Justice Kennedy on Dignity

I. Introduction

Appeals to dignity are a staple of political and social discourse in the United States, as they are in most other countries. Interestingly, dignity is invoked frequently in judicial decisions as well. Over the years, there have been numerous references to dignity in the decisions of the U.S. Supreme Court.^[1] Dignity is invoked as a constitutional norm or, at least, as a legitimate value through which to understand and vindicate a constitutional norm. Sometimes it is not quite clear to which the appeal is being made, but appeal is made often in dissenting or concurring opinions. And, in the recent past, it also played a prominent role in majority opinions.

It is not unusual for dignity to occupy a place in a constitutional text. Many national constitutions spanning across the geographic and cultural divide enshrine dignity as a constitutional value or principle.^[2] Some national constitutions even claim that dignity is the primary purpose for which the state itself is established and an organizing principle of all other constitutional values or principles. The Constitution of Greece, for example, provides that “[r]espect and protection of the value of the human being constitute the primary obligations of the State.”^[3] The Constitution of Peru echoes a similar sentiment, providing that “[t]he defense of the human person and respect for his dignity are the supreme purpose of society and the State.”^[4] And so does the Constitution of the Dominican Republic.^[5] The German Basic Law,^[6] in its very first article, announces that “human dignity [is] inviolable,” and it is “the duty of all state authority” to “respect and protect it.”^[7] The respective judicial tribunals of several of these countries have invoked these provisions in various cases that raised fundamental constitutional issues.

What makes the reference to dignity in the context of constitutional adjudication in the United States interesting, and puzzling for some, is that the Federal Constitution does not refer to dignity at all.^[8] Indeed, dissenters on the Supreme Court sometimes make that point whenever the majority invokes dignity in constitutional adjudication. Chief Justice Roberts was, for example, quick to remind Justice Kennedy in Obergefell v. Hodges that there is no such thing as a dignity clause of the Constitution.^[9] After observing that the U.S. Constitution (all 7,591 words of it) does not mention dignity, a sympathetic commentator noted that Justice Kennedy “penciled it in.”^[10]

What precisely did Justice Kennedy pencil in? Dignity as a constitutional right? Dignity as a value through which a constitutional right is examined or analyzed? And exactly what are the relevant and practical differences between a constitutional value and a constitutional right? When legal commentators think of a “penciled in” constitutional norm in the American constitutional scheme, “privacy” is perhaps one that readily comes to mind. During his confirmation hearing for a seat on the U.S. Supreme Court, Justice Kennedy was asked by Senator Patrick Leahy of Vermont whether privacy was a right or a value and what the difference was between the two. Justice Kennedy avoided answering the second part of the question (the difference between a value and a right) altogether, but he responded to the first (whether privacy is a value or a right) by declaring that he was not sure.^[11] But then he immediately added the following: “[T]he concept of liberty in the due process clause is quite expansive, quite sufficient, to protect the values of privacy.”^[12] This seems to suggest that to the extent that there is a difference between a right and a value, Justice Kennedy thinks that perhaps privacy in the American constitutional tradition should best be understood as belonging to the value category. Justice Kennedy was clearly cautious about declaring outright that privacy was not a constitutional right. He had reason to be cautious given the fact that he was nominated for that seat because the Senate had rejected one of the nominees for that seat because that nominee was thought to be hostile to newly recognized “rights” such as privacy.^[13] If privacy is a value rather than a constitutional right, is dignity another such value?

Three distinct but interrelated questions arise in relation to Justice Kennedy’s frequent invocation of dignity in his opinions. First, what precisely is the status of dignity in the constitutional scheme? A value or a right? Second, if Justice Kennedy thinks it is a value, as appears to be the case, is it a background value through which many constitutional rights are examined and appraised or is it a value that is attached to specific constitutional provisions as he thought privacy was? And how precisely is it linked to those provisions? Third, whatever its constitutional status, what precisely does dignity mean? What does it add to established constitutional terms? After all, it was Justice Kennedy himself who opined, during the Senate hearing considering his nomination, thusly, “[S]ometimes by using some word that is not in the Constitution, we almost create more uncertainties than we solve.”^[14] Does his use of dignity solve or create more uncertainties? This Article will explore the possible answers to these and other related questions.

This Article is organized to facilitate a systematic and orderly inquiry into the role dignity plays in Justice Kennedy’s jurisprudence. Primarily, the views are gleaned from the Justice’s opinions on the Court, but this Article will also refer to speeches, testimonies, and other remarks of the Justice to the extent that those remarks bear on the Justice’s understandings of the notion of human dignity. In the process of giving an account of the Justice’s view of dignity as a constitutional value^[15] or as a means of understanding a constitutional right, this Article claims that there is an organizing principle that ties together the Justice’s views and pronouncements on dignity. This Article asserts and defends the thesis that what Justice Kennedy penciled in is a constitutional norm of dignity as integrity.^[16] In Justice Kennedy’s constitutional jurisprudence, the concept of dignity is enlisted to defend and affirm the integrity of a person, from the most basic (physical integrity) to the most reflective (social integrity) aspects of personhood. Justice Kennedy views humiliation as the extension of cruelty from the physical to the psychological realm of suffering. Dignity is meant to guard against cruelty in all of its dimensions. Viewed this way, “dignity is an existential value,”^[17] invoked to defend the threshold conditions (privileges and immunities) that are necessary for a person to exist as an integral whole.

Seen this way, dignity is not about the ideal of what a person should be or should have. Nor is it about a system of rights sufficient for a fully just society.^[18] Aristotelians talk about such ideas when they associate dignity with human flourishing.^[19] Dignity as integrity is modest in its aspirations and yet more basic and more profound in its concern about what, as a threshold matter, it means to be a person. Bodily integrity is of course the basic human capability that defines personhood, but, as we shall see, a person is not just an embodied being but a psychological and social being as well. A person is who she is partly, perhaps significantly, because of the commitments that she has or relationships that she starts and cultivates. The protection of those commitments and connections, to which we may refer as life projects, is also part of what dignity is enlisted to protect so as to ensure the integrity of the person.

Not only will dignity as integrity enable us to better understand Justice Kennedy’s use of dignity, but, this Article argues, it will also show that the notion of dignity can function as a universal standard through which we will do more than “help to reduce the amount of cruelty and unmerited suffering in the world.”^[20] Indeed, as we shall see, Justice Kennedy seems to have understood dignity as having such universal aspiration. That seems to be his point in Obergefell when he invoked dignity to affirm the right to marry. He explained the importance of marriage not in parochial terms, as an American or Western institution, but one that has been fundamental across cultures and times.^[21]

Here is a brief account of the structure for the rest of this Article. Part II explains why Justice Kennedy, among all the Justices who have served on the Supreme Court and who have invoked dignity at one or another time, was chosen as the subject of inquiry. The part gives several reasons why Justice Kennedy’s use of dignity is significant enough both as a substantive and conceptual matter to merit a close look. Part III defines or specifies the usages of dignity that are of direct interest to the inquiry here. On the Supreme Court, the notion of dignity has been invoked to capture a range of relationships and statuses—including the idea of dignity-as-rank. In this Article, the notion of dignity that is of interest is human dignity, the notion that humans have certain dignity in virtue of their humanity. That is, dignity in this sense is understood as being inherent to personhood itself. Justice Kennedy often refers to “the inherent dignity” of a person.

In Part IV, this Article gives a short primer of a theory of human dignity—dignity as integrity—that this Article claims and defends in subsequent parts as one, and perhaps the best, way of understanding and organizing Justice Kennedy’s views and usages of dignity. Justice Kennedy’s jurisprudence on dignity, this Article argues, is about guarding against the debasement of personhood in its various dimensions—from the most basic (physical integrity) to the most reflective (social integrity)^[22] dimensions of the person.

Part V will briefly explore the status of dignity as a constitutional norm. The part shows that, for Justice Kennedy, dignity is a constitutional value not a constitutional right. In that sense, what Justice Kennedy “penciled in” is a constitutional value akin to “privacy” that the Supreme Court recognized in the mid-1960s as a proper constitutional value.^[23]

In Part VI, this Article shows how Justice Kennedy uses dignity as a means of protecting the physical integrity of the person. And it does so through a close examination of Justice Kennedy’s use of dignity in relation to capital punishment (Eighth Amendment), abortion (Fourteenth Amendment), and privacy (Fourth Amendment). Part VII then proceeds to examine in detail Justice Kennedy’s use of dignity as a means of protecting the integrity of the social person. It is here where Justice Kennedy’s use of dignity is more robust and more substantive. His view of dignity as a means of protecting the integrity of the social person—the person with relationships, commitments, and life plans—is developed through his majority opinions involving gay rights and, to some extent, issues involving race. Justice Kennedy’s use of dignity here is a way of highlighting the constitutive dimension of social commitments and the humiliation that ensues when those commitments and life plans are regarded and treated as if they were not properly human activities, commitments, or inclinations worthy of respect.

In Part VIII, this Article argues that even though human dignity is said to be inherent in the person, there is a sense in which a dignitary interest evolves. Justice Kennedy’s opinions are mindful of that fact. To the extent that relationships make us who we are, it can only be proper to think of human beings as projects rather than products. Consequently, the notion of dignity, which is meant to set out the existential minimum threshold for the functional capabilities of persons, will be “ever-redeemable.”

Part IX, the concluding part, is a backward glance, a restatement of dignity as integrity, but it also contains brief responses to some challenges that might be raised by critics to some aspects of dignity as integrity.

II. Why Justice Kennedy?

Over the years, several Justices on the Court have invoked the idea of dignity to explicate the meaning of this or that constitutional provision.^[24] So, why does Justice Anthony Kennedy’s use of dignity deserve a closer look? There are several reasons. First, Justice Kennedy, who served on the U.S. Supreme Court from 1988 to 2018, invoked dignity more often and more substantively than almost any other Justice who served on the Court (at least in the modern era).^[25]

Second, and perhaps more importantly, Justice Kennedy’s invocation of dignity has become of great interest because he authored important majority opinions where the concept of dignity seemed to have made a difference both to the analysis and to the result. Now, whether the analysis always led logically to the result is a different issue altogether. But Justice Kennedy clearly thought so and one of his colleagues, Justice Alito, tells us that “if there’s anything that Justice Kennedy’s jurisprudence has been dedicated to, it is to the dignity of every single person.”^[26]

Third, although it is sometimes hard to discern the precise meaning he attaches to dignity, his frequent use of the term seems to suggest that he has thought about, and reflected on, the concept and that there is a coherent theme to the role that dignity is assigned to play. At least, that is the starting or working assumption.

Fourth, some commentators have claimed that Justice Kennedy’s use of dignity has put the concept of dignity on more stable and sustainable jurisprudential grounds. Indeed, one sympathetic legal commentator claimed that the phrase “equal dignity” that Justice Kennedy had often invoked, most significantly in Obergefell v. Hodges, was an important jurisprudential innovation capable of advancing our understanding of the relationship between the Equal Protection and Due Processes Clauses of the Fourteenth Amendment of the American Constitution.^[27] Claims of this sort suggest that perhaps Justice Kennedy’s use of “dignity” in constitutional adjudication deserves a closer look. Given the recent decision of the Court in Dobbs, as an institutional matter Justice Kennedy’s jurisprudence might not look stable. But that of course does not speak to another sense of stability: the logic and coherence of the jurisprudential formulation.

Fifth, perhaps it is not accidental that Justices Kennedy, Brennan, and Frank Murphy, the three Justices for whom dignity has played an important role in understanding humanness and its vulnerability to debasement and humiliation, all adhered to the Catholic faith.^[28] The idea of human dignity, the dignity of the human person, has a central place in the teachings of the Catholic Church.^[29] Commentators have speculated that the Justice’s attraction to dignity is likely inspired by the teachings of the Church.^[30] I do not arrive at that conclusion or its opposite. It would, however, not be surprising if it were the case that a central teaching of one’s faith will provide the background assumption for one’s understanding of a constitutional value. Let me add quickly, however, that to claim that the Justice’s view on dignity might be informed by his faith is not also to conclude that his specific applications of dignity are or will be consistent with the views of the Church. In fact, there are several examples where the Justices applying dignity have come to conclusions contrary to the position held by the Church. Justice Brennan’s position on abortion and Justice Kennedy’s view on the rights of homosexuals and on capital punishment are three clear examples.^[31] In this regard, it might be useful to appropriate Dworkin’s distinction between concept and conception.^[32] Dworkin argues that while there might be an agreement about the importance of a particular concept in its abstraction, such as equality or dignity, there might be (and often are) competing conceptions of those concepts. Those competing conceptions might be a result of differences in assessing the relevant empirical data (especially from one era to another era), about the human condition, or about the relevant social and cultural context in which the issues emerge. Here we are dealing with a specific conception of dignity. We might say Justices Brennan, Kennedy, and Murphy agreed with the Church that dignity is an essential attribute of humanness or personhood, but they often disagreed as to how dignity is cashed out in specific circumstances.^[33]

III. Dignity: Specifying the Field of Inquiry

Justices of the U.S. Supreme Court, including Justice Kennedy, have invoked dignity in various ways. Sometimes, dignity is used to refer to rank, whether the rank or status is bestowed on an institution (“dignity of states,”^[34] of the sovereign,^[35] of a profession^[36]) or on an individual. The individual version of dignity-as-rank manifests itself in a couple of ways: as a political and/or a social status. In relation to the former, Justices sometimes refer to the “elevated” status that the “dignity of citizenship”^[37] provides to individuals. In terms of the latter, dignity-as-rank is often used to describe an earned (the dignity in which an individual carries himself/herself) or inherited (the dignity of an Earl) rank.

The dignity-as-rank understandings are very interesting but not of direct interest to this Article. I say “direct,” for they may be of interest if, and when, they shed light on the second notion of dignity (human dignity), which is of primary interest here and explained in the next paragraph. Talk about the dignity of a citizen might be one example of those dignity-as-rank usages that might be enlisted to shed light on the notion of human dignity. Indeed, for some scholars, the dignity of a citizen is precisely the process through which human dignity is often vindicated. Citizenship is the “right to have rights,” as Hannah Arendt referred to it^[38] or as the U.S. Supreme Court put it in Trop v. Dulles.^[39] The right to belong is as much a question of dignity as is the right to physical integrity.^[40] As Arendt eloquently put it in relation to statelessness, a condition with which she lived for eighteen years, a stateless person is not merely expelled from one country and has no country to which to go, he is in fact expelled from humanity.^[41] So, there are times when dignity-as-rank appears to converge with human dignity, or at least seems to be suggestive of how one should understand human dignity.^[42] In such a situation, dignity-as-rank would be a relevant datum for our inquiry into human dignity.

One could perhaps also argue that Justice Kennedy’s use of dignity to argue for the respect of American States^[43] would shed light on the notion of human dignity. The dignity that Justice Kennedy is applying to state sovereignty is akin to human dignity to the extent that both are about the minimum conditions necessary for the entity to be described as such an entity, as a sovereign entity or as a person. However, that analogy might be a bit stretched. At any rate, the inquiry here is about Justice Kennedy’s use of dignity that he applies to individuals that he claims is “inherent” rather than an achieved or granted rank and whether there is a theme that ties his uses of dignity together.

What I shall do in the next part is briefly set out a theory of human dignity that I argue will enable us to understand and organize Justice Kennedy’s uses of dignity, both in his opinions and statements and testimonies outside the Court. I shall then proceed in subsequent parts to examine in detail Justice Kennedy’s opinions and statements that rely on dignity as a constitutional value.

IV. Dignity as Integrity: A Primer^[44]

Integrity is often used to describe one of two circumstances. It is invoked to refer to a person’s adherence to a moral or ethical code. Thus, an individual will be said to have integrity to the extent that he or she leads his or her life in strict compliance with moral or ethical code. We may refer to this as moral integrity. A person with moral integrity is contrasted with people who are corrupt, hypocritical, self-deceiving, weak-willed, and the like.^[45] The respect we show a person with moral integrity is what Stephen Darwall would refer to as “appraisal respect.” We accord the respect as a result of our positive appraisal of him as a person or of his specific pursuits.^[46] The notion of “respect for integrity” we mean to invoke when we talk about human dignity is a different one. Human dignity is the respect we show to people in virtue of their humanity, regardless of how we think that that humanity is derived or sourced. This is what Darwall would call “recognition respect.”^[47] Recognition respect is not earned; it is simply granted in virtue of the fact that the target or recipient of recognition is a human being.^[48]

The second sense of integrity, which is directly related to personhood, provides us with a way to understand the concept of dignity as it is invoked in relation to both interpersonal and institutional life. Integrity here refers to the condition of wholeness or completeness.^[49] We might refer to this as integrity as wholeness. First, the integrity of a person in this sense (personhood) has several dimensions. At the most basic level, a person is a physical (embodied) and psychological^[50] being. Like other animals, humans are “centered” within the cast of their bodies. But a person is of course much more than that. She is also a social being with commitments, relationships, and life plans, each of which makes her the person she is. A person develops her central identities and commitments through interaction with other human beings.^[51] Personhood is in large measure constituted socially.^[52] Now, the social dimension of the individual might not be or may not seem to be as stable as the physical dimension, but it is no less central to personhood.

Integrity as wholeness requires that both the embodied (basic) and social (reflective) self are protected from serious curtailment or the threat of curtailment that would lead to a life of “covering,”^[53] a life of denial of who one is. Indignity occurs when the person is diminished or debased in such a way that one or another aspects of what makes the person who she is are either extinguished or seriously curtailed. An example of the former is when the very right to life is threatened. Examples of the latter arise in the context when a person is not treated as having equal moral worth (equal protection) or when an important aspect of what makes one a fully social human being is denied or being denominated as less than a legitimate human activity or endeavor. Criminalizing gay relationships denominates those relationships as not being proper human inclinations or commitments. To the extent that an important aspect of one’s being is unrecognized, the person is not recognized as such.

Second, integrity understood as wholeness is not atomistic and individualistic. It is, as I noted above, social in the sense that one’s identity becomes “meaningful only in the context of human interaction.”^[54] We are who we are as human beings because we belong and are able to form relationships and commitments and those commitments and relationships are recognized by social others. Recognition by others is a fundamental part of what it means to be human.^[55]

To repeat: a person is not merely a physical body but an entity that develops its central identities and commitments through interaction with other human beings.^[56] I shall expand upon this later in this Article when I examine Justice Kennedy’s view of dignity in relation to gay rights cases.

At any rate, when we talk about protecting the dignity of a person or, conversely, when we worry that a person has been subjected to indignities, the point of departure seems to be a notion of wholeness or completeness (as a threshold matter) of a person that has been affirmed or undermined.^[57] And protecting this self is the baseline (the necessary starting point) from which a human being can flourish with human excellence.^[58] As George Kateb has argued, viewed this way dignity is an “existential value.”^[59] When the integrity of the person is at stake, personhood is at stake in some manner—diminished if not extinguished. On this account, indignity is the “effacement” of personhood.

I argue that the opinions of Justice Kennedy—whether majority, concurring, or dissenting—where dignity is invoked might be best understood as tying the idea of dignity to the notion of personhood, to the idea of recognition. Justice Brennan, whose view of dignity I hope to explore in another article, explicitly held that “[t]he integrity of the individual’s person is a cherished [constitutional] value of our society.”^[60] And that seems to be the general tenor of Justice Kennedy’s position as well. It is true, as I hope to show in another work, that there are differences between the two as to the essential ingredients for personhood,^[61] but there does seem to be agreement that dignity is about the protection and recognition of personhood.

At times, it is the threat to the physical integrity of the person (such as torture, or capital punishment for minors or individuals with mental disability) that required Justice Kennedy to invoke dignity as a way of disapproving of the State act or action. At other times, it is the psychological and social dimensions of personhood (denial of equal rights to gays and racial minorities) that were at stake when the Justice concluded that the relevant individuals have been subjected to indignity. In Justice Kennedy’s jurisprudence, dignity is invoked to protect a person against cruelty, which might be inflicted on the embodied self or on the social self. Justice Kennedy views humiliation as the extension of cruelty from the physical to the social or psychological self.

V. Justice Kennedy on Dignity as a Constitutional Value

A. Dignity’s Universal Aspiration: Justice Kennedy’s Tentative Move

From the most basic (the embodied self) to the most reflective (whom to love and how to love) aspect of the person, dignity in the hands of Justice Kennedy seems to be invoked to protect personhood itself. Interestingly, this seems to be how the United Nations Human Rights Committee also understood the role of dignity in one of its general comments, General Comment 20.^[62] Although Justice Kennedy invoked dignity mainly in the context of constitutional adjudication, he does signal that dignity is a universal value that nevertheless can be cashed out locally in different ways and through different instruments. He seems to view his use of dignity in the adjudicative context as a way to signal to the world that there is “some . . . underlying unified concept of what human dignity means.”^[63] Part of the inquiry here is to see if there is such a “underlying unified concept,” and if so, what it entails.

