Justices have appropriated liberal dignitarian language in at least three distinct areas of constitutional law: criminal justice, abortion, and racial equality. There are good reasons to expect conservative judges and jurists to do so ever more forcefully in the future.