Academic journal article Albany Law Review

Litigating Dignity: A Human Rights Framework

Academic journal article Albany Law Review

Litigating Dignity: A Human Rights Framework

Article excerpt

I. INTRODUCTION

Prompted by the horrors of World War II, the General Assembly of the United Nations proclaimed the hortatory Universal Declaration of Human Rights ("UDHR"). (1) Among other guarantees, the UDHR speaks to the right to human dignity, promising that "[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." (2) In the years that followed the issuance of the UDHR, the notion of a protected right to personal dignity began to appear in the jurisprudence of state and federal courts in the United States. The United States Supreme Court has even adopted this term when discussing "the Eighth Amendment prohibition on cruel and unusual punishment; the Fourth Amendment protection against unlawful searches and seizures; the Fourteenth and Fifth Amendment rights to be free from discrimination, and the Ninth and Fourteenth Amendment rights to make one's own decisions on procreation." (3) Dignity also appears in both the text of some state constitutions and, as I will explore more thoroughly below, in other non-constitutional state court jurisprudence.

In addition to its appearance in domestic litigation, the notion of a right to dignity has assumed a prominent role in many international human rights instruments enacted since the UDHR, as well as in the laws of other nations. For example, the importance of personal dignity appears frequently in the Convention on the Rights of Persons with Disabilities ("CRPD") and ties its signatories' commitment "to promote respect for the inherent dignity of all persons with disabilities" (4) with their obligation to promote, among other things, access to education and healthcare. (5) Dignity is emphasized in the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), which draws an explicit link between the UDHR's commitment to dignity (6) and the Convention's goal of ending discrimination against women. (7) The significance of human dignity is also emphasized in the constitutive documents of many countries, including Germany, (8) South Africa, (9) and Israel, (10) and in several regional human rights instruments. (11)

Interestingly, despite the parallel development of the dignity concept in the domestic and international realms, only rarely have they explicitly overlapped. That is, only on rare occasions have United States courts--state, federal, or territorial--considered international conceptions of "dignity," even those embodied in the human rights instruments signed and ratified by the United States, when discussing the role that dignitary interests have to play in resolving the claims before them. In recent years, scholars and human rights advocates have sought to amplify this connection as part of a broader attempt to situate the resolution of domestic legal claims within an international human rights framework. Particular attention has been paid to the potential for using human rights principles to inform state constitutional interpretation, given the frequent parallels between the rights guaranteed in international instruments and the positive rights provisions in some state constitutions. Thus, scholars have argued for consideration of international standards when, for example, state courts are interpreting constitutional guarantees for welfare or education. (12)

The connection between international guarantees and domestic rights is particularly pronounced in the context of dignity claims because of their common source in the post-War discourse and in the founding documents of the United Nations. As Professor Vicki C. Jackson has explained, the dignity provisions in the constitutions of Montana and Puerto Rico draw both directly and indirectly from the text of UDHR for their foundational principles. (13) Thus, she contends that "students of transnational human rights discourse would do well ... to pay attention to the multiple fora for the development, diffusion, and articulation of foundational concepts of human dignity. …

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