So, what would be the defining features of this “underlying unified concept”? Justice Kennedy’s jurisprudence shows that a “unified concept” of human dignity has three attributes. First, it is attached to individuals. Second, it is not earned but inherent in the person. Justice Kennedy uses the word “inherent” often. The idea of “inherence” is not always clear, but for the moment it would suffice to note that it refers to the notion that it is a constituting fact of personhood itself. That constituting fact might be as basic as the embodied self or as reflective as the social dimension of the self, the one that chooses whom and how to love and whom and how to worship. Treating people inconsistently with this “intrinsic worth” is subjecting them to “indignity.” To think of dignity in terms of intrinsic worth is to understand it as being a property of every human being, as being universal. That is what all international human rights documents assert. To paraphrase Ronald Dworkin in another context, “the domain of [dignity] has no place for passports.”^[64] On this account, dignity is nothing less than what we think it means to be human and what the moral, ethical, and legal obligations are that must exist to sustain humanness and to lay the ground (the minimum threshold) for human flourishing.

Third, it follows from the first two attributes that dignity is a property of all humans. That is, it has a universal dimension. It is in this context that dignity is often referred to as “human dignity.” Justice Kennedy was, of course, not the first Justice on the Court to use dignity in the sense of human dignity. The phrase “human dignity” started appearing in Supreme Court opinions in the 1940s. Justice Frank Murphy was the first to invoke the phrase. The context in which Justice Murphy used the phrase was a time of serious threats to the rights of individuals—the WWII Era—that had become evident in many parts of the globe, including the United States.^[65] In the immediate aftermath of the War, the notion of human dignity played a significant role in the crafting and adoption of international human rights documents.^[66]

Samuel Moyn mentions another context for the emergence of the notion of human dignity around this time, which may be relevant to our discussion later. He refers to that context as “political Catholicism,”^[67] an example of which he argues is the preamble to the Irish Constitution of 1937.^[68] Political Catholicism “sought an alternative to authoritarian and fascist solutions by appealing to individual human dignity in these years.”^[69] This was a time when “human dignity became a major item of Christian [Catholic] political discourse.”^[70] It might be a coincidence, but, as I noted earlier, it is interesting to note that Justice Murphy, who invoked human dignity on several occasions in the defense of the rights of citizens, was an adherent of the Catholic faith.^[71]

So, to recap the observations in this part, the inquiry in this project is about human dignity, not dignity generally. It is how Justice Kennedy invokes human dignity to address what he perceived to be the necessary ingredients for the integrity of the person, for the protection of personhood itself. Justice Kennedy’s dignity has universal aspiration, for it is about what Justice Kennedy claims is “inherent” in the person. On the international level, that view had its first textual endorsement in the Charter of the United Nations, a charter that established the United Nations at the end of WWII. In the Charter, the international community sought to “reaffirm faith in fundamental human rights, [and] in the dignity and worth of the human person.”^[72]

Let me briefly add here that to claim that dignity protects the inherent worth of the person has both logical and political corollaries. The logical dimension endorses Ronald Dworkin’s claim that because each one of us thinks that our life is of intrinsic worth to us, by logical extension we must accept that another human life has the same intrinsic worth, the same objective value. This is one of Dworkin’s two principles of dignity.^[73] No reasonable argument can be advanced that would, as a general matter, show that my life has more objective value than the life of any other human being.^[74] The political corollary holds that we must grant one another the equal objective value of our lives if we are to construct, and live in, a political community that is reasonably peaceful and perhaps minimally democratic. One could read Jürgen Habermas’s theory of dignity in this light.^[75]

B. Dignity as a Constitutional Value: Justice Kennedy v. Justice Brennan

The role of dignity in constitutional discourse in many countries takes three forms. One way in which dignity is enlisted is as a master constitutional norm through which constitutional provisions are understood and constitutional values ordered. The German Basic Law and its elaboration by the Constitutional Court of Germany are good examples of this approach.^[76] The Constitution of Peru seems to view dignity in a similar manner.^[77]

In the United States, the closest to that approach is the oft expressed view of Justice William Brennan of the U.S. Supreme Court. Justice Brennan indicated on more than one occasion that the Constitution was a “sublime oration on the dignity of man,”^[78] “a sparkling vision of the supremacy of the human dignity of every individual.”^[79] Indeed, Justice Brennan asserted that on this point no less authority than James Madison is on his side. In his James Madison Lecture at the New York University School of Law, Justice Brennan observed that for Madison, “the suppression of individuality was the deadly enemy of the spirit, making a mockery of the dignity of man.”^[80] Of course, much depends on what Madison meant on “individuality” and whether that meaning correlates with Justice Brennan’s notion of dignity. However, what matters for our purpose here is that Justice Brennan traces the idea of the centrality of human dignity in the constitutional scheme back to the founding generation.

The idea of a master norm, therefore, suggests that dignity is the normative concept that underlies the rights in the relevant constitutional document. It is through it that specific rights enshrined in that document are understood. Often, dignity is included in the document itself. But there are times when dignity performs the role even when it is not mentioned in the constitutional document. This is clearly the case in relation to Justice Brennan’s invocation of dignity as a constitutional value. In the jurisprudence of some other national courts, the idea of a master norm or value does not only become generative of rights, but it also adds “normative unity” to all those rights.^[81]

A second view treats the role of dignity in constitutional adjudication in a similar way that constitutional preambles are treated in the constitutional schemes of some nations. In some countries, judicial tribunals that are authorized to give authoritative interpretation of national constitutions treat constitutional preambles as background norms that might come in handy when other methods of interpretation do not or cannot explicate the meaning of particular phrases or sections. Sometimes, dignity is explicitly mentioned in the preamble and only in the preamble, making explicit and literal the preambular analogy.

A third, and perhaps a more common way, has been to associate dignity with specific constitutional provisions. Even though there are times when he seems to suggest the first role for dignity, Justice Kennedy generally seems to view the proper role for dignity only in relation to specific constitutional provisions rather than as a master norm that pervades much of the human rights section of the Constitution. Dignity, which Justice Kennedy seems to treat as a constitutional value, rather than a constitutional right, is invoked most often to explore the scope of specifically mentioned constitutional rights such as the liberty and equality of the Fifth and Fourteenth Amendments. As I noted earlier, during the Senate hearing on his nomination for Associate Justice of the Supreme Court, Justice Kennedy was careful to make the point. When he was asked by Senator Patrick Leahy of Vermont whether privacy was a right or a value, he replied that he was not sure, but his subsequent comments indicated that he thought that it was not a right. He attached privacy to liberty. “[T]he concept of liberty in the due process clause,” he notes, “is quite expansive, quite sufficient, to protect the values of privacy.”^[82] And he went on to add, that “sometimes by using some word that is not in the Constitution, we almost create more uncertainties than we solve.”^[83] It appears clear from this observation that Justice Kennedy was reluctant to employ a term not mentioned in the Constitution as a master norm, unconnected to a specific constitutional provision. As he put it at the Senate hearing, “the words of the Constitution must be the beginning of our inquiry.”^[84] And, of course, dignity is not one of those words. So, we must start from a term found in the Constitution as a point of departure to harness the value of dignity.

But as I noted earlier, there are times when Justice Kennedy seemed to advance a view similar to that of Justice Brennan’s. In Roper v. Simmons, for example, he wrote that the Constitution “sets forth, and rests upon . . . broad provisions to secure individual freedom and preserve human dignity.”^[85] Freedom and dignity, he seems to suggest, animate the Constitution.^[86] Note, however, how he expressed the relationship between dignity and freedom on the one hand and the specific provisions of the Constitution on the other hand. He does not say that dignity and freedom are broad enough to help us understand the specific constitutional provisions, but rather specific constitutional provisions are broad enough to accommodate dignity and freedom.

He expressed similar views at his Supreme Court confirmation hearings. He told senators that when examining constitutional rights claims that have not been addressed before by the Court what he would do is “look to the concepts of individuality and liberty and dignity that those who drafted the Constitution understood.”^[87] His view here is interesting. He lists dignity separately from liberty and individuality, although, as we shall see later, he often invokes dignity as a means of understanding liberty and often equality. Indeed, in Justice Kennedy’s hands, the scope of the constitutional rights of liberty and equality and the relationships between the two are explicated through the constitutional value of dignity. The role of liberty and equality in the safeguarding of personhood itself are assessed through the value of dignity.

In the main, therefore, Justice Kennedy seems to have associated dignity with certain specific constitutional provisions, not as a background norm animating all constitutional provisions, at least constitutional rights. For example, Justice Kennedy has often observed that respect for “dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.”^[88] On matters of associating dignity with the Eighth Amendment, Justice Kennedy was clearly not as vigorous as was Justice Brennan, but, as we shall see later, he has argued that dignity must and does play a role in the analysis of what constitutes “cruel and unusual punishment.”^[89] Justice Kennedy has also invoked dignity in relation to issues involving racial and gender discrimination.^[90]

However, Justice Kennedy is perhaps better known for relying on human dignity in relation to sexual orientation and abortion issues than other constitutional questions. While on the Court, Justice Kennedy wrote all majority opinions involving gay rights.^[91] Dignity makes frequent appearances here. At times, dignity is treated as if it were a logical implication of the constitutional rights or norms of equality and/or liberty. At other times, dignity is understood as generative of liberty and equality. And still at other times, dignity is used as a bridge that connects liberty and equality, as a means of understanding the scope of the other.^[92] At any rate, dignity becomes central to Justice Kennedy’s gay rights jurisprudence.^[93] And it is linked to specific constitutional provisions.

Perhaps not surprisingly, Justice Kennedy does not give an extended account of what it means to dignify people or conversely to subject them to indignity. I say “not surprisingly,” because first, judges do not have the luxury to give a detailed and nuanced account of a term. Meaning has to be expressed in the constraints of writing an opinion, where decisions have to be rendered in a limited format and time. Second, there is no one clear account of the meaning of the term within and outside the legal academy from which to draw. Indeed, quite often what one sees is considerable confusion not only within the legal academy but in moral and political philosophy as well as to what dignity means or entails. Third, and perhaps more importantly, in ordinary conversation the term is often taken to have a common sense meaning that is accessible to all. After all, one of the selling points of “dignity” has been that it is assumed that everyone knows what it means or what it stands for. It is this capacity of appearing to have a widely accessible meaning and the belief among many that there is an overlapping consensus about the meaning of the term that have led many to rely on the idea of dignity to attempt to forge a consensus on human rights agreements (as happened with the Universal Declaration of Human Rights drafting committee)^[94] or to bridge differences among groups on opposite sides of an issue, as Justice Kennedy seems to have attempted to do in relation to abortion.^[95]

Indeed, Justice Kennedy’s responses to questions from members of the Senate Judiciary Committee during his Supreme Court nomination hearing makes clear that his notion of dignity is tied to specific constitutional provisions, perhaps unlike what was thought to be Justice Brennan’s view of dignity. Senator Charles (Chuck) Grassley of Iowa made the following observation and then asked Justice Kennedy if he agreed with the statement.

Justice Brennan has characterized the Constitution as being, quote, “pervasively concerned with human dignity,” unquote. From this basic point, he creates a more general judicial function of “enhancing human dignity,” even when it is contrary to the intent of the framers.

The problem with this theory is that every Justice’s concept of human dignity is very personal with the thought process of that individual.^[96]

Justice Kennedy replied: “I would agree.”^[97] It is not quite clear to which part of Grassley’s statement Justice Kennedy agreed. Perhaps it is only to the general idea that Justices should not constitutionalize their private views or to the proposition that one should not rely on concepts that cannot fairly be explicated from existing constitutional rights or provisions. The way Justice Kennedy has subsequently used dignity seems to be consistent with the second version. Justice Kennedy has generally utilized dignity not as a background term but as a term that can shed light on specific constitutionally entrenched terms such as liberty, which are “spacious terms.”^[98] Ironically, it is the “spaciousness” of terms, like “liberty” and “equality,” that are said to accommodate the equally spacious term dignity.

VI. Dignity as Physical Integrity

A. The Notion of Physical Integrity

Whatever else the self may be, it is its body. Bodily integrity is the minimum required for the concept of a person.^[99] As J. M. Bernstein notes, “The self is its body, and being a body is what makes the self vulnerable to assault and the violative depredations of the other.”^[100] This is the precarious reality of human embodied life.^[101] Michel Foucault’s work has shown with great historical sensitivity how the body is a target of power both to be managed and to be produced for certain functions.^[102] The body is vulnerable to and is a site of subjugation. So, when we speak of the integrity of the person, physical integrity (freedom from physical vulnerability) is often what we think of. And when we speak of indignities, physical depredation or violation is what we often have in mind. Because “bodily autonomy and bodily integrity [are] immediate ingredients in the human being,” their violations become “a denial of the victim’s status as human”^[103] and hence a denial of his or her dignity. Bodily integrity stands “for what should not be passed beyond, in, and through the violation of it.”^[104]

By “physical or bodily integrity,” I mean to refer not just to the body’s immunity from direct attack but also immunity from any attempt by another to act towards the target in a way that is highly insensitive “to the most basic needs and rhythms of a human life: the need to sleep, to defecate or urinate . . . ,” etc.^[105] It is this expanded sense of physical integrity that has been associated with dignity, especially in relation to torture.

The principle of dignity as physical integrity arises more clearly and more directly when the very right to life is at stake, such as the death penalty, abortion, and end-of-life decisions. In relation to the death penalty, dignity arises in its most basic sense: the destruction of the embodied self, the ending of the inherent worth of life itself.

B. Dignity and Capital Punishment: Justice Brennan’s Clarity v. Justice Kennedy’s Muddled Use of Dignity

In American law, dignity’s role has been seen as vital in challenging the capacity of the state to kill and the manner in which it kills. It is not only because the taking of life is literally the destruction of the person at the most basic level; capital punishment also raises another, albeit less obvious, issue of dignity, at least in the United States. The death penalty is intricately linked to race. After controlling for all other factors, the death penalty is sought by prosecutors and the sentence of death applied by jurors against Black men at a higher rate than whites for the same or similar crimes.^[106] A few years ago, the Connecticut Supreme Court made this same point. In State v. Santiago, a majority of the court noted that executions were overwhelmingly clustered among states where as a historical matter the lives of Blacks did not matter much.^[107] That means, in the process of taking a life, the death penalty also reaffirms the socially salient message that has, unfortunately, been too common in the United States: the life of a Black person is worth less than the life of his white counterpart.^[108] On this account, capital punishment is an attack on both physical and social integrity.

Unlike Justice William Brennan, whose death penalty jurisprudence was motivated by dignity, Justice Kennedy did not often turn to dignity on issues involving capital punishment. I shall mention later Justice Kennedy’s brief references to dignity on the subject. Here, however, I must explore, albeit briefly, how Justice Brennan’s use of dignity in relation to the death penalty aptly illustrates the idea of dignity as integrity.

Frank Michelman is correct in his observation that the idea of dignity “motivates Brennan’s death-penalty jurisprudence.”^[109] Dignity, for example, played a prominent role in Justice Brennan’s concurring opinion in Furman v. Georgia.^[110] A narrowly split Court (5–4)^[111] held that the death penalty, as it was currently applied in the states, was unconstitutional under the Eighth Amendment. Quoting the Court in Trop v. Dulles,^[112] Justice Brennan notes that “[t]he basic concept underlying the [Clause] is nothing less than the dignity of man.”^[113] “A punishment,” he says, “is ‘cruel and unusual’ . . . if it does not comport with human dignity.”^[114] And dignity, he tells us, is about people’s “intrinsic worth as human beings.”^[115] Justice Brennan, of course, does not define what “intrinsic worth” is or means. At the minimum, it is clear he means that dignity is not earned but is recognized in virtue of the fact that the recipient is a human being. To use Darwall’s formulation, human dignity here is “recognition respect” rather than “appraisal respect.” Indeed, in Furman, the defendant was not particularly sympathetic. He was convicted of murder during burglary. So, to the extent dignity is owed to this individual it is not because of our positive appraisal of him or because he is a sympathetic figure (that he has a chance of being rehabilitated), but rather because as a human being he is entitled to be treated in a certain way.^[116]

What precisely is the dignity that is undermined by the death penalty? What is it about the death penalty that is “degrading to the dignity of human beings”?^[117] Justice Brennan gives two reasons. First, he seems to suggest that the right to life is inherently inviolable (human life is sacred) and that the state should not be in the business of taking life.^[118] Whether this view is informed by Justice Brennan’s Catholic faith is not clear, but it is the case that the Church opposes the death penalty.

If we were to understand the position of both Justice Brennan and the Catholic Church on the death penalty in terms of dignity as integrity, we would say that dignity is about the integrity of the embodied self (physical integrity), and the death penalty directly and explicitly undermines the most basic aspect of personhood: the demise of the embodied self. As Justice Brennan put it, “[A] denial by society of the individual’s existence as a member of the human community” is a degrading punishment.^[119] Integrity was even more central in another death penalty case. In Glass v. Louisiana, Justice Brennan writes that “physical and mental suffering” is “inherent in any method of execution” and is thus “uniquely degrading to human dignity.”^[120] “For me,” says Justice Brennan, “arguments about the ‘humanity’ . . . of any method of officially sponsored executions are a constitutional contradiction in terms.”^[121]

Justice Brennan seems also to suggest that just like torture (which is a paradigmatic case of indignity), the death penalty “treat[s] members of the human race as nonhumans, as objects to be toyed with and discarded.”^[122] We understand what he means by “discarded,” but what does he mean by “toying” with? In what sense is there a toying with before discarding? It is not clear. Perhaps by using that word he is referring to what he thought was the erroneous supposition that the state could accurately predict as who should live and who should die. Or perhaps Justice Brennan was using the word to describe the period between the sentence of death and the final carrying out of the death sentence. During that period, the defendant lives with the constant reminder that he is living a life simply preparing to be put to death (a life of a zombie). The process drains the individual of his or her psychological (and social) self. Indeed, several international human rights tribunals have held that what they call the “death row phenomenon” (waiting for death) is “cruel, inhuman, [or] degrading treatment” under the relevant conventions.^[123]

The concept of the death row phenomenon emerged in the context of whether countries that have abolished the death penalty should extradite death-eligible prisoners to countries that have retained the penalty. The international norm prohibiting such extradition crystallized after the European Court of Human Rights, the International Covenant on Civil and Political Rights Committee, the Supreme Court of Canada, the Supreme Court of India, and the South African Constitutional Court, among others, declared that “delay[s] in executing a death sentence,” which is always the case, “can render an otherwise [legal] sentence cruel and degrading.”^[124] As is obvious, the whole notion of “death row phenomenon” is a not-so-subtle way of challenging the death penalty itself. But on its face, the death row phenomenon is not about the physical integrity but rather the social and psychological integrity of the person. At any rate, in the United States, Justice Brennan had affirmed and reaffirmed his opinion in Furman that the death penalty is a violation of human dignity in many subsequent opinions, mostly in dissent.^[125]

As I noted earlier, although Justice Kennedy has also written that the Eighth Amendment’s “prohibition against cruel and unusual punishment” is animated by the “[r]espect” for “the essence of human dignity inherent in all persons,”^[126] he did not conclude that the death penalty in its entirety was therefore unconstitutional. However, he joined a majority opinion declaring that it is “cruel and unusual” to put “mentally retarded” people to death.^[127] He also wrote the Court’s opinion in Roper v. Simmons, holding that it is impermissible under the Eighth Amendment to put juvenile offenders to death.^[128] Justice Kennedy gave many reasons why juveniles ought to be treated differently from adults for purposes of punishment, especially in relation to the death penalty.^[129] But he also invoked dignity in his analysis. He wrote: “By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.”^[130] Justice Kennedy repeats this line in his majority opinion in Hall v. Florida.^[131] There, Justice Kennedy wrote that Florida’s bright-line test to determine intellectual disability risked killing intellectually disabled people in violation of Atkins v. Virginia,^[132] the decision holding that executing people with intellectual disabilities violated the Eighth Amendment.^[133] Here again, Justice Kennedy repeated the line that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man.”^[134] After noting that Florida’s inflexible rule as to who is intellectually disabled posed an unacceptable risk that intellectually disabled people will be executed, Justice Kennedy explained that such execution “violates his or her inherent dignity as a human being.”^[135] Florida’s law, he concluded, “contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world.”^[136] Presumably, the dignity to which he refers here is physical integrity (the right to life itself).

