American Dignity and Healthcare Reform
Rao, Neomi, Harvard Journal of Law & Public Policy
The concept of human dignity provides a useful reference point for evaluating American exceptionalism in the context of welfare rights. Since World War II, human dignity has emerged as the preeminent value in many modern constitutions and various human rights documents. (1) Particularly in countries that have extensive welfare states, dignity is often about being part of the community, being protected and provided for by the government. (2) In America, however, political and legal discourse link dignity with individual rights and freedom from interference by the State. (3) In this short Essay I explain how different concepts of dignity reflect fundamental disagreements about welfare rights and highlight aspects of American exceptionalism. The traditional American conception of human dignity may resist welfare rights, as can be seen in the current debate about whether and how government should expand healthcare coverage.
I. HUMAN DIGNITY AND WELFARE RIGHTS
There are a number of different conceptions of dignity, (4) but one understanding of dignity associates this value with social and welfare rights on the grounds that protection and support for human dignity require a certain minimum standard of living, including housing, healthcare, education, and a clean environment. In this view, a person cannot meet the conditions of dignity without certain basic goods. It follows that the community, acting through the State, must provide these essentials for those who are unable or unwilling. (5)
Dignity as a positive or substantive entitlement to certain goods has been elevated to a constitutional principle or even a right in many countries. (6) Courts have sometimes sought to enforce these welfare and dignity rights, with mixed practical results. As the South African Supreme Court noted, "[t]here can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied those who have no food, clothing or shelter." (7) Similarly, the Hungarian Constitutional Court explained that the constitutional guarantee of social security "entails the obligation of the State to secure a minimum livelihood through all of the welfare benefits necessary for the realisation of the right to human dignity." (8) These decisions are representative of a widespread understanding that welfare goods are a basic right in part because they are a prerequisite for dignity.
These constitutional (not policy) decisions hold that freedom, equality, and human dignity require removing the conditions of poverty and ensuring a certain social welfare minimum. Second-generation economic and cultural rights are distinct from basic political freedoms and pertain to the alleviation of poverty and greater equality of social conditions. These rights reflect a strongly communitarian conception of human dignity as being cared for and protected by the government. (9) A person's dignity depends on being recognized as part of the political and social community and membership in the community includes enjoying a certain standard of living, with state assistance if necessary.
II. AMERICAN DIGNITY
The positive, communitarian dignity at the heart of the welfare state is not the prevailing one in the United States. In American political and legal discourse, dignity is primarily associated with individual rights, a classical liberal understanding of freedom from interference. As John Stuart Mill said, this is the freedom of "pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs...." (10) From this liberal perspective, the inherent dignity of each individual requires being left alone by the State as much as possible. This inherent dignity emphasizes human agency and overlaps with familiar values of liberty and autonomy.
As a matter of constitutional law, the U.S. Supreme Court sometimes refers to human dignity, usually alongside negative rights, in part because our Constitution is a charter of negative rights and liberties. …