The question, however, arises: if the Eighth Amendment is animated by respect “for the essence of human dignity inherent in all persons” and if Justice Kennedy believed, as it seems clear, that capital punishment would have been a violation of Simmons’s and Hall’s dignity, then on what ground would he distinguish capital punishment levied on adults and sane persons from those imposed on juveniles and the intellectually disabled? What was the purpose of invoking dignity in Roper or Hall? There is a clear tension in Justice Kennedy’s invocation of dignity in Roper and Hall and his apparent reluctance to invoke the same dignity to conclude that the death penalty is a violation of the Eighth Amendment. Justice Kennedy’s invocation of dignity in death penalty cases involving juveniles and people with intellectual disability seems at best conclusory and at worst perfunctory. Perhaps here “dignity” is being applied to define as to what is “excessive” and what is “proportionate.” But if that is the case it is not clear that dignity adds any value to the analysis. It simply seems to be an adornment. It is also interesting to note that Justice Kennedy (and Justice Stevens in Atkins) used dignity as a means of protecting people from capital punishment on the account that these individuals do not have the full capacity to reason. It is interesting to note here that the idea of invoking dignity to protect people who cannot exercise reason is in tension with the view of many political theorists (including Immanuel Kant) who attach dignity to humans on the account that they are in fact reasoning beings. And indeed, it is in tension with Justice Kennedy’s own account of dignity as autonomy as well. When Justice Kennedy invoked dignity on the account that people ought to be given the space to define who they are (for they are capable beings to so define themselves), the logical implication is that persons have the capacity to define and reasonably map out who they are or want to be.^[137]

Perhaps the way to understand Justice Kennedy’s limitations on the applicability of the death penalty to members of certain groups on the account of dignity were indications that he was inching towards holding the death penalty, the ultimate attack on the physical integrity of the embodied self, unconstitutional in its entirety. His majority opinion in Kennedy v. Louisiana^[138] seems to point in that direction. In that case, the majority held that the death penalty was unconstitutional, for “the death penalty is not a proportional punishment for the rape of a child.”^[139] If there is a clear example of the violation of dignity as physical integrity, the brutal rape of a child is one.^[140] What makes the death penalty cruel and unusual for a crime (the brutal rape of a child) that is itself cruel and unusual is not quite clear. “Death for death”^[141] seems to be an arbitrary judgment about what is cruel and what is a proportionate response to that cruel act.^[142] Symmetry of indignity seems a rather strange goal toward which to aspire.

It is true that the Court bases what is cruel and unusual partly on what it views to be an existing consensus in the community^[143] (a descriptive claim), but as the majority itself noted, it also makes its “own independent judgment”^[144] as to what is cruel and unusual.^[145] It is that normative judgment in this and other majority opinions authored by Justice Kennedy that led to the invalidation of the death penalty, suggesting that Justice Kennedy was uneasy about the extinguishing of life, the attack on the integrity of the embodied self. And perhaps these cases indicate that Justice Kennedy was inching towards holding the death penalty itself as inconsistent with the inherent dignity of the person.^[146] His observation in Hall that “[t]he Eighth Amendment’s protection of dignity reflects the Nation we have been . . . and the Nation we aspire to be,” one that values life, seems to signal that that aspiration will be undermined if the government sends signals that devalues life itself.^[147] Indeed, several state courts have cited Justice Kennedy’s observation in Hall to conclude that the death penalty was at odds with “dignity reflect[ing] . . . the Nation we aspire to be.”^[148] The conclusion as to what indignity is in death penalty cases is a matter of both an empirical and normative judgment. While there could be dispute about whether or not the empirical assertion (community consensus) is valid, what is even more in need of justification is whether the normative judgment that holds that the scope of dignity under the Clause can be determined by the “the nation we aspire to be.”

C. Dignity, Abortion, and the Beginning of Life: Who Is a Person for Purposes of Dignity?

While Justice Brennan often invoked dignity in relation to the death penalty, Justice Kennedy did so in relation to abortion. In Gonzales v. Carhart, the Supreme Court upheld a congressional statute banning what the statute itself refers to as “partial birth abortion” procedure.^[149] Writing the majority opinion, Justice Kennedy refers to dignity in relation to what the Justice thought was Congress’s purpose for passing the statute. He opines that “[t]he Act expresses respect for the dignity of human life.”^[150] Dignity here is understood as the protection of the physical integrity of the fetus. Indeed, it is the protection of what Justice Kennedy saw was the right to life itself.^[151] In fact, about seven years earlier, in a dissent in Stenberg v. Carhart, Justice Kennedy had made a similar argument.^[152] The case there involved a Nebraska statute that prohibited a procedure which medical professionals refer to as “dilation and evacuation” and abortion opponents label as “partial-birth abortion.” A 5–4 majority struck down the statute as being inconsistent with Casey.^[153] In a dissent, Justice Kennedy explained that the invalidation of Nebraska’s statute “contradicts Casey’s assurance that the State’s constitutional position in the realm of promoting respect for life is more than marginal.”^[154] For Justice Kennedy, a human life was at stake. As he saw it, there was no clearer example of the attack on physical integrity than the deprivation of life, even of one that “cannot survive without the assistance of others.”^[155] Justice Kennedy’s notion of the right to life for the fetus is echoed in the American Convention of Human Rights (which incidentally is not ratified by the United States), which provides that “[e]very person has the right to have his life respected.” And then it adds that the “right shall be protected . . . in general, from the moment of conception.”^[156] However, the Universal Declaration of Human Rights, perhaps the most famous international human rights document, seems to suggest that for purposes of dignity the word “human” is to be understood as including only those after birth.^[157]

But in the context of abortion, the concept of dignity is also invoked in terms of the physical integrity of the mother. “The denial of the right to abortion,” observes Drucilla Cornell, “enforces the kind of splitting that inevitably and continuously undermines a woman’s sense of self. Her womb and body are no longer hers to imagine.”^[158] Therefore, those who want to invoke dignity to protect what they see to be the physical integrity of the fetus have to resolve the inevitable clash between that dignity and the dignity of the mother, her physical (and often emotional) integrity. This was the very issue that worried one judge of the German Constitutional Court when the majority on that court recognized a constitutional right to dignity for the fetus pursuant to the dignity article of the German Basic Law.^[159] The dissenting judge noted: “the fetal right [to life] in the dignity clause . . . predestined [the Court] to give precedence to the protection of the unborn life over the pregnant woman’s right to self-determination.”^[160] The dissenting judge characterized the dignity interest of the mother as one of the “right to self-determination,” presumably one that trumps unconsented interference with (or control of) the embodied self.^[161] Even though the state might not directly interfere with the embodied self, its prohibition of abortion allows it to control the most basic needs and rhythms of a human life. As between the right to life and the right to autonomy, the balance might normally weigh in favor of the former. But, of course, that is premised on the proposition that the “human” in human dignity includes fetuses. That clearly was Justice Kennedy’s understandings of the purpose of the congressional statute in Gonzales.^[162] And perhaps even more interestingly, Justice Kennedy notes that the Court itself has in the past endorsed “drawing boundaries to prevent certain practices that extinguish life and are close to actions that are condemned.”^[163] To the extent that Justice Kennedy was concerned about the dignity of the woman, it was interestingly in relation to potential regret that the woman may have in going through with the abortion. The regrets, Justice Kennedy claims, lead to physical and psychological harm, as “[s]evere depression and loss of self-esteem can follow.”^[164] Thus, even when Justice Kennedy takes into account the physical and psychological integrity of the woman (hence her dignity), he thinks not in terms of integrity that is undermined by state-enforced pregnancy but rather in terms of the regret that free choice might bring about.^[165] But it is in the very nature of things that the ability to choose freely may sometimes result in the chooser regretting the choice he or she had made. At any rate, Justice Kennedy’s assertion that making the ability to choose to have an abortion a bit more stringent and reflective will save women from suffering from “severe depression and loss of esteem,” and hence from loss of psychological integrity, adopts wholesale discredited “ancient notions about women,” that they have a “fragile emotional state.”^[166] In the guise of protecting integrity, Justice Kennedy assumed the fragility of the woman, the stereotype that is often relied upon to diminish women’s personhood.

As I have noted at the beginning of the Article, the Supreme Court has just overruled its major abortion decisions.^[167] To the current majority, because there was no constitutional right to terminate a pregnancy, the life and integrity of the woman was not of constitutional concern. But what is interesting is that Justice Alito, the author of the Court’s opinion, found it to be sufficiently important to mention the life and integrity of the fetus as a relevant factor on which to distinguish the abortion rights cases from other privacy precedent.^[168]

The dissent, of course, refers to the dignity and integrity (both physical and social) of the woman in its defense of Roe and Casey in the manner that the Casey court had defended them.^[169] Referring to the interwoven nature of the Court’s privacy precedents, the jointly authored dissenting opinion makes an observation that is very similar to Justice Kennedy’s understanding of dignity. Those lines of cases, the dissent observes, protect “bodily integrity” and no right is “‘held more sacred, or is more carefully guarded’ than ‘the right of every individual to the possession and control of his own person.’”^[170] Citing to Casey, the dissent explains that the privacy cases safeguard the right to decide central aspects of one’s identity, “the ‘very attributes of personhood.’”^[171] Writing specifically about abortion, the dissent argues that the majority opinion strips the woman of her agency over fundamental aspects of her life (in its physical, psychological, and social dimensions) and in the process alters the “‘woman’s view of’ [herself] and her understanding of ‘her place[] in society’ as someone with the recognized dignity and authority to make these choices.”^[172] That clearly accords with the view of Justice Kennedy.

D. Dignity and Institutional Life: Physical and Psychological Integrity

In Brown v. Plata, a case involving crowding in the California prison system, Justice Kennedy, writing for the majority, affirmed the decision of the lower court that California must reduce its prison population by a certain percentage to be consistent with the demands of the Eighth Amendment, noting that “[p]risoners retain the essence of human dignity,” which he said was “inherent in all persons.”^[173] What is the sense of dignity here? It is about the social (and perhaps even the physical) integrity of prisoners. Overcrowding does, of course, subject prisoners to physical vulnerability.^[174] But, perhaps more importantly, it is the psychological and social humiliation^[175] that would ensue from overcrowding that Justice Kennedy seems to have had in mind here. A person is not just a physical being but a social and psychological entity as well. To the extent that those aspects of the person are threatened, personhood itself is threatened.

In a concurrence in Olmstead v. L.C., a case involving the treatment of people with severe mental illness in “deinstitutionalized” settings, Justice Kennedy again seems to invoke dignity in the context of the threat to physical integrity, among other things. The Justice notes that the lives of these individuals were “virtually devoid of ‘dignity’ or 'integrity of body, mind, and spirit.'”^[176] Justice Kennedy appears to employ the phrase “integrity of body [and] mind” as the very definition of dignity even though he listed them separately. Physical integrity was surely involved, because those living in institutionalized settings “are subject to intrusive treatment which . . . may violate their right to bodily integrity.”^[177] But that is not all. Their integrity as social beings was also diminished. As he put it: “Persons incarcerated in mental hospitals are not only deprived of their physical liberty, they are also deprived of friends, family, and community. Institutionalized mental patients must live in unnatural surroundings under the . . . control of strangers.”^[178] Living under the control of strangers is being a stranger to oneself as well. We are who we are not only because we are embodied beings but reflective beings with social commitments and relationships. These too make us the persons we are. Indeed, they make us human beings as such. Those too are under threat in institutionalized settings.

E. Dignity and the Fourth Amendment: Privacy and Integrity

The Fourth Amendment right of people “to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures”^[179] has also led Justice Kennedy to invoke dignity as a means of protecting the physical integrity of individuals. In Skinner v. Railway Labor Executives’ Ass’n, Justice Kennedy’s opinion for the Court observes that the Amendment “guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government or those acting at their direction.”^[180]

Skinner involved the regulation of the Federal Railroad Administration (FRA), which required that employees involved in train accidents give blood and urine samples for testing to determine if they had used illegal narcotics and permitted breath and urine testing for employees involved in certain safety violations. Justice Kennedy, writing for the majority, rejected the government’s argument that the breath and urine tests were not a “search” under the Fourth Amendment. Justice Kennedy cited an earlier case where Justice Brennan wrote for the majority “that a ‘compelled intrusion into the body for blood to be analyzed for alcohol content’ must be deemed a Fourth Amendment search.”^[181] This was justified on the account that unconsented intrusion into the embodied self raises the issue of “bodily integrity.”^[182] However, in both cases, the Court found that while each intrusion was a “search” under the Fourth Amendment, the particular search was reasonable given the importance of the government interest as weighed against the intrusion on the individual.^[183] In particular, in Skinner, Justice Kennedy posited that breath and urine samples were even less intrusive than blood draws, because they “do not entail a surgical intrusion into the body.”^[184] But let me add here that respecting the physical integrity of a person is not just about abstaining from direct physical intrusion, but it is also about restricting, restraining, or regulating the normal rhythm or functions of life such as when and how one urinates or defecates. The embodied self has certain natural functions and restraining or commandeering those functions is clearly a violation of the integrity of the embodied self and hence the dignity of the individual so restrained.

Whether or not one agrees with the decisions in Schmerber and Skinner that the searches were reasonable, what is important for our purpose is that in Fourth Amendment jurisprudence, dignity as integrity has played a role. As Justice Brennan put it in Schmerber v. California, the overriding function of the Fourth Amendment is to require that the state must respect “the dignity and integrity of its citizens.”^[185] Indeed, while on the Ninth Circuit, where he served for twelve years before his elevation to the Supreme Court, Justice Kennedy used a similar phrase.^[186] Here, Justices Brennan and Kennedy seem to distinguish dignity from integrity, but integrity seems to be used in a narrower sense: as the integrity of the embodied self. And dignity seems to be used to refer to the integrity of the social self.

F. Dignity as Physical Integrity: The Issue of Existential Minimum

There is considerable jurisprudence both within international human rights law and national laws across the globe that suggests that dignity as integrity would be seriously undermined if resources essential for livelihood were denied.^[187] In the area of international human rights, two of the documents comprising the international bill of rights refer to essential minimums. Thus, the Universal Declaration of Human Rights (UDHR), a document generally regarded as having achieved the status of customary international law, recognizes that there is a minimum level of existence that is “worthy of human dignity.”^[188] And the International Covenant on Economic, Social and Cultural Rights (ICESCR) asserts that states “recognize[] the fundamental right . . . to be free from hunger.”^[189] The ICESCR Committee has, in its general comments, reinforced the proposition that there is an existential minimum that states are duty bound to provide.^[190]

National constitutions are often even more direct in linking human dignity and livelihood. Thus, prior to the 2014 amendments, the Constitution of Switzerland recognized that a person “in distress and incapable of looking after [himself or herself] ha[s] the right to be helped and assisted, and to receive the means that are indispensable for leading life in human dignity.”^[191] Many other national constitutions have similar provisions.^[192] And the German Basic Law has been read by the German Constitutional Court as embodying an “existential minimum (existenzminimum).”^[193] In a relatively recent decision,^[194] for example, the court relied on the human dignity provision of the German Basic Law^[195] to deem the amount of social benefit that asylum seekers received to be unconstitutionally insufficient for existential minimum.^[196] The court affirmed that the constitutional principle of human dignity “establishes this right [the right to a dignified minimum existence] as a human right”^[197] and that right “may not be modified in light of migration-policy considerations.”^[198] The fundamental right to a minimum standard of living (existential minimum) guaranteed by Article 1 (human dignity) and Article 20 (social state principle) of the Basic Law encompasses both the “physical existence” of an individual and “the possibility to maintain interpersonal relationships and a minimal degree of participation in social, cultural and political life.”^[199]

In the United States there is, of course, no such thing as “existential minimum” or even the rights to any form of social welfare as a constitutional matter. Justice Kennedy does not seem to have departed greatly from that orthodox reading of the Constitution. There are, however, a handful of circumstances where Justice Kennedy seems to have linked dignity with existential minimum. In Brown v. Plata, a case that involved prison overcrowding in the California prison system and the consequence of that to the availability of existential minimum, Justice Kennedy, writing for the Court, made this observation: “Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”^[200] Here, Justice Kennedy seems to link human dignity, which he has said is “inherent in all persons,”^[201] to the integrity of the person. The integrity of the person assumes as a basic minimum the sustenance of the embodied self. Necessary medical care, just like essential material minimum required for sustenance, is a dignity interest. But human dignity as requiring existential minimum is here announced only in relation to people in the custody of the government, not as a general matter. However, what is important for our purposes here is the fact that Justice Kennedy has linked dignity and existential minimum, albeit in one circumstance. Justice Kennedy’s opinion linking the requirement of existential minimum only to circumstances of state custody seems to be informed by the background, small “c” constitutional, norm that wrongly assumes that everyone has the opportunity to fend for himself or herself in the private domain. If one is short of that existential minimum, it would be because of the individual’s lack of effort, not the result of institutional constraint.^[202]

VII. Dignity as Social Integrity: The Protection of the Social Dimension of Personhood

A. Introduction

Perhaps the most extensive and substantive use of dignity by Justice Kennedy occurred in relation to gay rights cases and in the context of the humiliation, the diminution, of the social person. Justice Kennedy wrote the Court’s opinion in all of the major cases involving gay rights that came before the Court when he was a member of it.^[203] In those opinions, Justice Kennedy used dignity extensively as a way highlighting the constitutive dimension of social commitments and the humiliation that ensues when those commitments are regarded and treated as if they were not properly human commitments or inclinations worthy of respect.

Justice Kennedy has also invoked dignity in relation to gender- and race-based discriminations for similar purposes, though not as extensively. From Justice Kennedy’s point of view, racial and gender discriminations subject people to indignities or humiliations, for they are based on the proposition that those who are discriminated against do not, by virtue of membership to the particular social groups, possess the ingredients to be treated as moral equals.

In this part (Part VII), I shall examine Justice Kennedy’s use of dignity in relation to gay rights and civil rights cases to make the point that Justice Kennedy’s use of dignity in these cases is about the social integrity of the person. But before I do that, I will devote a couple of pages to examine Justice Kennedy’s use of autonomy, sometimes used as a substitute to dignity as social integrity. I claim that his use of dignity here is at times confusing, but I conclude that there is a version of dignity that is defensible and consistent with what I believe to be Justice Kennedy’s general approach to dignity: the protection of the integrity of the social person.

B. Dignity and Integrity: The Ambiguous Place of Autonomy

One very familiar way in which dignity is cashed out is in terms of autonomy—human agency. Dignity as autonomy generally describes a process rather than a result. It is argued that, at a minimum, to honor a human being as having intrinsic worth is to assume that he or she has the capacity to be the author of his or her own life. Sometimes, autonomy as dignity is defended without any reference to consequences. The argument here is that the ability to choose freely has value for one’s life even if one has exercised that autonomy to make bad choices. The idea is that, however it turns out, a life is authentically one’s own to the extent that it is freely authored. This is a view that seems closer to the one advanced by John Stuart Mill.^[204] I will call this version Millian autonomy. Mill is only the most famous of those who hold this view. There are many others who have advanced a similar version of autonomy. But, for purposes of this Article, I will use the term Millian autonomy. If the Millian view of autonomy is defensible, then it seems to be clearly the case that the dignity of the person is tightly tied to the notion of autonomy, for a life is worth to a person only to the extent that it is his or her life, a life he or she has fully authored and endorsed.^[205]

A second version of autonomy is what might be referred to as Kantian autonomy. Here, autonomy is defended not so much as a process itself but on the ground of the appropriateness (the rightness) of the act and the rightness of the reason (the motivation) for which the autonomous act is pursued. ^[206] Ronald Dworkin seems to have held a version of Kantian autonomy. At least, that is what his last major work indicates.^[207] On this account, one person is subjected to indignity if she is coerced to abandon doing the right thing for the right reason. Kantian autonomy is consequentialist at two points: the reason for the action and the rightness of the action itself. To put the matter a bit more directly and clearly, human dignity for Kant resides entirely in rationality, both at the point of the choosing of the action and the justifying of it. The problem with Kantian dignity so conceived is that it has difficulty explaining why we should worry about the dignity of people with severe cognitive disabilities. Nor does autonomy so conceived explain fully the social dimension of the person, the one who is to be in full control of his or her life.

There is a middle ground on autonomy, one that says that dignity dictates that individuals should be allowed to make choices in relation to certain activities that are central to defining who they are. Perhaps we could refer to this as constitutive autonomy. It is not always clear what work autonomy is doing in this third sense, but it is used as if it represents one sense of dignity.

Although Justice Kennedy has used dignity in one or another version of autonomy that I have set out in the last paragraph, he mostly appropriates it in the third, constitutive, sense. Thus, for example, the joint plurality opinion in Planned Parenthood of Southwestern Pennsylvania v. Casey,^[208] of which Justice Kennedy is the co-author, explicitly linked dignity and autonomy. One assumes that the part of the joint opinion where dignity looms large was written by Justice Kennedy. The view of dignity that is prominent there appears to be one of constitutive autonomy. The joint opinion reads: “These matters [marriage, procreation, and abortion], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”^[209] The opinion continues: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”^[210] What is interesting is that the sentence immediately following attributes this autonomy to “personhood” itself.^[211] “[T]here is a realm of personal liberty,” Justice Kennedy observes, “which the government may not enter.”^[212]

So, presumably it is not the autonomy to make any decision that is protected as a dignity interest but rather decisions that will have an impact on the personhood of the individual who wishes to make the decision.^[213] “The destiny of the woman,” the Casey joint opinion asserts, “must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society.”^[214] Now, one could read this last observation as being closer to Millian autonomy, the sense that people ought to be allowed to make sense of who they are and how they fit in the larger universe. On reflection, however, it is constitutive autonomy that is at play here. The dignity interest recognized is one that protects the individual’s ability to determine and shape his or her conception of how he or she fits in the larger spiritual and social world. That is, the integrity of a person is ensured not just when the embodied self is protected but also when the social person is able to set and cultivate commitments that are central to who he or she is or becomes. A person is not just a physical being but a psychological and social entity as well, one with constitutive commitments and relationships that need to be respected if the person’s integrity, his social agency, is to be respected.

Lawrence v. Texas, Justice Kennedy’s majority opinion invalidating Texas’s anti-sodomy law, repeats the observations from Casey that “choices [that are] central to personal dignity” include those such as “the right to define one’s own [conception] of existence, of meaning, of the universe, and of the mystery of human life.”^[215] Dignity here is taken to mean constitutive autonomy. It is not autonomy per se that is defended but autonomy to make weighty choices, choices that are central to one’s being. Justice Kennedy makes that point even more clearly in Obergefell v. Hodges.^[216] He writes: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”^[217] The qualifier “lawful realm” is ambiguous, but it seems to indicate that the process of defining oneself would be limited to the extent that an action is deemed peripheral or not germane to the Constitution and assertion of the identity of the person and thus could be legally prohibited. Perhaps unintentionally, by the phrase “lawful realm,” Justice Kennedy seems to affirm the proposition that the relationship between law and identity is not sequential but mutually constitutive.

Neither in the abortion nor in the gay rights cases does Justice Kennedy assert or imply that the choice that an individual makes should be respected simply on account of autonomy. Rather, dignity as autonomy respects the choices of those individuals under circumstances where these choices define and express the physical and social identities of the choosers. In Ohio v. Akron Center for Reproductive Health, Justice Kennedy noted that the choice confronting a woman who is considering whether to seek an abortion is one that affects “her own destiny and personal dignity.”^[218] Here Justice Kennedy seems to write as if personal dignity is not related to destiny, but the opinion as a whole seems to suggest that in fact dignity is related to destiny, to what the person is or will become.

As I noted earlier, the link between dignity and autonomy (constitutive autonomy) is made even clearer in Obergefell v. Hodges. In that case, Justice Kennedy, writing for the majority, repeatedly made the observation that “certain personal choices [are] central to individual dignity and autonomy” and are protected by the liberty clause of the Fourteenth Amendment.^[219] Whether he used the notion of autonomy in the constitutive sense or even in the Kantian sense, Justice Kennedy’s destination is not autonomy itself but dignity. He seeks to reach dignity through autonomy. And the dignity he has in mind is the ability to make decisions about matters that are central requirements of what it means to be a person, “personhood” as he often refers to it. At any rate, at the hearing considering his nomination for Associate Justice of the Supreme Court, the list of important values Justice Kennedy thought he would look to when making a decision on a constitutional matter that has not been clearly decided by the Court included dignity, not autonomy.^[220]

Let me raise here an issue that comes up in the context of Justice Kennedy’s use of autonomy in the abortion decisions that I hope to explore in another article: the relationship between individual and group autonomy (dignity). When Justice Kennedy invokes dignity in the sense of autonomy, he almost always does so as an individual interest.^[221] But there are occasions where he seems to use dignity as an interest of a group to act autonomously. In Akron Center, Justice Kennedy wrote the majority opinion upholding the constitutionality of an Ohio statute that, with certain exceptions, prohibited any person from performing an abortion on an unmarried, unemancipated minor woman absent notice to one of her parents or a court order of approval.^[222] Justice Kennedy noted and concurred that the state statute was meant to protect the family dignity. “It would deny all dignity to the family,” Justice Kennedy writes, “to say that the State cannot take this reasonable step in regulating its health professions to ensure that, in most cases, a young woman will receive guidance and understanding from a parent.”^[223] It is not quite clear what the notion of “family dignity” is meant to convey. It could be that Justice Kennedy used “family dignity” as the aggregate dignities of mothers, fathers, and perhaps siblings, in which case there is no notion of group dignity to an entity called family. Family is simply a label, a shorthand, used to refer to the dignity of individual members (primarily parents). This is what Jeremy Waldron would call the “service-account” of dignity.^[224] Adapting the phrase from Joseph Raz’s “service conception” of authority,^[225] Waldron expresses the classical liberal view that group dignity is derived entirely from the service it performs for individuals. Group dignity is understood simply as the means by which the dignities of individual members are affirmed and protected.^[226] But it might also be the case that there is in fact a family dignity, separate from the aggregate dignities of the parents or any other relevant members. The decision of the family (let us say parents) may not be a mere aggregation of the sentiment of the members. The decision might, for example, manifest a compromise. To the extent that a dignity is owed to the family in this context, it is to the family as a corporate body (as a unit) rather than to the individual members of the family.

Whether dignity is to be understood in its corporal or individual sense, what does it mean to say that the Ohio statute reasonably protects the dignity of the family? What does dignity mean here? It appears that dignity is invoked to refer to the autonomy of parents “to ensure that, in most cases, a young woman will receive guidance and understanding from a parent.”^[227] This is closer to Kantian autonomy, the parents’ ability to guide the course that their daughter is taking with the assumption that such guidance will, in the aggregate, lead to better outcomes. The dignity parents are said to be owed is related to but independent of the dignity owed to the teenage girl.

To summarize, when Justice Kennedy invokes dignity as autonomy, it is almost always used as an instrument of protecting the physical or, more often than not, the social integrity of the person: the person who is in large part defined by his or her constitutive commitments, which cannot be developed unless the individual has the space to so cultivate.

There are times when the Justice expresses the idea of dignity not so much as a stand-in for a particular capacity (such as autonomy) but as if it were a meta-value from which all other human rights are derived and defines how those rights are interpreted and ordered. This view is consistent with that expressed in international human rights documents,^[228] some national constitutional courts,^[229] and the views of some distinguished political theorists.^[230] Justice Kennedy’s observation in Obergefell makes this point straightforwardly and clearly. When “a claim to dignity [is] in conflict with both law and widespread social conventions,” as well as “substantial cultural and political developments,” the conflict, he argues, must be resolved in favor of dignity, the protection of personhood.^[231]

The best way to understand the generative claim in terms of integrity is to say that when there is a conflict between the very integrity of the social person and other values, the integrity of the person prevails. That seems rather straightforward.

C. Dignity, Integrity, and Humiliation: Race and Gender

One sense of dignity as integrity is the absence of social humiliation. Social humiliation can come in one of two ways. Humiliation could occur when an individual is treated as if he or she were not sufficiently human and thus not morally equal to other humans, a “rejection of a human being from the ‘Family of Man,’” as Avishai Margalit would put it.^[232] This may be based on a characteristic that defines the group to which the individual belongs (color, ethnicity, religion, sexual orientation, etc.). Or an individual may be subjected to humiliation because of some physical or mental disability. In each of these cases, dignity seems to be performing some of the functions that equality is often required to perform, except that the unequal treatment will be denominated as indignity. The reason why the unequal treatment is viewed as a matter of indignity is because the unequal treatment is accompanied (explicitly or implicitly) with a social or cultural signal that expresses the view that the members of the target group are inherently of unequal moral status with members of other groups. The unequal or discriminatory treatment is based on a personal characteristic that is socially salient (with inequality-laden attitude) but morally irrelevant.^[233]

The argument here is that a person is not just a physical entity but also, perhaps more importantly so, a social being whose personhood is largely dependent on the recognition by social others. That is how “[o]ne attains humanity.”^[234] The unequal distribution of the important social good of recognition is what causes humiliation and leads to indignity.

So, the integrity of the person as a human being could be undermined not just when there is physical interference but when the person is not recognized as a full human being by social others even though the embodied self is intact. The most obvious example of indignity in that vein is slavery. Slavery is not simply about physical cruelty (and it is that!), but it is also a form of “social death.” Orlando Patterson has argued very forcefully in much of his work that the enslaved person is socially dead.^[235] He or she is “desocialized” and “depersonalized” and then installed in the structure of the master-servant environment “as a nonbeing.”^[236] The very integrity of the person as a social being is comprehensively undermined.

Slavery is only the most extreme form of nonrecognition. Indignity could come in various other forms, such as racist and sexist attitudes and actions where members of the relevant groups are considered as less than fully human or as not morally equal. In several of its opinions, the U.S. Supreme Court has invoked indignity to describe exclusions based on racial and gender assumptions and stereotypes. In terms of racial discrimination, one of the most well-known and earliest statements was one by Justice Strong in Strauder v. West Virginia. Justice Strong, writing for the Court, observed that:

The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully qualified, is practically a brand upon them, affixed by the law, an assertion of their inferiority . . . .^[237]

Justice Strong expressed the dignitary interest through its opposite—indignity—which expressed itself in the “assertion of . . . inferiority.” Perhaps it is through our understanding of its opposites—indignity and cruelty—that we will ultimately understand what it means to dignify people and to treat them as morally equal. After all, we think of dignity when we encounter existential concerns, when there is the need to avoid or guard against humiliation and cruelty.

Just over seventy years later, in Brown v. Board of Education,^[238] the Supreme Court made a similar observation to that made in Strauder regarding expressive harm, which it saw as properly considered a dignitary injury. The segregation of Blacks, the Court noted, “is usually interpreted as denoting the inferiority of the negro group,” especially “when it has the sanction of the law.”^[239] A decade after Brown, the Supreme Court again invoked “dignity” to conclude that expressive discrimination is a violation of dignity. In Heart of Atlanta Motel, Inc. v. United States, a case that involved a hotel operator who refused to allow African Americans to use his facilities in violation of the Civil Rights Act of 1964, the Court rejected the operator’s constitutional challenge to the Act. It concluded that “denials of equal access to public establishments” because of the race of those seeking services is a “deprivation of personal dignity”^[240] and indeed their dignity as human beings.^[241]

Justice Kennedy makes a similar pronouncement in Powers v. Ohio.^[242] Here the issue was whether jurors could be the subjects of peremptory challenges purely because of their race. Justice Kennedy concluded that this would be a constitutional violation and added that a juror “excluded from jury service because of race suffers a profound personal humiliation heightened by its public character.”^[243] The exclusion sends a public signal that the excluded is, by virtue of his race, not to be trusted or his judgment valued. This undermines not just integrity as wholeness, but it calls into question the moral integrity of the excluded as well. Justice Kennedy expressed a similar point in his opinion in Rice v. Cayetano. Rice involved a Hawaii statute that restricted voting for trustees of a state agency that was charged to disburse funds and benefits to “native Hawaiians.”^[244] Justice Kennedy’s majority opinion struck down the statute under both the Fourteenth and Fifteenth Amendments as being an impermissible use of “ancestral inquiry,” which “implicates the same grave concerns as a classification specifying a particular race by name.”^[245] Justice Kennedy then explained why race is a forbidden classification. He wrote: “One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities.”^[246] That is, to think of a person only in terms of one attribute (race or ethnicity) is to strip that person of his or her many other attributes and capacities, to drain him of his individuality, his uniqueness as a person. So, when Justice Kennedy writes that impermissible classifications (such as race and ancestry) “demean[] the dignity and worth of a person,” he means to suggest that they undermine the integrity of the person as a socially unique individual.^[247] The integrity undermined here is the integrity of the social person.^[248]

Sometimes an attack on the integrity of the social person leads to threats to the integrity of the physical person as well. An interesting case that comes out of Israel makes the point. In Tziam v. the Prime Minister, five Palestinian women who lived in Gaza sought permission to enter East Jerusalem for life-saving medical treatments.^[249] The Israeli government refused permission on the account that these individuals were relatives of Hamas members.^[250] The Israeli Supreme Court decided that the government rationale for denying entry did not add up and ordered it to allow entry (among other things, there is an exemption for children under sixteen), but it also based the decision on the ground that it is morally impermissible to punish an individual for the actions of others.^[251] Although the Court did not go as far as characterizing it as collective punishment, it appears very close to it.^[252] Here, treating the individuals as if they were exchangeable with Hamas members (an attack on their uniqueness as social beings) happens to lead to a threat to their physical integrity as well (the right to life itself). This is a paradigmatic case of indignity as a threat to social and physical integrity.

D. Dignity and the Importance of Commitments and Relationships: The Case of Sexual Orientation

Across cultures and systems, there is a consensus that to be human is largely to have connections, relationships, and commitments.^[253] When a person is prevented either culturally or legally from presenting herself wholly or completely, then that person has been subjected to indignity and her integrity as a human being is seriously compromised. There is nothing more demeaning or humiliating than to be forced to deny part of what constitutes oneself as a person or to be denied the opportunities to manifest an important part of who one is. Such a life is not only a diminished life and hence inconsistent with integrity as wholeness but, in some circumstances, might also be said to lack integrity in the sense of living consistently with the ethical code of truth and openness (moral integrity). The latter would occur when a person, because of threat and fear of legal and cultural sanctions, leads a life of lies and deceit, what Kenji Yoshino, following Erving Goffman,^[254] would call a life of “covering.”^[255] Covering is a clear form of inauthenticity (not to be true to oneself),^[256] a form of the fragmentation of the self where the coverer has at times internalized the culture’s demeaning view of his or her identity that is being covered. So, the coverer is not only demeaned by others, but sometimes he demeans himself or herself as well.

Persons of integrity are true to their constitutive commitments, such as how and whom to love and who or what to worship. The philosopher Bernard Williams gives decisive voice to this view when he says that persons have “a set of desires, concerns . . . call them, projects, which help to constitute a character,”^[257] things that determine the very sort of person one is or will become.^[258] These commitments, attitudes, and projects are a significant part of what gives meaning to our lives.^[259] And these acts and commitments express dignity as integrity, as Jean-Paul Sartre’s work on existentialism demonstrates.^[260] Thus, when a person is forced either legally or culturally to abandon or deny those commitments, that person’s self-understanding is shattered or at least disoriented.^[261] She suffers a loss of her integrity as a social person; she suffers humiliation. “Humiliation is the extension of cruelty from the physical to the psychological [and social] realm of suffering.”^[262]

Justice Kennedy has, on several occasions, relied on dignity, using it as a stand-in for the integrity of the social person, to conclude that some commitments are constitutionally protected as an important part of who people are, often on the basis of the liberty and equality clauses of the Fifth and Fourteenth Amendments.

As I noted earlier, in a series of gay rights cases, Justice Kennedy, writing for the Court, relied heavily on the notion of dignity, to conclude that the particular regulatory scheme in question was inconsistent with the liberty and/or equality provisions of the Fifth and Fourteenth Amendments of the Constitution. The first robust use of dignity was in Lawrence v. Texas.^[263] The case involved a Texas statute that defined as “deviate” (not properly human) and criminalized certain forms of intimate sexual conduct if engaged in between persons of the same sex. The defendants were two gay men who were charged with violating the statute. Justice Kennedy formulated the legal question thusly: whether a state can control and criminalize “a personal relationship,” whether or not that relationship “is entitled to formal recognition in the law,” without being in violation of the liberty of citizens guaranteed by the Constitution.^[264] The Court’s answer was a resounding “no.” But for our purpose, what is fascinating is how Justice Kennedy appropriated the notion of dignity to get to that conclusion. “It suffices for us to acknowledge,” Justice Kennedy writes, “that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.”^[265] “Dignity” here is used as an attribute of a “free person,” a person who is complete and free only to the extent that he is able (without the threat of criminal sanction) to manifest wholly attributes that make him the person he is. As Justice Kennedy puts it, the commitment between two people that “finds overt expression in intimate conduct with another person” is an important element of who they are.^[266] The indignity that was visited upon the defendants was therefore the characterization of the intimate act as wholly removed from proper human inclination and relationship. This, Justice Kennedy notes, “demeans the lives of homosexual persons” with great consequences “for the dignity of the persons charged.”^[267] The Texas statute forced homosexuals to choose between two unattractive alternatives, either they deny (cover) part of who they are and live inauthentic, and often vulnerable, lives (lies) or embrace it and be branded as criminals, which would enhance their vulnerability. Either is a serious threat to their very integrity as persons, the latter might in fact lead to the vulnerability of physical integrity itself, the very safety of the embodied self.^[268]

A decade after it decided Lawrence v. Texas, the Court was once again faced with an issue that involved the rights of gay citizens. United States v. Windsor^[269] involved a federal statute, the Defense of Marriage Act (DOMA), that defined marriage as the union of two people of the opposite sex for purposes of all federal laws.^[270] The legal question was whether that definition of marriage violated the Fifth Amendment’s guarantee of equal protection. The relevant provision of the statute, section 3 of DOMA, was challenged by Edith Windsor, who had been lawfully married to another woman with whom she had had a long-term relationship with before the marriage, in fact since 1963. The couple lived in New York. Because marriage between people of the same sex was not legal in New York at the time, the couple travelled to Canada where it was legal and got married there.^[271] The couple then returned to their home in New York and proceeded to live as a married couple, as New York had now recognized their marriage.^[272] When Spyer, the spouse, died, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses, but she was barred from doing so. The reason: she did not qualify as a “spouse” under the federal statute. As a result, Windsor had to pay a considerable amount of federal tax on the estate.^[273] She challenged the constitutionality of section 3 of the Act pursuant to which she was denied the spousal tax exemption to which she thought she was entitled.

Justice Kennedy wrote the Court’s opinion. He held that the law was in violation of the Fifth Amendment.^[274] Justice Kennedy invoked “dignity” in the opinion at several points, “no less than nine times.”^[275] What exactly does dignity mean? And what role did it play in the outcome of the decision? Let me take up the first question first. Justice Kennedy seems to vacillate between dignity as a property of being human (“inherent worth”) and dignity as a rank conferred by government. Referring to the fact that the State of New York had now recognized same-sex marriages, and hence the marriage of Windsor and Spyer, Justice Kennedy observes that the state therefore conferred upon same-sex couples “a dignity and status of immense import.”^[276] Dignity here seems to be close to the ancient notion of dignity-as-rank,^[277] rather than dignity describing a process or an activity that is inherent in, or constitutive of, the person. If the state can bestow or confer rank, then it might be able to decline to so confer or even to be able to withdraw what has been given without that leading to the charge that the “inherent worth” of the relevant individuals has been undermined or diminished. In the same way that a monarch is not required to grant a knighthood or any other rank of nobility and presumably the monarch could also withdraw the rank (subject of course to accepted procedure), the state may or may not grant a rank to same-sex marriages that it has given to heterosexual couples. The sentence immediately following the one where Justice Kennedy asserts that New York had conferred dignity seems to reinforce this reading, for he writes about the action of the State of New York as enhancing rather than recognizing dignity.^[278] A page later, Justice Kennedy essentially repeats that observation when he noted that when New York recognized the validity of the marriage performed in other jurisdictions, it “sought to give further protection and dignity to that bond.”^[279]

However, what is interesting also is the fact that Justice Kennedy then goes on to argue that the withdrawal of this state-conferred status, which presumably was not required as an initial matter,^[280] by the federal government will be a dignitary injury. Why so? As an initial matter, the answer seems to be a matter of institutional process rather than as a matter of inherent human dignity. The reason that the federal government’s action is viewed as an infliction of indignity is premised on the proposition that what one government confers (dignity) within its constitutional authority, another (the federal government) cannot withdraw.^[281] Individual dignity here seems to be a byproduct of ensuring that institutional actors are kept within their proper spheres or lanes, but it is also apparently a matter of expectation. Individuals have a right to expect that ranks conferred by the state would be honored. Acting in a manner that undermines that expectation is to subject those individuals to indignity.

There is a different, and perhaps a better, way of reading Justice Kennedy’s use of dignity in Windsor. Justice Kennedy appears to indicate, although tentatively, that marriage is an issue of dignity, for it is an important affirmation of a dignitary interest that the Court had recognized a decade earlier in Lawrence v. Texas. After noting that “[p]rivate, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State,”^[282] Justice Kennedy sees the recognition of marriage as a further vindication of that “personal bond that is more enduring.”^[283] Not to have one’s defining commitments recognized as important and as valuable as the commitments of others’ of a similar nature (heterosexual marriages) is to be humiliated and diminished (demeaned) as a person.^[284] This is what the State of New York recognized but precisely what the federal government wished to prohibit.^[285] What was at stake here, for Justice Kennedy, was the integrity of personhood itself. A person is who she is in large part because of her commitments and relationships, “life projects” as Bernard Williams would say. The New York marriage laws “sought to protect . . . personhood and dignity.”^[286] But Justice Kennedy saw that it was not just the integrity of gay couples that was threatened but “the integrity and closeness” of the family as well, which makes it “difficult for the children to understand.”^[287] The children do not understand why their families do not have the same status as the families of their friends and why they are not seen as whole, as a unit.

Justice Kennedy’s view of dignity in the constitutional scheme is explained further and with more sustained argument in Obergefell v. Hodges.^[288] Obergefell involved an issue that lurked in the background in Windsor: same-sex marriage. The facts here were similar to those in Windsor. A gay couple was married outside the state in which they resided because their state (Ohio) did not recognize the validity of same-sex marriages. Just as in Windsor, one of the partners became terminally ill and passed away. Ohio refused to recognize on the death certificate that there was a marriage.^[289] This nonrecognition had great material and emotional consequences for the surviving spouse. The constitutional issue before the Court was whether the nonrecognition of a marriage validly performed in another state was a violation of the liberty and equal protection rights of the plaintiffs protected by the Fourteenth Amendment.^[290]

Justice Kennedy wrote the majority opinion. His opinion relied partly on the notion of dignity to argue that the Constitution gives gay couples the right to marry and to have all governmental benefits attendant to (heterosexual) marriages made available to them as well. Justice Kennedy starts with the observation that heterosexual union “always has promised nobility and dignity.”^[291] In what sense “nobility” and dignity" are promised by the institution of marriage is not made clear. Let me leave “nobility” to the side, for I am uncertain of what it means, and simply focus on “dignity.” What is it about marriage or the right to marry that Justice Kennedy sees as essential to dignity? Indeed, what is “dignity” for Justice Kennedy under these circumstances?

Justice Kennedy starts with the observation that marriage has been transcendently important in human history.^[292] It is important, he argues, because it promises couples that they will “find a life that could not be found [by each] alone.”^[293] It allows couples “to define themselves by their commitment to each other.”^[294] At another point, Justice Kennedy notes that “[c]hoices about marriage shape an individual’s destiny.”^[295] The argument here seems to be that marriage makes the individual more whole, more complete, and hence enables him or her to pursue human excellence better. Excluding members of a group from this institution purely because of a central feature of who they are as social beings^[296] is, therefore, a diminution of their very being. One could disagree with Justice Kennedy’s historical assertion that marriage has been central in human history or his claim that marriage is a foundation for human excellence or fulfilment.^[297] However, what is undeniable for our purpose here is that Justice Kennedy sees the denial to gay couples of the right to participate in the institution of marriage as an attack on their “humanity and integrity”^[298] and hence an attack on their dignity. Dignity and integrity are here linked in a couple of ways, tracking the two constitutionally guaranteed rights that Justice Kennedy relied upon: liberty and equality.

First, starting with the proposition that sexual orientation is an “immutable”^[299] aspect of people’s identities and that same-sex marriage is the only “real path” to the profound commitment that is expressed in marriage, Justice Kennedy asserts that prohibiting gay marriage is an attack on the integrity of the person as one with commitments and life projects.^[300] As he eloquently put it: “Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”^[301] And liberty “includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”^[302] The attack on gays’ commitments to love and to publicly manifest that love is an attack on a central constitutive element of who they are as persons, an attack on their very personhood (their integrity).^[303] It is not accidental that Justice Kennedy refers to exclusion of gays from the institution of marriage as a “[d]ignitary wound[].”^[304] Dignity here is linked to liberty. In fact, Justice Kennedy’s opening sentence of the opinion makes the point clearly: "The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity."^[305]A person has integrity not only when he is able to define his constitutive commitments (whom to love) but also when he is free to manifest (“express”) that important aspect of his identity.

The second way in which dignity and integrity are linked is through the jurisprudence of equality. Even if the institution of marriage were not considered a liberty interest and hence not a matter of dignity, the treatment of same-sex marriages as having less worth than heterosexual marriages would become a dignity issue. The act of exclusion through law has always carried with it the humiliating cultural signal of social saliency that the relationships of same-sex marriages are not worth respecting, for they are not thought of as properly human sentiments and inclinations. Consequently, Justice Kennedy observes, “[M]any persons did not deem homosexuals to have dignity in their own distinct identity.”^[306] That is, many did not recognize the relationships between gay couples as sufficiently human activities and sentiments.

What ultimately makes the criminalization of homosexual intimacy or the denial of the right to marry for same-sex couples an indignity is the fact that what is allowed as valuable to one portion of the community (heterosexuals) is denominated as immoral or unworthy when another group (homosexuals) seeks to assert or claim it. In the process of showing that the institution of marriage has changed over the years and one source of that change is developments in the role and status of women, Justice Kennedy writes: “As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned.”^[307] The term “dignity” here seems to refer to rank and therefore equal dignity is about equality of rank, whatever higher rank men were said to occupy. And in terms of same-sex marriage, with all the talk about dignity, what seems central to Justice Kennedy’s opinion is the fact that the state has imbued it with significance (that it has treated it as if it were central to people’s lives). Consequently, excluding a segment of the population from it for no principle other than the judgment that they are not of equal moral worth is an unwarranted infliction of indignity on the excluded group.^[308] The indignity is the stigma that is telegraphed when a segment of the population is denominated as not good or moral enough to participate in the particular activity or institution.^[309]

Justice Kennedy attempts to show a convergence between the two dignitary interests informed by liberty and equality thusly: “To deny this fundamental freedom on so unsupportable a basis . . . so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law.”^[310] The claim here is that liberty suggests that the criminalization of such an important and constitutive relationship is a diminution of those who seek to enter it. And endorsing that relationship as valuable for a certain segment of the population (i.e., heterosexuals) while excluding others from it (homosexuals) is to humiliate the excluded and thus to subject them to indignities (unequal treatment). Justice Kennedy attempts to give linguistic expression to this synergy with the phrase “equal dignity.”^[311]

E. “Equal Dignity”: A Jurisprudential Innovation?

Although I have argued that Justice Kennedy has appropriated dignity to interpret several specific constitutional provisions, such as the Fourth and Eighth Amendments, to protect or vindicate the physical integrity of the person, most often Justice Kennedy’s use of dignity is in relation to the protection of the social person, the person’s capacity to love, to cultivate relationships, and to define himself through those commitments and relationships, “life projects” in Bernard Williams’s formulation. This is what I have earlier referred to as social integrity. In this context, Justice Kennedy invokes dignity in the context of vindicating the liberty and/or equality rights found in the Fifth and Fourteenth Amendments to the Constitution.

What has been rather distinctive, however, has been Justice Kennedy’s use of dignity (at least his claim of doing so) as a bridge to connect liberty and equal protection, at least to use one as a means of interpreting the contents or scope of the other.^[312] For this purpose, he used the phrase “equal dignity,”^[313] a move that some legal commentators have declared as Justice Kennedy’s most important jurisprudential contribution.^[314] In Justice Kennedy’s hands, the constitutional role of dignity here is not only a means of understanding the contents of the constitutional rights of liberty and equality, but apparently it is also a way of making the two constitutional rights speak to one another, to enable us to explicate the meaning of one through the other. As Justice Kennedy put it in Obergefell, the two clauses are “connected in a profound way.”^[315]

So, how does the pairing of “equal” and “dignity” help us to understand better the reach of equality and liberty? Although Justice Kennedy is not quite clear on the matter, three possible alternative readings exist. The first and perhaps the most straightforward reading is that Justice Kennedy is claiming that liberty is meant to preserve human dignity, and equality in turn requires that that dignity-preserving liberty be applied to all human beings (for dignity is inherent in human beings) when there is no relevant difference with respect to the general principle. However, this reading seems to me neither faithful to Justice Kennedy’s view nor does equal dignity conceived in this manner advance the conversation very far.

It may not be a faithful reading, because Justice Kennedy seems to imagine that through dignity the principle of equality would have as active a role in determining the contours of liberty as liberty would have in relation to exploring the scope of equality. After all, Justice Kennedy specifically imagines that we interpret one through the lens of the other. However, the first alternative reading seems to suggest that there is liberty and then there is equality. Equality seems to have a perfunctory role in the way liberty values are explicated. It is true that a statement in Lawrence seems to suggest that equality is to be subsumed into liberty, for he observes that liberty contains within it the guarantee of equal protection.^[316] But his opinion in Obergefell shows that he does not view the relationship between equality and liberty as a one-way street. Indeed, equal dignity is meant to explore the relationship of each (liberty and equality) to dignity. The first alternative reading is unhelpful in another sense. It simply restates the problem we have now. How do we go about determining what values are liberty values? That is, it does not tell us how precisely dignity will help us to define those liberty values that (if we were to find them) need to be provided equally to all. It is often precisely at that point where differences and controversies emerge.

The second alternative reading is one that Larry Tribe gleans from the decision in Obergefell and hails as a jurisprudential innovation. As Tribe put it, equal dignity has “tightly wound the double helix of Due Process and Equal Protection . . . .”^[317] Under this reading, dignity serves as the core through which those rights we denominate as fundamental rights are explicated and assessed. Indeed, liberty and equality are so tightly wound (“fused”) that they simply become two aspects of the same value that anchors them: dignity. It is not clear that Justice Kennedy envisioned such fusion, and, even more importantly, it is not quite clear what the jurisprudential payoff is of such a reading. What precisely is the relationship among dignity, liberty, and equality in this state of fusion?

The third alternative reading seems to go this way: Equal dignity is not an expression of the fusion of liberty and equality nor one of subsuming equality into the orbit of liberty, but rather it is a description of a complicated relationship between the two in the process of identifying fundamental (personhood) interests, elements of integrity in my language. In Lawrence, Justice Kennedy rooted liberty in the value of dignity, and in Windsor, dignity is viewed as the value through which liberty and equality are related. And in Obergefell, the relationship is explored, albeit in a cursory manner.

Often, it is through the jurisprudence of equality (through comparative judgment) that we discover about the importance or fundamental nature of a right or immunity that we end up denominating as a liberty interest. This happens in one of two ways. First, if a society deems that a particular relationship or institution (e.g., marriage) is important for human flourishing but provides it only to one class of citizens while denying it to another group of citizens, when there is no relevant difference with respect to the general principle, then clearly a liberty right is being denied. This would be so even though as an initial matter it might not have been required to be provided.

Second, and perhaps more importantly, we fully understand the nature of a liberty right not as an abstract principle but in the context of how it applies and what the consequences of such application have been. Often, it is our assessment of the unequal access to particular immunities or privileges and the consequences of such applications that indicate to us the importance of those privileges or immunities, because we may have “a full awareness and understanding of the hurt that” results from that exclusion.^[318] The humiliation that a particular exclusion engenders will tell us of the significance of that treatment to the very integrity and worth of the social person, “the very fact of me” as one gay columnist expressed it.^[319] Humiliation is the expansion of cruelty from the physical to the social and psychological realms. It is the cruel social signal that the unequal access sends—that the relationship of gay couples is not of a sufficiently human endeavor—that makes it a dignitary injury.

Under this account, our comparative judgment under the Equal Protection Clause gives us an insight into the importance of particular interests to the social integrity of the claimants. In Obergefell, Justice Kennedy makes this point straightforwardly: “As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important [and importantly human] respects.”^[320] Justice Kennedy was even more straightforward about the role of equality in specifying an interest as a liberty interest: “The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.”^[321] That is, through the invocation and exercise of an individual’s equal protection rights we may arrive at the conclusion that the right denied is in fact an important liberty right because the consequence of denying it to one group of citizens while affirming it as an important “human institution” to another group of citizens sends signals that the excluded are seeking to participate in an activity that is not fully human.^[322] Or as Justice Kennedy put it in Obergefell, it would “diminish their personhood.”^[323] The stigma of a diminished life flows from an unequal treatment that simultaneously sends social signals that the group of which the individual is a member is inherently not of equal moral status and the particular activity that members of the group engage in is not a sufficiently human activity.

Just like the race- and gender-based exclusions that I explored earlier, gay couples excluded in Windsor and Obergefell suffered serious material disadvantages in virtue of the exclusions. In fact, those material disadvantages formed the bases of the litigations. However, it is the demeaning signals that the distinction sends about the worth of the excluded that Justice Kennedy sought to capture with the phrase “equal dignity.” As he put it in Masterpiece Cakeshop, “Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.”^[324] The same sentiment was expressed in Lawrence,^[325] where Justice Kennedy notes that the biggest problem with Bowers v. Hardwick^[326] was that the precedent “demeans the lives of homosexual persons,”^[327] even in the very formulation of the constitutional question before it.^[328]

In equal dignity, Justice Kennedy appears to see the relationship between liberty and equality as co-constitutive. That is, we understand the nature of weighty liberty interests through our comparative judgment as to how denial to one group or another of a privilege or immunity undermines or questions the very identity (and humanity) of the excluded, when the exclusion signals that the excluded does not have equal moral worth with the in-group. Put simply, dignitary interests do not arise in a vacuum. They often do so in the context of comparative judgment or analysis. The notion of equal worth, of course, does not assume that human beings are in fact the same or equal in everything. That clearly is not the case. People have different talents on different things. Equal worth simply says that at the most basic level, every human life is of intrinsic worth not only to the person whose life it is but to the rest of us as well. That understanding puts certain moral and ethical obligations on all of us. As Ronald Dworkin has argued, if we think, as most of us certainly do, that our own lives have intrinsic value, then we must grant others the same consideration. For there is no principle that would justify why my life is of intrinsic worth while denying the same to be the case in relation to other human beings.^[329] Every human life is of intrinsic potential value.

VIII. The “Ever-Redeemable”^[330] Dignity: Dignity and Change

In Lawrence, Justice Kennedy argues that the components of liberty cannot be limited to a particular generation’s understanding of its scope. “[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”^[331] In Windsor, Justice Kennedy makes the same point when he refers to New York’s “conferral” of dignity on gay married couples by recognizing their marriage as reflecting “both the community’s considered perspective on the historical roots of institution of marriage and its evolving understanding of the meaning of equality.”^[332] In Obergefell, Justice Kennedy was even more direct about the role of history and tradition in affixing the meaning of constitutional norms such as equality and liberty and the value of dignity. He held: “History and tradition guide and discipline [the] inquiry” into the relevant meaning of those terms at a particular time, “but [they] do not set its outer boundaries.”^[333] This is so because “[t]he nature of injustice is that we may not always see it in our own times.”^[334] If we translate it into the language of dignity as integrity, we will say that the nature of treating some (or their pursuit) as not equally human may not be apparent to us in our own time. Indeed, this was the position Justice Kennedy articulated before the Senate Judiciary Committee during the hearing considering his nomination as an Associate Justice of the Supreme Court. When Senator Specter of Pennsylvania gave Plessy v. Ferguson as an example of what happens when, in Justice Kennedy’s own words, judges do not realize “that constitutional values are intended to endure from generation to generation and from age to age,”^[335] Justice Kennedy added: “it sometimes takes humans generations to become aware of the moral consequences . . . of their own conduct.”^[336]

There is another sense in which dignity evolves. Human beings themselves evolve in their understanding of the human. Often, people think of humanity as a product of a certain natural event. Nature sets the parameter of humanness. That does not seem to be fully right. To be sure, the embodied self is the first and basic state of humanness, but we become fully human because we belong. We have relationships, commitments, and life plans. Those commitments, relationships, and life plans make us not only the specific humans we are but humans in a general sense as well. Humanness under this account is in large measure a relational practice of encounter. It is a project rather than a finished product. Humans are contingent embodied beings.

Our understanding of what relationships become central to the development and flourishing of humans becomes fuller as we get to know more about the human condition. Often, we understand fully the “liberty that remains urgent in our own era” through an assessment of the impact on the personhood^[337] of those who have been excluded from particular institutions or denied certain privileges and immunities. The jurisprudence of equality often clarifies the scope of liberty and the value of dignity through which the constitutional principle of liberty is understood. In that process, history and tradition cannot be “the ending point of the substantive due process inquiry.”^[338]

To summarize, if, as I have argued in this part, humanness is not a finished product but a project, then it follows that the notion of dignity that is meant to set out the minimum threshold for the “functional capabilities”^[339] of a person, to use a Nussbaumian phrase, will necessarily be evolving. It will be “ever-redeemable.”

IX. Conclusion

“[A] decent society is one whose institutions do not violate the dignity of the people in its orbit,” observes Avishai Margalit.^[340] Dignity as integrity is about specifying the minimum threshold of immunities and entitlements necessary for the constitution of such a society, a society that respects and protects the integrity of its members, integrity as wholeness. At the most elemental level, humans are embodied beings, so the protection of the bodily integrity of the person is an important aspect of what it means to be dignified. Humans are, however, more than physical bodies. They are entities with constitutive commitments and relationships as well. The protection of these constitutive commitments is as important as the protection of bodily integrity if a person is to live as an integral whole. This Article has shown that in many ways Justice Kennedy’s jurisprudence of dignity can be explained in terms of dignity as integrity.

Dignity as integrity has an ally in the philosopher Avishai Margalit, who describes dignity as the absence of humiliation and in turn defines humiliation as “the extension of cruelty from the physical to the psychological realm of suffering.”^[341] As I have argued throughout, dignity in this sense is an existential value.^[342] Justice Kennedy seems to share that view.

Assuming that dignity as integrity in the minimalist sense fully or generally captures Justice Kennedy’s opinions on dignity, there could be another, global, challenge to dignity as integrity as a minimal threshold. The argument might go this way: The minimalist approach to dignity is too limited and unambitious. Let me start responding to that criticism by first readily admitting, as I have done earlier in this Article, that the minimalist approach is far more modest than the expansive views of dignity best represented by the Aristotelian view of “human flourishing” as a measure of dignity. However, as I have also argued, the minimalist approach has two virtues as opposed to the maximalist views of dignity. First, to the extent that we want to think of dignity as a universal value, one that can be used as a “common standard of achievement”^[343] on the global level, it has to appeal to the commonalities and convergences across cultures and traditions. It must also be mindful of the differences in resource capacities of communities across the globe. Dignity as integrity captures those points of convergence and is mindful of capacity differences. So I argue. Justice Kennedy gestures to that convergence when he explored what he thought was the transcultural and historical importance and significance of marriage in Obergefell.^[344]

Second, the most important function of dignity, or indeed human rights generally, has not been the delimitation and vindication of the scope of what an ideal personhood in a fully just society would look like. Rather, it is to deal with the immediate and pressing issues of indignity and cruelty. Margalit refers to the “much more urgent” task of eliminating humiliation as a priority of the “decent society.”^[345] And “we could do more than we do to stop”^[346] the urgent issues of indignities and humiliations if we utilize a standard that speaks to the considered and reflective views of various cultures and traditions that invoke dignity. Among some scholars, even distinguished ones, there is serious misunderstanding of the role of a system of human rights. Some think that a system of human rights (include in that the notion of dignity) must be conceived so as to be capable of ushering in the fully just society. But human rights and the notion of dignity were not designed to address all of our moral problems and problems of injustice. Samuel Moyn, whom some may fault as asking too much of human rights, was, however, quite right when he acknowledged that it would not make sense to “indict a hammer” for being “useless when another tool is needed.”^[347]

The world that dignity as integrity imagines is one of absolute and minimalist claims a person can make in the defense of his or her integrity as a person—bodily, social, and psychic security. These are minimums required for a concept of a person, for dealing with urgent problems of cruelty and indignity as universal concerns, not sufficient conditions for a fully just society.^[348] But it is also one that “can be compatible with a wide variety of ways of living,”^[349] one that acknowledges that the world is defined by "ethical pluralism"^[350]and various ways of being human. Dignity as integrity acknowledges and gives space to that multiplicity. Dignity ought not be invoked as an attempt to cure the world of differences or different ways of being human. Dignity as integrity guards against such temptations.

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1. See Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right 192 (Daniel Kayros trans., Cambridge Univ. Press 2015) (2014) (“According to research conducted in 2003, since the establishment of the US Constitution in 1789 the term ‘dignity’ has appeared in approximately nine hundred judgments.” (citing Judith Resnik & Julie Chi-Hye Suk, Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty, 55 Stan. L. Rev. 1921, 1933 (2003))).

2. “The constitutions of at least 162 countries . . . refer to dignity. Reference to . . . dignity is most common in Eastern European and post-Soviet states.” That is, “followed by states from Latin America, Sub-Saharan Africa, the Middle East, East Asia, [and] South Asia.” The “least common reference is in Oceania.” See Adeno Addis, Human Dignity in Comparative Constitutional Context: In Search of an Overlapping Consensus, 2 J. Int’l & Compar. L. 1, 8 n.29 (2015). Why some regions constitutionalize dignity more than other regions and why more recent constitutions are more likely to include dignity than older ones are questions worth pursuing but I will put those questions aside in this Article.

3. 2008 Syntagma [Syn.] [Constitution] 2(1).

4. See Pol. Const. of Peru 1993, art. 1.

5. See Const. of the Dom. Rep. 2015, art. 38 (noting that respect and protection of dignity “constitute [] essential responsibilit[ies] of the public powers”).

6. The Basic Law is Germany’s constitution. See Grundgesetz [GG] [Basic Law], translation at https://www.gesetze-im-internet.de/englisch_gg/ [https://perma.cc/PQ4E-9N
   TU].

7. Id. art. 1; accord Const. of Bol. 2009., art. 22 (“The dignity and freedom of persons is inviolable. It is the primary responsibility of the State to respect and protect them.”); S. Afr. Const., 1996 (“Everyone has inherent dignity and the right to have their dignity respected and protected.”); § 1a, Human Dignity and Liberty, 5752–1992, SH 1391 150, 150 (Isr.) (Dr. Hattis Rolef trans.), https://main.knesset.gov.il/EN/activity/documents/
   BasicLawsPDF/BasicLawLiberty.pdf [https://perma.cc/68BG-M2AX] (“The purpose of this Basic Law is to protect human dignity and liberty in order to [establish in a Basic Law] the values of the State of Israel as a Jewish and democratic State.”).

8. See Barak, supra note 1, at 185. However, some American State constitutions do refer to dignity. Mont. Const. art. II, § 4. (“The dignity of the human being is inviolable.”); Ill. Const. art. I, § 20 (“To promote individual dignity, communications that portray criminality, depravity or lack of virtue in, or that incite violence, hatred, abuse or hostility toward, a person or group of persons by reason of or by reference to religious, racial, ethnic, national or regional affiliation are condemned.”). The Louisiana Constitution contains a section that has the heading “Right to Individual Dignity.” The specific article, La. Const. art. I, § 3, doesn’t actually refer to dignity, but it contains a list of rights including equal protections of the law and a prohibition on slavery and involuntary servitude, essentially incorporating (and elaborating on) the Thirteenth and Fourteenth Amendments of the Federal Constitution.

9. Referring to Justice Kennedy’s statement in the opinion that “[t]he lifelong union of a man and a woman always has promised nobility and dignity,” Chief Justice Roberts retorts that “[t]here is, after all, no . . . ‘Nobility and Dignity’ Clause in the Constitution.” Obergefell v. Hodges, 576 U.S. 644, 694 (2015) (Roberts, C.J., dissenting) (quoting Obergefell, 576 U.S. at 656). In a separate dissent (joined by Justice Scalia), Justice Thomas makes the same point. Id. at 735 (Thomas, J., dissenting) (“The flaw in [the majority’s] reasoning” that “its decision will advance the ‘dignity’ of same-sex couples” is “that the Constitution contains no ‘dignity’ Clause, and even if it did, the government would be incapable of bestowing dignity.”) And because there is no dignity clause, to invoke dignity as a way to understand what liberty or equality demand is to enter into the realm of political and moral philosophy for which courts are not well suited, for judges are confined “to the exercise of legal judgment.” Id. at 712 (Roberts, C.J., dissenting). Note the irony with the Chief Justice’s observation. On the one hand, he says that judges are not qualified to make moral or political judgment but only qualified to simply say “what the law is, not what it should be.” Id. at 686. But on the other hand, Justice Thomas claims that he knows that “the government would be incapable of bestowing dignity,” presumably as a logical or sociological matter. Id. at 735 (Thomas, J., dissenting). How he knows this as a modest lawyer who does not have the expertise to pronounce on moral or political philosophy is not quite clear. Perhaps he is drawing from Catholic theology, but that would still be beyond his pay grade, according to the ground rule that he lays for himself.

10. See Charles Lane, There Was One Unifying Theme of Anthony Kennedy’s Jurisprudence, Wash. Post (June 28, 2018, 4:56 PM), https://www.washingtonpost.com/opinions/there-was-one-unifying-theme-of-anthony-kennedys-jurisprudence/2018/06/28/650aa740-7adf-11e8-80be-6d32e182a3bc_story.html [https://perma.cc/A6QH-LB2C]. Of course, “penciling in” is used as a metaphor. Not only does Lane claim that Justice Kennedy penciled the concept in but according to the title of the op-ed, the concept has served as a “unifying theme of [Anthony Kennedy’s] jurisprudence.” Id. Apparently, the highest court of another country—the Indian Supreme Court—has “penciled in” dignity into the constitution of the country. See Justice A. K. Sikri, Human Dignity as a Constitutional Value, https://web.archive.org/web/20171103124257/http://blog.hawaii.edu/elp/files/2016/06/HUMAN-DIGNITY-HAWAI.pdf [https://perma.cc/2C2H-SL5N] (accessed via the Wayback Machine, an archive of past internet pages, as the original document is no longer available at the original URL). After setting out the relevant articles on equality and liberty (with no reference to dignity), Judge Sikri notes, “Apparently, there is no specific mention of human dignity as no such expression is used in the aforesaid Article. Yet, Indian Supreme Court introduced a judge-made doctrine of human dignity by reading the same into these articles of the Constitution, on the same lines as it was crafted by the American Supreme Court.” Id.

11. Nomination of Anthony M. Kennedy to be Associate Justice of the Supreme Court of the United States: Hearing Before S. Comm. on the Judiciary, 100th Cong. 164 (1987) [hereinafter Kennedy Nomination Hearings] (statement of Judge Anthony Kennedy).

12. Id.

13. That nominee was Robert Bork. See Linda Greenhouse, Reagan Nominates Anthony Kennedy to Supreme Court, N.Y. Times, Nov. 12, 1987, at A1. As the New York Times article indicates, after the rejection of Bork, another nominee was sent to the Senate. That nominee was rejected on other grounds. Id.

14. Kennedy Nomination Hearings, supra note 11, at 164. The comment was made in a colloquy with Senator Leahy of Vermont as to whether privacy was a right or a value.

15. Let me note here that there are national constitutions that enshrine dignity not as a value or a norm underlying a specific constitutional right but as an independent right. See, e.g., Const. of Eth. 1994, art. 24; Magyarország Alaptörvénye [The Fundamental Law of Hungary], Alaptörvény, art. 2; Konstitutsiia Rossiĭskoĭ Federatsii [Konst. RF] [Constitution] art. 21(1) (Russ.).

16. The notion of dignity as integrity is presented and defended in several earlier publications. See Adeno Addis, Dignity, Integrity, and the Concept of a Person, 13 Vienna J. on Int’l Const. L. 323, 332–34 (2019); see also Adeno Addis, The Role of Human Dignity in a World of Plural Values and Ethical Commitments, 31 Neth. Q. Hum. Rts. 403, 435–36 (2013); Addis, Human Dignity in Comparative Constitutional Context, supra note 2, at 16.

17. See George Kateb, Human Dignity 10 (2011); see also Addis, Dignity, Integrity, and the Concept of a Person, supra note 16, at 352–53; Addis, The Role of Human Dignity in a World of Plural Values and Ethical Commitments, supra note 16, at 433–34.

18. This seems to me a mistake that scholars such as Samuel Moyn often make. See Samuel Moyn, Not Enough: Human Rights in an Unequal World 200 (2018).

19. See John Kleinig & Nicholas G. Evans, Human Flourishing, Human Dignity, and Human Rights, 32 Law & Phil. 539, 545, 549 (2013) (discussing the idea of flourishing as constructing an aspirational framework toward which human development progresses and dignity as an evaluative term within that framework).

20. Michael Ignatieff, Human Rights as Politics and Idolatry 4 (Amy Gutmann ed., 2001); see also Joshua Cohen, Minimalism About Human Rights: The Most We Can Hope For?, 12 J. Pol. Phil. 190, 201–02 (2004).

21. Whether Justice Kennedy is right in his historical or anthropological account is beside the point. I argue elsewhere that his anthropological and historical account is not fully persuasive, but, as I noted in the text accompanying this footnote, for our purpose here that is not relevant. See infra Part VIII.

22. By “social integrity,” I mean to refer to the integrity or wholeness of the social dimension of the person—whom to love, whom and how to worship, etc., the life projects that make the embodied self a human being.

23. See Griswold v. Connecticut, 381 U.S. 479, 485 (1965).

24. See Barak, supra note 1, at 192.

25. The one exception might be Justice William Brennan. Justice Brennan invoked dignity often in relation to the death penalty specifically and the Eighth Amendment generally. See infra Section VI.B. I shall have occasions to refer to Justice Brennan throughout this Article for purposes of comparison with the views of Justice Kennedy. Another Justice who invoked dignity with some frequency was Justice Frank Murphy. See infra Section V.A.

26. See Justice Alito Jr.'s remarks on the occasion when Justice Kennedy was awarded the Bolch Prize for the Rule of Law. Justice Samuel A. Alito, Jr., The Bolch Prize 2019, 103 Judicature, Summer 2019, at 13. Interestingly, it is Justice Alito himself who seems to have started in Dobbs the processes of dismantling Justice Kennedy’s dignity project.

27. See Laurence H. Tribe, Equal Dignity: Speaking Its Name, 129 Harv. L. Rev. F. 16, 17 (Nov. 10, 2015), https://harvardlawreview.org/2015/11/equal-dignity-speaking-its-na
    me/ [https://perma.cc/TH2A-GEC9] (“Obergefell’s chief jurisprudential achievement is to have tightly wound the double helix of Due Process and Equal Protection into a doctrine of equal dignity—and to have located that doctrine in a tradition of constitutional interpretation as an exercise in public education.”). The phrase “equal dignity” was not Justice Kennedy’s innovation. Human rights documents often refer to equal dignity or its variation “equal in dignity.” See, for example, G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 1 (Dec. 10, 1948) (“All human beings are born free and equal in dignity and rights.”).

28. I intend to write on the role the notion of human dignity played in the jurisprudence of the two Justices. I have examined several cases in this Article that indicate when and how Justice Brennan used dignity, see infra Section V.B., but as I indicate elsewhere in this Article, it was in fact Justice Murphy who used the phrase human dignity for the first time in an opinion on the Court. See also Nomi Stolzenberg, Religious Identity and Supreme Court Justices–a Brief History, Conversation (Oct. 19, 2020, 8:24 AM), https://theconversation.com/religious-identity-andsupreme-court-justices-a-brief-history-146999 [https://perma.cc/YQ78-AKHS].

29. The Vatican II document, Pastoral Constitution on the Church in the Modern World–Gauium et Spes, promulgated by Pope Paul VI, Vatican City (1965), is a good example of a contemporary Catholic approach to human dignity. There is, the document notes, “a growing awareness of the exalted dignity proper to the human person, since he [or she] stands above all things, and his [or her] rights and duties are universal and inviolable.” Pope Paul VI, Pastoral Constitution on the Church in the Modern World 24 (1965). This dignity is based on the fact that human life is “a manifestation of God in the world, a sign of his presence, a trace of his glory.” Pope John Paul II, Evangelium Vitae to the Bishops, Priests and Deacons, Men and Women Religious, Lay Faithful, and All People of Good Will, on the Value and Inviolability of Human Life 27 (1995). As Andrea Sangiovvani shows, the modern Catholic idea of human dignity could be traced back to Leo XIII’s encyclical, Rerum Novarum, promulgated by Pope Leo XIII, Vatican City (1891), “which is one of the founding documents of modern social Catholicism.” Andrea Sangiovanni, Humanity Without Dignity: Moral Equality, Respect, and Human Rights 27–28 (2017); see also Saint Thomas Aquinas, On the Truth of the Catholic Faith, Summa Contra Gentiles, Book Three: Providence, Part II 114 (Vernon J. Bourke trans., 1956). For a more current example of Catholic teachings, see Pope John XXIII, Pacem in Terris: Encyclical Letter on Establishing Universal Peace in Truth, Justice, Charity, and Liberty, in Catholic Social Thought: The Documentary Heritage 131, 133 (David J. O’Brien & Thomas A. Shannon eds., 1992); Pope Paul VI, Declaration on Religious Freedom (Dignitatis Humane): On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious, in The Documents of Vatican II 675, 679 (Walter Abbott ed., Very Rev. Msgr. Joseph Gallagher trans., 1966).

30. Frank J. Colucci, Justice Kennedy’s Jurisprudence: The Full and Necessary Meaning of Liberty 31 (2009) (“Kennedy’s reliance on liberty and human dignity—criticized by Scalia as merely Kennedy’s personal preference—is likely inspired by his Catholicism.”); see also id. at 32–33 (“The rhetoric—and perhaps the substance—of Kennedy’s conceptions of human dignity and personality, his opposition to coercion, and his ideal of a social dialogue were influenced by the ideas such as those stated in Dignitatis Humanae.”). For Dignitatis Humanae, the Catholic Church document, see Dignitatis Humane: On the Right of the Person and of Communities to Social and Civil Freedom in Matters Religious, promulgated by Pope Paul VI (1965), http://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vatii_decl_19651207_dignitatis-humanae_en.html [https://perma.cc/CDA9-EM8C]. In regard to Justice Brennan, see Stephen J. Wermiel, Law and Human Dignity: The Judicial Soul of Justice Brennan, 7 Wm. & Mary Bill Rts. J. 223, 229 (1998) (“There can be little doubt though, that his socially progressive Catholic upbringing influenced him.”). It does not seem to me accidental that in a speech that Justice Brennan gave to the Irish Charitable Society in Boston on St. Patrick’s Day he reminded his audience that it was important to conserve “fair play and simple human dignity which have made our land what it is.” Id. at 229–30.

31. The Catholic Church opposes abortion, gay rights, and the death penalty. In terms of Catholic teaching on the death penalty, it is important to note that there have been several Catholic Justices on the Supreme Court over the years (including six on the current Court). Frank Newport, The Religion of the Supreme Court Justices, Gallup (Apr. 8, 2022), https://news.gallup.com/opinion/polling-matters/391649/religion-supreme-court-justices.aspx [https://perma.cc/MXX5-A6LD]. Not all have embraced the notion of dignity as a constitutional value. Indeed, the most vociferous opponents to Justice Kennedy’s use of dignity are themselves Catholic (the late Justice Antonin Scalia, Chief Justice Roberts, and Justice Thomas). Jeffrey Rosen, The Dangers of a Constitutional ‘Right to Dignity,’ Atlantic (Apr. 29, 2015), https://www.theatlantic.com/politics/archive/2015/04/the-dangerous-doctrine-of-dignity/391796/ [https://perma.cc/WFP6-W9PP]. The point here is that it is not the case that to be a Catholic will necessarily incline one to view dignity in a particular way.

32. Ronald Dworkin, Law’s Empire 70–72 (1986).

33. Id. at 71. (“The contrast between concept and conception is . . . a contrast between levels of abstraction at which the interpretation of the practice can be studied. At the first level agreement collects around discrete ideas that are uncontroversially employed in all interpretations; at the second the controversy latent in this abstraction is identified and taken up. Exposing this structure may help to sharpen argument and will in any case improve the community’s understanding of its intellectual environment.”).

34. See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 405–06 (1821) (in discussing the Eleventh Amendment to the Constitution, Chief Justice Marshall noted that the Court “must ascribe the amendment, then, to some other cause than the dignity of a State”). Justice Kennedy himself has invoked dignity as sovereignty on several occasions. See, e.g., Alden v. Maine, 527 U.S. 706, 709 (1999) (“Federalism requires that Congress accord States the respect and dignity due them as residuary sovereigns . . . . Immunity from suit in federal courts is not enough to preserve that dignity, for the indignity of subjecting a nonconsenting State to the coercive process of judicial tribunals at the instance of private parties exists regardless of the forum.”); see also id. at 714 (explaining that the Constitution reserves to the states “a substantial portion of the Nation’s primary sovereignty, together with the dignity and essential attributes inhering in that status”); id. at 749 (“Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury or perhaps even government buildings or property which the State administers on the public’s behalf.”). In Alden v. Maine, the issue involved a suit brought by probation officers in the State of Maine against their state government for violating the overtime provisions of the Fair Labor Standards Act (a federal statute). The Supreme Court held that the action could not lie because a state could not be sued in its own courts by the federal government in its own courts unless it gives its consent to the suit. That was the factual context in which the discussion of the dignity of the state was raised. Id. at 711–12.

35. See United States. v. Bank of N.Y. & Tr. Co., 296 U.S. 463, 480–81 (1936) (observing Chief Justice Hughes requiring the federal government to bring an action in N.Y. state courts rather than federal courts would not lead to “impairment of any rights the United States may possess, or any sacrifice of its proper dignity as a sovereign”).

36. See Fla. Bar v. Went for It, Inc., 515 U.S. 618, 618, 639–40 (1995). The case involved the constitutionality of a state statute that prohibited personal injury lawyers from soliciting victims for thirty days after an accident or disaster. The Court majority upheld the regulation. However, in a strong dissent, Justice Kennedy, among other things, noted that this is no way to maintain the dignity of the legal profession.

37. See Buchanan v. Warley, 245 U.S. 60, 76 (1917) (showing Justice William Day describing the Fourteenth Amendment as elevating enslaved people “to the dignity of citizenship”).

38. Hannah Arendt, The Origins of Totalitarianism 294 (1951).

39. Trop v. Dulles, 356 U.S. 86, 102 (1958).

40. Arendt, supra note 38, at 293–95 (showing that for Arendt, dignity and human rights generally ought to express a fundamental right of every individual to belong to humanity understood as "a right to have rights (and that means to live in a framework where one is judged by one’s actions and opinions) and a right to belong to some kind of organized community . . . ").

41. Id. at 294–95 (“Only the loss of a polity itself expels [a person] from humanity.”); Masha Gessen, “The Right to Have Rights” and the Plight of the Stateless, New Yorker (May 3, 2018) https://www.newyorker.com/news/our-columnists/the-right-to-have-rights-and-the-plight-of-the-stateless [https://perma.cc/5SQR-VFP6].

42. See, e.g., Jeremy Waldron, Citizenship and Dignity, in Understanding Human Dignity 327, 333 (Christopher McCrudden ed., 2013) (“[T]he remarkable thing about citizenship as dignity–something it shares in common with human dignity–is that it is a status that is cherished as special notwithstanding the fact that it is widely spread among the members of a community.”).

43. Alden v. Maine, 527 U.S. 706, 715 (1999).

44. The views in this part track arguments in Addis, Dignity, Integrity, and the Concept of a Person, supra note 16, at 328–32.

45. See Gabriele Taylor & Raimond Gaita, Integrity, Proc. Aristotelean Soc’y, Supplementary Volumes, 1981, at 143, 144, 146–47; see also George Kateb, Socratic Integrity, in Integrity and Conscience: Nomos XL 77, 79, 81, 94 (Ian Shapiro & Robert Adams eds., 1998). Kateb claims that Socrates was a model of two kinds of integrity—intellectual and moral integrity. “He shows intellectual integrity by a single-minded intensity or concentration in pursuit of truth or of wisdom . . . .” Id. at 79. “Socrates shows moral integrity in his strict avoidance of injustice.” Id. In this Article, I see the two as connected and will simply treat them as aspects of moral integrity. Indeed, as Kateb himself notes, for Socrates his “intellectual integrity is a means to reducing the amount of injustice in the world.” Id. at 81; see also Kateb, supra note 17, at 7 (“Condemned to death on the charges against him, [Socrates] chooses to die for the safety of the laws of the city rather than escaping with the help of his friends.”); Cheshire Calhoun, Standing for Something, 92 J. Phil. 235, 237 (1995) (“[P]eople with integrity . . . are not . . . crowd followers . . . [n]or are they so weak willed or self-deceived that they cannot act on what they stand for.”).

46. See Stephen L. Darwall, Two Kinds of Respect, 88 Ethics 36, 39, 44 (1977); Kateb, supra note 45, at 77.

47. Darwall, supra note 46, at 38.

48. Mark S. Halfon, Integrity: A Philosophical Inquiry 156 (1989) (“Generally speaking” dignity refers to the proposition that “a person has worth simply and solely in virtue of being a person.”).

49. American Heritage Dictionary provides as an alternative definition: “[t]he quality or condition of being whole or undivided; completeness.” Integrity, American Heritage Dictionary (5th ed. 2016); see also Integrity, Oxford English Dictionary Online, https://www.oed.com/view/Entry/97366?redirectedFrom=integrity [https://perma.cc/U699-A8EX] (last visited Sept. 13, 2022) (defining integrity alternatively as: "1.a. The condition of having no part or element taken away or wanting; undivided unbroken state . . . . 2. The condition of not being marred or violated; unimpaired or uncorrupted condition . . . ").

50. See Martin Luther King, Jr., Where Do We Go From Here?, in A Testament of Hope: The Essential Writings and Speeches of Martin Luther King, Jr. 245, 246 (James M. Washington ed., 1986) (“As long as the mind is enslaved, the body can never be free. Psychological freedom, a firm sense of self-esteem is the most powerful weapon against the long night of physical slavery.”). Another aspect of psychological integrity as dignity is explained by the Inter-American Court of Human Rights in Velásquez Rodríguez v. Honduras when the court held that prolonged isolation and lack of communication seriously undermines the individual’s right to personal integrity under Article 5 of the American Convention of Human Rights. That integrity was understood to be a matter of dignity. See Velásquez Rodríguez v. Honduras, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶¶ 156, 187 (July 29, 1988) (“First, the mere subjection of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment which harms the psychological and moral integrity of the person, and violates the right of every detainee under Article 5 (1) and 5 (2) to treatment respectful of his dignity.”). The court went on to say “[t]he guarantee of physical integrity and the right of detainees to treatment respectful of their human dignity require States Parties to take reasonable steps to prevent situations which are truly harmful to the rights protected.” Id. ¶ 187.

51. James Baldwin makes the point this way: “I am what time, circumstances, history, have made of me, certainly, but I am, also, much more than that. So are we all.” The “much more” phrase perhaps refers to the fact that he is also a physical being with certain needs and emotional dispositions. See James Baldwin, Notes of a Native Son xii (1984).

52. By “social” I mean to include the law as well. Our identities are often constituted through the law. The law affirms or discourages a particular identity or particular identities.

53. Kenji Yoshino, Covering: The Hidden Assaults on Our Civil Rights ix (2006). Covering is the downplaying of one’s nonmainstream identities as a threat, to “tone down a disfavored identity to fit into the mainstream.” Id. Yoshino borrows the term from Erving Goffman. See Erving Goffman, Stigma: Notes on the Management of Spoiled Identity 102 (1963). On this account, integrity or authenticity is about “being – and remaining – ‘one’s own person.’” Greg Scherkoske, Integrity and the Virtues of Reason: Leading a Convincing Life 11 (2013); see also Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 95 (1995) (“Personal integrity . . . is the condition of wholeness” that results when all aspects of the self are “on amicable terms.”); Obergefell v. Hodges, 576 U.S. 644, 660 (2015) (Justice Kennedy, writing for the majority, described covering in the context of gay citizens: for long “many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken.”).

54. Remy Debes, On Betram Morris’s “The Dignity of Man,” 125 Ethics 836, 838 (2015) (describing Morris’s position); see Bertram Morris, The Dignity of Man, 57 Ethics 57, 57 (1946) (“I wish to emphasize the indispensability of man’s social relationships, as pertaining to our belief in his dignity and as giving positive content to that notion.”).

55. For the centrality of social recognition to the development and sustenance of identity, the work of Axel Honneth is instructive. See generally Axel Honneth, The Struggle for Recognition: The Moral Grammar of Social Conflicts (Joel Anderson trans., 1995) (1992); Axel Honneth, Recognition: A Chapter in the History of European Ideas (Joseph Ganahl trans., 2021).

56. See supra note 51; see also Lindsey N. Kingston, Fully Human: Personhood, Citizenship, and Rights 10 (2019) (“A life of dignity requires not only the bare necessities to sustain human life and survival, such as food and water, but also includes opportunities for action, expression, and belonging that make life worth living.”).

57. Although I am using the notion of wholeness or completeness of the person in a slightly different way from the way he uses it, the idea of integrated self owes a great deal to Harry Frankfurt’s work. See generally Harry G. Frankfurt, Freedom of the Will and the Concept of a Person, 68 J. Phil. 5 (1971).

58. Human flourishing is a concept familiar to those working in the Aristotelian tradition. See Aristotle, Nicomachean Ethics bks. III–IV (Terence Irwin trans., 2d ed. 1999); see also Leslie Meltzer Henry, The Jurisprudence of Dignity, 160 U. Pa. L. Rev. 169, 213–15 (2011); Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership 159–60 (2006). As it is clear from the discussion in the text, human dignity does not demand that everything that is required for human good or flourishing be provided but only that that is essential for personhood or the human status. The argument here is that dignity is the necessary starting point but not a sufficient condition for human flourishing (human excellence). Kleinig & Evans, supra note 19, at 556, 558. As to what constitutes human flourishing “would be a matter of considerable variability and contention.” Id. at 543. As John Stuart Mill observed, man is “a progressive being.” John Stuart Mill, On Liberty 20 (The Floating Press 2009) (1909). That means there cannot be a static answer to the question of flourishing.

59. Kateb, supra note 17, at 10. Two scholars describe our aspirations to dignity as “plausibly aris[ing] from our biological evolutionary past and from our confrontation with existential concerns that have accompanied the emergence of human consciousness.” David J. Mattson & Susan G. Clark, Human Dignity in Concept and Practice, 44 Pol’y Scis. 303, 313 (2011).

60. Schmerber v. California, 384 U.S. 757, 772 (1966).

61. Thus, for example, Justice Brennan believed that existential minimum is about the integrity of the person to the extent that the right to life cannot be delinked from the right to livelihood. Justice Kennedy does not seem to agree with that argument.

62. See U.N., Human Rights Committee, CCPR General Comment No. 20, art. 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), ¶ 2 (Mar. 10, 1992), https://ccprcentre.org/page/view/general_comments/27786 [https://per
    ma.cc/6UKR-R7LE]. “The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual.” It is true that the Committee appears to distinguish between integrity and dignity, but it is not clear that such distinction would make sense. Rather, in reading through this Comment and other comments, it appears that the Committee often uses dignity as a shorthand form of protecting the integrity of the person both as a physical and psychological being.

63. Jeffrey Toobin, Swing Shift: How Anthony Kennedy’s Passion for Foreign Law Could Challenge the Supreme Court, New Yorker (Sept. 12, 2005), http://www.newyorker.com/archive/2005/09/12/05092fa-fact?currentpage=5 [https://perma.cc/S5F3-KJVR].

64. See Ronald Dworkin, Is Democracy Possible Here?: Principles For a New Political Debate 48 (2006) (“The domain of human rights has no place for passports.”).

65. See In re Yamashita, 327 U.S. 1, 29 (1946) (Murphy, J., dissenting) (“If we are ever to develop an orderly international community based upon a recognition of human dignity it is of the utmost importance that the necessary punishment of those guilty of atrocities be as free as possible from the ugly stigma of revenge and vindictiveness.”); see also id. at 41 (Murphy, J., dissenting) (“While peoples in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in reckless disregard of the rights of others.”). In his short tenure on the Court (from 1940–1949), Justice Murphy was a forceful advocate of human dignity. In several dissenting and concurring opinions, Justice Murphy argued that human dignity was a central constitutional value. In Screws v. United States, for example, in a context where the majority ordered a new trial for a local sheriff who beat a black man to death, Justice Murphy wrote of the “fair treatment that benefits the dignity of man, a dignity that is recognized and guaranteed by the Constitution.” Screws v. United States, 325 U.S. 91, 91, 135 (1945). In a concurring opinion in 1946, Justice Murphy made a similar observation about the centrality of dignity. Racism, he wrote, “renders impotent the ideal of the dignity of the human personality, destroying something of what is noble in our way of life.” Duncan v. Kahanamoku, 327 U.S. 304, 334 (1946) (Murphy, J., concurring); see also In re Homma, 327 U.S. 759 (1946) (Murphy, J., dissenting). In a stirring dissent, Justice Murphy declared that a “nation must not perish because, in the natural frenzy of the aftermath of war, it abandoned its central theme of the dignity of the human personality and due process of law.” Id. at 760–61. As some have noted, it might not be accidental that Justice Murphy developed his notion of human dignity at a time when the idea of human dignity was emerging on the international plane—the adoption of the United Nations Charter and the Universal Declaration of Human Rights. See Wermiel, supra note 30, at 227. In fact, Wermiel reckons that on the question of dignity Justice Brennan is a direct inheritor of the tradition developed by Justice Murphy. Id.

66. The United Nations Charter, which had just been adopted as the constitution of the international community in 1945, refers in its preamble to the desire of the “peoples of the United Nations . . . to reaffirm faith in fundamental human rights [and] the dignity and worth of the human person.” U.N. Charter pmbl. The Universal Declaration of Human Rights, adopted in 1948, was in the process of being drafted at the time under the chairmanship of Eleanor Roosevelt. In its preamble, the Declaration recognizes “the inherent dignity and of the equal and inalienable rights of all members of the human family.” G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).

67. Samuel Moyn, Christian Human Rights 35 (2015); see also id. at 32 (“The most decisive and illuminating context [in the 1930s] for the move to constitutional dignity, it turns out, is not in the shocked conscience ‘after Auschwitz’ but in political Catholicism before it, which remained its dominant framework for decades thereafter, when the Holocaust still did not seriously figure in global moral consciousness.”).

68. The preamble, which opens with “In the Name of the Most Holy Trinity,” declared that “We, the people of Éire” seek to promote, among other things, “the dignity and freedom of the individual.” Constitution of Ireland 1937 pmbl., https://www.irishstatutebook.ie/e
    li/cons/en/html [https://perma.cc/WPV4-SL72].

69. Moyn, supra note 67, at 49.

70. Id. at 15.

71. In fact, his biography asserts that he was put on the Court to maintain Catholic representation. So, his faith was important at least for his sponsors, and perhaps for himself as well. See Frank Murphy, Const. L. Rep., https://constitutionallawreporter.com/previous-supreme-court-justices/frank-murphy/ [https://perma.cc/PG3B-YGP5] (last visited Oct. 22, 2022). Justice Murphy was nominated to replace the only Catholic on the Court, Pierce Butler. Id.

72. U.N. Charter pmbl.

73. Ronald Dworkin, Justice for Hedgehogs 203–05 (2011).

74. John Finnis makes a similar point. John Finnis, Natural Law and Natural Rights 107 (2011) (“My own well-being . . . is [not] of more value than the well-being of others, simply because it is mine.”). What both Dworkin and Finnis indicate is that egoism is self-contradictory and illogical.

75. Jürgen Habermas, The Concept of Human Dignity and the Realistic Utopia of Human Rights, 41 Metaphilosophy 464, 469 (2010). The concept of human dignity, Habermas observes:

    [P]erforms the function of a seismograph that registers what is constitutive for a democratic legal order, namely, just those rights that the citizens of a political community must grant themselves if they are to be able to respect one another as members of a voluntary association of free and equal persons. The guarantee of these human rights gives rise to the status of citizens who, as subjects of equal rights, have a claim to be respected in their human dignity.

    Id. at 469.

76. Robert Alexy, A Theory of Constitutional Rights 290 (Julian Rivers trans., 2002) (1986).

77. Pol. Const. of Peru 1993, art. 1.

78. See William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, in Interpreting Law and Literature: A Hermeneutic Reader 13, 18 (Sanford Levinson & Steven Mailloux eds., 1988) (“For the Constitution is a sublime oration on the dignity of man, a bold commitment by a people to the ideal of libertarian dignity protected through law.”); see also id. at 13 (“[T]he Constitution embodies the aspiration to social justice, brotherhood, and human dignity that brought this nation into being.”).

79. Id. at 19 (emphasis added) (“As augmented by the Bill of Rights and the Civil War Amendments, this text is a sparkling vison of the supremacy of the human dignity of every individual.”); see also William J. Brennan Jr., Reason, Passion, and “The Progress of the Law,” 10 Cardozo L. Rev. 3, 16 (1988) (Justice Brennan notes that due process of law must put at its center the idea that “individual dignity has been honored . . . [and] the worth of . . . individual[s] has been acknowledged.”); see also William J. Brennan, Jr., My Life on the Court, in Reason and Passion: Justice Brennan’s Enduring Influence 17, 18 (E. Joshua Rosenkranz & Bernard Schwartz eds., 1997) (expressing the view that the Constitution with the Bill of Rights manifests a “bold commitment by a people to the ideal of dignity protected through law”).

80. William J. Brennan, Jr., The Bill of Rights and the States, in An Affair with Freedom: A Collection of His Opinions and Speeches, Drawn from His First Decade as a United States Supreme Court Justice 14, 26–27 (Stephen J. Friedman ed., 1967). In Federalist No. 10, Madison observes that “the protection of [the] faculties [of persons] is the first object of government.” The Federalist No. 10 (James Madison).

81. See, e.g., R. v. Kapp, [2008] 2 S.C.R. 483, para. 21 (Can.); see Barak, supra note 1, at 103–04 (stating the notion human dignity provides the “normative unity of human rights”). The German Constitutional Court has often referred to dignity as a master norm through which all other constitutional rights are appraised and ordered.

82. Kennedy Nomination Hearings, supra note 11, at 164.

83. Id.

84. Id. at 86.

85. Roper v. Simmons, 543 U.S. 551, 578 (2005).

86. And it is not just in relation to the Bill of Rights, Justice Kennedy has often used freedom and dignity in relation to understanding some structural parts of the Constitution as well, such as his view that federalism is a guarantor of freedom. Id. at 578.

87. Kennedy Nomination Hearings, supra note 11, at 170. Frank Colucci, who has given a book-length treatment of Justice Kennedy’s jurisprudence, asserts that Justice Kennedy’s opinions “exhibit consistent, distinctive assumptions about how judges should interpret the Constitution and about the substantive values of liberty and human dignity its provisions protect.” Colucci, supra note 30, at 5. It is interesting that Colucci writes about “the substantive values of liberty and human dignity” (emphasis added) as if “human dignity,” which is not mentioned in the Constitution, is as significant a value as is liberty, which is mentioned specifically several times. In practice, however, liberty is the source of dignity for several of Justice Kennedy’s opinions. In fact, at the confirmation hearing itself, Justice Kennedy indicated that liberty was in fact the source of dignity. When he was asked to give a list of interests or rights that are protected under liberty, he included “the right to human dignity” in his “very abbreviated list.” Kennedy Nomination Hearings, supra note 11, at 180. The “full” abbreviated list goes like this:

    A very abbreviated list of the considerations are the essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of the person to manifest his or her own personality, the inability of a person to obtain his or her own self-fulfillment, the inability of a person to reach his or her own potential.

    Id.

88. Brown v. Plata, 563 U.S. 493, 510 (2011).

89. See infra Section VI.B.

90. See infra Section VII.C.

91. See generally Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003); United States v. Windsor, 570 U.S. 744 (2013); Obergefell v. Hodges, 576 U.S. 644 (2015).

92. See, e.g., Obergefell, 576 U.S. at 673 (“The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from the laws barring interracial unions . . . Each concept—liberty and equal protection—leads to a stronger understanding of the other.”).

93. Justice Kennedy was nominated in November 1987 and appointed to the Court in February 1988. Justice Kennedy’s appointment came in the wake of the most pernicious decision of the court (Bowers v. Hardwick) involving gay rights. There, a closely divided Court (5–4) upheld the criminalization of private consensual sexual activity. It was not just the result that was disastrous, but the language and history used to justify it. Justice White called the claim that gays had a right to sexual privacy as “at best facetious.” See Bowers v. Hardwick, 478 U.S. 186, 193 (1986); PN722—Anthony M. Kennedy—Supreme Court of the United States, Congress, https://www.congress.gov/nomination/100th-congress/722 [https://perma.cc/D5QA-Q6FZ] (last visited Dec. 3, 2022).

94. Habermas, supra note 75, at 467.

95. As I shall show later, Justice Kennedy invoked dignity both when he approved statutes restricting abortion, Gonzales v. Carhart, 550 U.S. 124, 133, 157 (2007), and when striking down regulation, Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 843–44, 851 (1992).

96. Kennedy Nomination Hearings, supra note 11, at 208.

97. Id. at 209.

98. Id. at 139, 141. In his questioning of Judge Kennedy, Senator Grassley describes the Constitution as having “broad and spacious terms.”

99. In his now classic study entitled Individuals, the late Oxford philosopher P.F. [Peter Frederick] Strawson referred to the “body” as one of the “basic particulars” of what it means to be a person. See P.F. Strawson, Individuals: An Essay in Descriptive Metaphysics 39–41 (1959).

100. See J.M. Bernstein, Torture and Dignity: An Essay on Moral Injury 13 (2015); see also id. at 145. Another author referred to the “embodied beings” capacity to suffer as “prosaic and potentially painful reality.” See Hartley Dean, Introduction: Towards an Embodied Account of Welfare, in Social Policy and the Body: Transitions in Corporeal Discourse xi, xxiv (Kathryn Ellis & Hartley Dean eds., 2000).

101. See generally Giorgio Agamben, What Is an Apparatus?, in What Is an Apparatus? And Other Essays 1 (Werner Hamacher ed., David Kishik & Stefan Pedatella trans., 2009) (2006).

102. See generally Michel Foucault, The Birth of the Clinic: An Archaeology of Medical Perception (A.M. Sheridan Smith trans., 1973) (1963); Michel Foucault, Discipline and Punish: The Birth of the Prison (Alan Sheridan trans., 1977) (1975); 1 Michel Foucault, The History of Sexuality (Robert Hurley trans., 1978) (1976) ; Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings 1972–1977 (Colin Gordon ed., Colin Gordon et al. trans., 1980).

103. Bernstein, supra note 100, at 259.

104. Id. at 145. For the boundary metaphor in terms of protecting the integrity of the body, see Judith Jarvis Thomson, The Realm of Rights 205 (1990) (“A traditional metaphor for a person’s claims is a boundary: all around a person is a boundary (a fence or film or membrane) such that to cross it is to infringe one of his or her claims.”).

105. See Jeremy Waldron, Cruel, Inhuman, and Degrading Treatment: The Words Themselves 35 (N.Y.U., Pub. L. & Legal Theory Rsch. Paper Series, Working Paper No. 08-36, 2008), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1278604 [https://perma.cc/3SPQ-77LD]; see also Mohamedou Ould Slahi, Guantánamo Diary (Larry Siems ed., 2015). Slahi, a Mauritanian citizen, was abducted by the U.S. government from his homeland in 2001. Id. at 107, 126. The abduction was carried out with the cooperation of the Mauritanian government. Id. at 126. Slahi, who was held in Guantanamo from 2002 to 2016, details in this extraordinary diary a level of cruelty and inhumanity one would have expected only from a lawless third world regime, including denying him the ability to take a shower or brush his teeth for months so as to humiliate him. Every time his interrogator came in, he remarked “what a smell!” and “you smell like shit.” Id. at 232–33, 237; Mohamedou Slahi Released from Guantánamo After 14 Years Without Charge or Trial, ACLU (Oct. 17, 2016), https://www.aclu.org/press-releases/mohamedou-slahi-released-guantanamo-after-14-years-without-charge-or-trial [https://perma.cc/6P5E-BLFQ].

106. David C. Baldus et al., Equal Justice and the Death Penalty: A Legal and Empirical Analysis 140–41 (1990).

107. See State v. Santiago, 122 A.3d 1, 52 (Conn. 2015) (“The thirteen states that comprised the Confederacy have carried out more than 75 percent of the nation’s executions over the past four decades.”).

108. This was precisely the point that led to the emergence of the Black Lives Matter movement. The massive national demonstration demanding reform of policing was triggered by videos that showed how very little regard the police often have for Black lives. Blacks, especially Black men, have always talked about their fear that an encounter with law enforcement (sometimes even white citizens) puts their lives in danger, but other citizens seem to now realize how pervasive and structural the devaluation of the lives of Black citizens is and has been.

109. Frank I. Michelman, Brennan and Democracy 41 (1999).

110. Furman v. Georgia, 408 U.S. 238, 270–74, 277, 281, 285–86 (1972) (Brennan, J., concurring); see also Walton v. Arizona, 497 U.S. 639, 675 (1990) (Brennan, J., dissenting) (“[T]he concern for human dignity [lies] at the core of the Eighth Amendment . . . .”). Furman established a moratorium on the death penalty that lasted for four years until the Court ended it in Gregg v. Georgia, 428 U.S. 153, 206–07 (1976).

111. There were five separate concurring opinions. Furman, 408 U.S. at 240.

112. Trop v. Dulles, 356 U.S. 86, 100 (1958). The issue there was whether the revocation of the citizenship of a U.S. citizen was cruel and unusual punishment, which the Court characterized as “a form of punishment more primitive than torture.” Id. at 101.

113. Furman, 408 U.S. at 270.

114. Id.

115. Id.; see also William J. Brennan, Jr., In Defense of Dissents, 37 Hastings L.J. 427, 436 (1986) (noting that the Eighth Amendment’s prohibition of cruel and unusual punishment requires that “the state . . . must treat its citizens in a manner consistent with their intrinsic worth as human beings”).

116. Furman, 408 U.S. at 270, 294, 295 n.48 (Brennan, J., concurring) (“The State, even as it punishes, must treat its members with respect for their intrinsic worth as human beings.”).

117. Id. at 271.

118. Id. at 290 (“Death is truly an awesome punishment. The . . . killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity.”); see also id. at 291 (“[T]he deliberate extinguish[ing] of human life by the State is uniquely degrading to human dignity.”); Brennan, Jr., supra note 115, at 436 (“The most vile murder does not . . . release the state from constitutional restraints on the destruction of human dignity.”).

119. Furman, 408 U.S. at 273–74 (Brennan, J., concurring).

120. Glass v. Louisiana, 471 U.S. 1080, 1080 (1985) (Brennan, J., dissenting) (emphasis omitted).

121. Id. at 1093–94 (emphasis omitted); see also Autry v. McKaskle, 465 U.S. 1085, 1091 (1984) (Brennan, J., dissenting) (“[T]he death penalty in our society inevitably amounts to an inexcusable affront to ‘the dignity of man.’”).

122. Furman, 408 U.S. at 272–73 (Brennan, J., concurring); see also Walton v. Arizona, 497 U.S. 639, 675 (1990) (Brennan, J., dissenting) (“The fatal constitutional infirmity in the punishment of death is that it treats ‘members of the human race as nonhumans, as objects to be toyed with and discarded.’” (quoting Gregg v. Georgia, 428 U.S. 153, 230–31 (1976) (Brennan, J., dissenting))). Justice Brennan clearly thinks that the pain that is inflicted through the process of taking the life of the individual is a factor in determining whether a punishment is severe. Furman, 408 U.S. at 271 (Brennan, J., concurring) (“Pain, certainly, may be a factor in the judgment. The infliction of an extremely severe punishment will often entail physical suffering.”). It is, however, also true that Justice Brennan believed that the taking of life itself and the idea of waiting to be killed are degrading enough even if there is no sustained pain in the execution process. As he put it, “More than the presence of pain, however, is comprehended in the judgment that the extreme severity of a punishment makes it degrading to the dignity of human beings.” Id. at 272–73. Justice Brennan gives two other reasons for concluding that capital punishment is unconstitutional (other than the fact it is a violation of the inherent dignity of the individual): “[T]here is a strong probability that it is inflicted arbitrarily” and “there is no reason to believe that it serves any penal purpose more effectively than the less severe punishment of imprisonment.” Id. at 305. He also makes the controversial empirical argument that it is rejected “by contemporary society.” Id.

123. ACLU, A Death Before Dying: Solitary Confinement on Death Row 8–9 (2013), https://www.aclu.org/sites/default/files/field_document/deathbeforedying-report.pdf [https://perma.cc/4PAW-LL4S] (alteration in original) (quoting Soering v. United Kingdom, App. No. 14038/88, 11 Eur. H.R. Rep. 439, 463, 466 (1989)).

124. Andrew J. Novak, Toward a Global Consensus on Life Imprisonment Without Parole: Transnational Legal Advocates and the Zimbabwe Constitutional Court’s Decision in Makoni v Commissioner of Prisons, 62 J. African L. 315, 318 (2018); see Soering, 11 Eur. H.R. Rep. at 478;‎ U.N. Human Rights Committee, General Comment No. 36: Article 6 (Right to Life) ¶ 40, U.N. Doc. CCPR/C/GC/36 (Sept. 3, 2019); United States v. Burns, [2001] 1 S.C.R. 283, 286, 352–53 (Can.); Triveniben v. State of Gujarat, (1989) 1 SCR 509, 516 (India); S v. Makwanyane 1995 (6) BCLR 665 (CC) at para. 55 (S. Afr.). Interestingly, there is another emerging international norm that considers life sentence without the possibility of parole as one that is inconsistent with human dignity. For a survey of tribunals that have held so, see Novak, supra, at 316, 321, 323.

125. See, e.g., Gregg, 428 U.S. at 229–30 (Brennan, J., dissenting) (“A judicial determination whether the punishment of death comports with human dignity is therefore not only permitted but compelled by the Clause.”); Walton, 497 U.S. at 675 (Brennan, J., dissenting) (“[T]he death penalty is wholly inconsistent with the constitutional principle of human dignity . . . .”).

126. Brown v. Plata, 563 U.S. 493, 499, 510 (2011). See also Kennedy v. Louisiana, 554 U.S. 407, 412, 419–20 (2008), where Justice Kennedy argues that the Eighth Amendment’s prohibition on cruel and unusual punishment “must embrace and express respect for the dignity of the person.”

127. Atkins v. Virginia, 536 U.S. 304, 305–07, 321 (2002) (Justice Stevens wrote the majority opinion).

128. Roper v. Simmons, 543 U.S. 551, 554, 574, 578 (2005). Justice Kennedy wrote the majority opinion for a closely divided Court (5–4). Interestingly, the case overturned a 1989 decision (Stanford v. Kentucky) that Justice Kennedy himself had joined. Stanford v. Kentucky, 492 U.S. 361, 363 (1989).

129. For Justice Kennedy, “juveniles are more vulnerable or susceptible to negative influences . . . including peer pressure.” And even more importantly, “the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed.” The conclusion is that, therefore, juveniles are not as culpable as adult criminals. Roper, 543 U.S. at 555, 569–70.

130. Id. at 560.

131. Hall v. Florida, 572 U.S. 701, 703, 708 (2014).

132. Id. at 724.

133. Atkins v. Virginia, 536 U.S. 304, 321 (2002).

134. Hall, 572 U.S. at 708 (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958) (plurality opinion)).

135. Id. at 704, 708.

136. Id. at 724.

137. See id. at 708. On reading this paragraph, my colleague, Jancy Hoeffel, mentioned perhaps another possibility. Might it be, she asks, that Justice Kennedy fears that our historical attitude towards the intellectually disabled as not fully human might play a role in our willingness to dispose of them?

138. Kennedy v. Louisiana, 554 U.S. 407, 412 (2008). Patrick Kennedy, the defendant, was convicted of raping his eight-year-old stepdaughter under a Louisiana law that provided for capital punishment for raping a child under the age of twelve. Id. at 412–13. Five other states had similar laws. Id. at 423.

139. Id. at 446.

140. When the police arrived after having been called by the rapist himself, who had reported that neighborhood boys had raped her, they found the child “wrapped in a bloody blanket” and “bleeding profusely from the vaginal area.” Id. at 413.

141. See id. at 421 (“[A] death sentence for one who raped but did not kill a child, and who did not intend to assist another in killing the child, is unconstitutional under the Eighth and Fourteenth Amendments.”).

142. As one author called it, this is one of seeking “not the dignity of equality but rather the indignity of equality.” Kevin Barry, The Death Penalty & the Dignity Clauses, 102 Iowa L. Rev. 383, 406 (2017).

143. The Court concluded that “there [was] a national consensus against capital punishment for the crime of child rape.” Kennedy, 554 U.S. at 434. In this case, only six states authorized the death penalty for the rape of a child. Id. at 422.

144. Id. at 421; see also Roper v. Simmons, 543 U.S. 551, 564 (2005) (noting that after reviewing “objective indicia of consensus . . . . [w]e then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment”).

145. The Court uses this two-part test to determine, as it often says, the “evolving standards of decency.” See Kennedy, 554 U.S. at 420–21 (“Evolving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule.”).

146. Interestingly, many victim rights groups supported the ruling partly on the ground that many child rapes are perpetrated by family members and that it would be unthinkable that a child might implicate a family member—a parent, a sibling, or a relative—when doing so may lead to execution. See Laura Sullivan, High Court Bans Death Penalty for Raping Children, NPR (July 25, 2008, 12:07 PM), https://www.npr.org/2008/06/25/91878805/high-court-bans-death-penalty-for-raping-children [https://perma.cc/QQ8R-P97B]. Another Justice of the Supreme Court—Justice Harry Blackmun—evolved to that position over the course of his tenure on the Court. See Linda Greenhouse, Death Penalty Is Renounced by Blackmun, N.Y. Times (Feb. 23, 1994), https://www.nytimes.com/1994/02/23/us/death-penalty-is-renounced-by-blackmun.html [https://perma.cc/MX9N-F7D5]; Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting) (“From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored—indeed I have struggled— . . . to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”).

147. Hall v. Florida, 572 U.S. 701, 708, 724 (2014). Justice Kennedy argues that it was the nation’s “duty to teach human decency as the mark of a civilized world.” Id. That job will be infinitely complicated when the state is itself engaged in ending life. In relation to dignity, as in relation to any other right, the state has three separate duties: the duty to refrain from subjecting individuals to indignity; the duty to prevent third parties from debasing other human beings; and the duty to promote the culture of dignity, which includes “the duty to teach human decency as the mark of a civilized world.” Id.

148. Id. at 708; see, e.g., State v. Santiago, 122 A.3d 1, 32 (Conn. 2015).

149. Gonzales v. Carhart, 550 U.S. 124, 132–33 (2007).

150. Id. at 157.

151. Id. at 145 (noting that if the Court struck down the statute, “it is evident a premise central to [the statute]—that the government has a legitimate and substantial interest in preserving and promoting fetal life—would be repudiated”). Justice Kennedy concluded that the government had the right to use its “regulatory authority to show its profound respect for the life within the woman.” Id. at 157.

152. Stenberg v. Carhart, 530 U.S. 914, 957, 962, 965 (2000) (Kennedy, J., dissenting).

153. Id. at 921–22; id. at 948–50 (O’Connor, J., concurring).

154. Id. at 964. The congressional statute that was the issue in Gonzales was in fact a response to the Court’s decision in Stenberg. Gonzalez, 550 U.S. at 132–33. The issue of the physical integrity of the “life that lie within the embryo” was a factor that Justice Kennedy seems to have seen as a rational consideration of the Ohio legislature when it restricted the right of minors to have an abortion without family guidance. See Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 520 (1990) (“It would deny all dignity to the family to say that the State cannot take this reasonable step in regulating its health professions to ensure that, in most cases, a young woman will receive guidance and understanding from a parent.”).

155. Stenberg, 530 U.S. at 961–62.

156. Organization of American States, American Convention on Human Rights: “Pact of San Jose, Costa Rica,” art. 4, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123. Article 4 equivocates a bit by using the phrase “in general.” But its inclination is clear. The Inter-American Court of Human Rights, which has jurisdiction over the Convention, has pronounced that “conception” refers to as the moment where fertilized egg is implanted in the uterus. See Baby Boy v. United States, Case 2141, Inter-Am. Comm’n H.R., Report No. 23/81, OEA/Ser.L/V/II.54, doc. 9 rev. 1 (1981). On the other hand, the European Court of Human Rights interpreting the European Convention of Human Rights (whose provision on the right to life, Article 2, does refer to fetuses and conception) has refrained from reaching a similar conclusion as to whether the reference that “everyone” has a right to life includes fetuses. In Vo. v. France, the court observes, we have “yet to determine the issue of the ‘beginning’ of ‘everyone’s right to life’ within the meaning of this provision and whether the unborn child has such a right.” Vo. v. France, 2004-VIII Eur. Ct. H.R. 33 (2003).

157. See G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 1 (Dec. 10, 1948) (“All human beings are born free and equal in dignity and rights.”).

158. Drucilla Cornell, The Imaginary Domain: Abortion, Pornography & Sexual Harassment 47 (1995). Cornell continues, “They [her womb and body] have been turned over to the imagination of others, and those imaginings are then allowed to reign over her body as law.” Id. Thus, for Cornell, the right to an abortion is “necessary for the establishment of the minimum conditions of individuation for women.” Id. at 53.

159. Grundgesetz [GG] [Basic Law], art. 1(1) (Ger.), translation at http://www.gesetze-im-internet.de/englisch_gg/englisch_gg.pdf [https://perma.cc/5846-XKN2].

160. BVerfG, 2 BvF 2/90, May 28, 1993, commenting on abortion decision, BVerfGE 39, 1 (1975), (cited in Erin Daly, Dignity Rights, Courts, Constitutions, and the Worth of the Human Person 42 (2021)).

161. Id.

162. Gonzales v. Carhart, 550 U.S. 124, 158 (2007) (“Congress determined that the abortion methods it proscribed had a ‘disturbing similarity to the killing of a newborn infant,’ and thus it was concerned with ‘draw[ing] a bright line that clearly distinguishes abortion and infanticide.’” (citation omitted)).

163. Id. (citing Washington v. Glucksberg, 521 U.S. 702, 732–735 (1997), which noted that it is reasonable for the state to “fear that permitting assisted suicide will start it down the path to voluntary and perhaps even involuntary euthanasia”).

164. Id. at 159. Justice Ginsburg challenges Justice Kennedy’s notion that prohibiting “partial birth abortion” would protect a woman from the psychological and physical harm, hence indignity, that would ensue from a regret about a choice to have the abortion. She calls this an “antiabortion shibboleth” that “reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long been discredited.” Id. at 183–85. It also portrays a rather demeaning view of women, “women’s fragile emotional state.” Id. at 183–84.

165. Colucci observes that Justice Kennedy’s rhetoric about:

     [H]uman dignity, liberty, and postabortion regret resonates with the language of papal statements issued after Vatican II, including Dignitatis Humanae (On Religious Liberty) and two other major writing from John Paul II—Mulieris Dignitatem (On the Dignity and Vocation of Women) and Evangelium Vitae (On the Value and Inviolability of Human Life). These sources may provide ‘objective referents’ to Justice Kennedy’s rhetoric about the nature of liberty and the abortion decisions.

     Colucci, supra note 30, at 72. For an extended discussion of Justice Kennedy’s rhetoric and the substance of these documents, see id. at 72–74.

166. Gonzales, 550 U.S. at 184–85 (Ginsburg, J., dissenting).

167. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022).

168. Id. at 2236 (“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.’”). The Court again tries to reassure readers that its other privacy rights are safe. The reason: because they “are inherently different from the right to abortion, because the latter (as we have stressed) uniquely involves . . . ‘potential life.’” Id. at 2280. It is not quite clear how the fact that a potential life is involved is a legally relevant factor for distinguishing the abortion cases from other cases that are premised on constitutional privacy—“protecting autonomous decision-making over the most personal of life decisions,” as the joint dissent notes. Id. at 2319 (Breyer, Sotomayor, and Kagan, JJ., dissenting). At any rate, the abortion cases they cite for affirming the integrity of the fetus also talked about the autonomy and integrity of the woman, about which Justice Alito’s majority opinion says nothing. As the dissent observes, “the majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.” Id. at 2347–49.

169. Id. at 2317. Let me just note here that Justice Kavanaugh also invoked dignity in his concurrence. But interestingly it was not to describe the interests of the woman but that of the fetus. Attempting to describe what he saw to be the deeply held views of the opposing groups on the issue of abortion, Kavanaugh invoked “human dignity” to refer to the value that animated those who oppose abortion. Human dignity here is meant to describe the view that the fetus was human and its destruction is the destruction of life. Id. at 2304 (Kavanaugh, J., concurring). Of course, human dignity can be (and has been) used to describe the autonomy and integrity of the woman who seek to have an abortion.

170. Id. at 2328 (Breyer, Sotomayor, and Kagan, JJ., dissenting).

171. Id. at 2329. Emphasizing the indignity that this decision puts women under, the dissent later in its opinion makes the observation that the Dobbs decision “strips women of agency over what even the majority agrees is a contested and contestable moral issue.” Id. at 2333.

172. Id. at 2346.

173. Brown v. Plata, 563 U.S. 493, 510 (2011). Justice Kennedy also made the general observation that “[r]espect” for “the essence of human dignity inherent in all persons . . . animates the Eighth Amendment prohibition against cruel and unusual punishment.” Id.; see also Roper v. Simmons, 543 U.S. 551, 560 (2005) (“By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.”).

174. Brown, 563 U.S. at 510–11 (“A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”).

175. By “humiliation,” I mean to refer to Brown. Id. at 510–11 (“Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”).

176. Olmstead v. L.C., 527 U.S. 581, 609 (1999) (Kennedy, J., concurring) (emphasis added) (quoting E. Torrey, Out of the Shadows 11 (1997)).

177. Parham v. J.R., 442 U.S. 584, 626 (1979) (Brennan, J., concurring in part and dissenting in part).

178. Id.

179. U.S Const. amend. IV.

180. Skinner v. Ry. Lab. Executives’ Ass’n, 489 U.S. 602, 613–14 (1989). Justice Kennedy’s majority opinion repeats this observation in City of Ontario v. Quon, 560 U.S. 746, 755–56 (2010).

181. Skinner, 489 U.S. at 606, 615–16 (quoting Schmerber v. California, 384 U.S. 757, 767–78 (1966)).

182. See id. at 616–17.

183. Id. at 625, 633–34.

184. Id. at 617, 625.

185. Schmerber, 384 U.S. at 762 (quoting Miranda v. Arizona, 384 U.S. 436, 460 (1966)); see also id. at 767 (“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.”).

186. Anthony M. Kennedy, 1988–2018, Sup. Ct. Hist. Soc’y, https://supremecourthistory.org/associate-justices/anthony-m-kennedy-1988-2018 [https://perma.cc/F8KZ-KMU7] (last visited Oct. 28, 2022). See United States v. Cameron, 538 F.2d 254, 259 (9th Cir. 1976), where Justice Kennedy, writing for the majority, described body cavity searches as “constituting a serious affront to bodily integrity and personal dignity” and particularly extreme in their affront. Although there are several references to dignity in Justice Kennedy’s opinions while he was serving on the Ninth Circuit, in most of those decisions there was simply a passing reference to the idea of dignity. See, e.g., Spain v. Procunier, 600 F.2d 189, 197, 200 (9th Cir. 1979). However, Cameron seems relevant to the extent that it reinforces the idea of integrity and personhood that seemed to have animated Justice Kennedy’s use of dignity as an Associate Justice of the Supreme Court.

187. As the discussion on “existential minimum” in this section shows, there does not need to be the intent to subject one to indignity for indignity to occur.

188. G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. 23(3) (Dec. 10, 1948); see also id. art. 22 (“Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”). Oscar Schachter, who was one of the first modern international legal scholars that explored the scope of dignity, wrote that dignity contemplates existential minimum. Schachter lists “[d]egrading living conditions and deprivations of basic needs” as ones that “denigrate the worth and dignity of individuals.” See Oscar Schachter, Human Dignity as a Normative Concept, 77 Am. J. Int’l L. 848, 852 (1983).

189. See G.A. Res. 2200A (XXI), International Covenant on Economic, Social and Cultural Rights art. 11(2) (Dec. 16, 1966) (“The State Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed [to provide for that existential minimum].”). In his State of the Union address, which is now known as the Four Freedoms Speech (Jan. 6, 1941), one of the four freedoms that President Franklin D. Roosevelt of the United States proposed was “freedom from want” where the essential needs of people are met. President Franklin Roosevelt’s Annual Message (Four Freedoms) to Congress (1941), Nat’l Archives, https://www.archives.gov/milestone-documents/president-franklin-roosevelts-annual-mess
     age-to-congress [https://perma.cc/F3ZU-DRUB] (last visited Sept. 30, 2022).

190. See Comm. on Econ., Soc., & Cultural Rts., General Comment No. 3: The Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant), U.N. Doc. E/1991/23 ¶ 10 (Dec. 14, 1990); Comm. on Econ., Soc., & Cultural Rts., General Comment No. 4: The Right to Adequate Housing (Art. 11 (1) of the Covenant), U.N. Doc E/1992/23 ¶ 1 (Dec. 13, 1990).

191. Bundesverfassung [BV] [Constitution] Apr. 18, 1999, SR 101, art. 12 (Switz.) (amended 2014). The new version uses the phrase “for a decent standard of living” rather than for “a life in human dignity,” but the sentiment seems to be the same. Id. (translation as of Feb. 13, 2022).

192. See, e.g., Const. of Fin. § 19 (“Those who cannot obtain the means necessary for a life of dignity have the right to receive indispensable subsistence and care.”); Art. 38 Costituzione [Cost.] (It.) (“Every citizen unable to work and without the necessary means of subsistence shall be entitled to welfare support.”); Const. of the Republic of Burundi art. 27, 52; Dom. Rep. Const. art 62(9); Bol. Const. art. 19(1); Guat. Const. art. 78; Const. of the Republic of Cape Verde art. 69; Nihonkoku Kenpō [Kenpō] [Constitution] art. 25 (Japan) (“All people shall have the right to maintain the minimum standards of wholesome and cultured living.”). The Japanese constitutional right is implemented through the Public Assistance Act. Article 3 of the statute guarantees for a minimum level of assistance for a wholesome living. 生活保護法, [Public Assistance Act], Law No. 144 of 1950, art. 3, translated in (Japanese Law Translation [JLT DS], https://www
     .japaneselawtranslation.go.jp/en/laws/view/24 (Japan). The Iraqi Constitution links human dignity to work by claiming that “[w]ork is a right for all Iraqis in a way that guarantees a dignified life for them.” Article 22, Dustūr Jumh. ūrīyat al-'Irāq [The Constitution of the Republic of Iraq] of 2005.

193. See Alexy, supra note 76, at 290 (“[T]here can hardly be any doubt that the Federal Constitutional Court presupposes the existence of a constitutional right to an existential minimum.”); see also BVerfG, Nov. 23 1976, BVerfGE 43, 108 (121) (Ger.) (children’s allowance); BVerG, May 29 1990, BVerfGE 82, 60 (80) (tax-free subsistence minimum); BVerfG, June 18 1975, BVerfGE 40, 121 (133) (Orphan’s Pension II, establishing the doctrine of minimum substance). The German parliament has codified a notion of existential minimum in its Social Security Code. Sozialgesetzbuch, Erstes Buch [SGBI] [Social Code Book I] § 1, para. 1 (as amended), https://www.gesetze-im-internet.de/sgb_1/__1.html [https://perma.cc/N7K3-8HUL], cited in Susanne Baer, Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism, 59 U. Toronto L. J. 417, 445 (2009).

194. BVerfG, July 18, 2012, BVerfGE 132, 134–179 (Ger.). The statute at issue was the Asylum Seeker Benefit Act, which awarded benefits to asylum seekers at a much lower rate than that for citizens. Id. at 137.

195. Id. at 158–59; Grundgesetz [GG] [Basic Law], art. 1(1) (“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”). The court used the human dignity provision along with Article 20 of the Basic Law, which declares Germany as a “democratic and social federal state” to insist that an existential minimum be granted to migrants. Id. art. 20.

196. BVerfG, BVerfGE 132, at 174. Asylum seekers were given significantly less benefits than were given to German citizens. Id. at 137.

197. See id. at 159; see also German Constitutional Court Deems Material Conditions for Asylum Seekers in Germany Unconstitutional, Pro Asyl (July 19, 2012) [hereinafter German Constitutional Court], https://www.proasyl.de/en/pressrelease/german-constitutional-court-deems-material-reception-conditions-for-asylum-seekers-in-germany-unconstitutional/ [https://perma.cc/5XFU-DE68]; Provisions Governing Basic Cash Benefits Provided for in the Asylum Seekers Benefits Act Held Unconstitutional, Bundesverfassungsgericht (July 18, 2012), https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/DE/2012/bvg12-056.html [https://perma.cc/B8MU-HHQR].

198. BverfG, BverfGE 132, at 173. The court here was responding to the argument that generous amounts will serve as incentives to asylum seekers. Id.

199. Id. at 160. A similar argument was made by Jürgen Habermas. See Habermas, supra note 75.

200. Brown v. Plata, 563 U.S. 493, 510–11 (2011) (emphasis added). What made the requirement of existential minimum pertinent here for the Court is the fact that prisoners were in the state’s custody and unable to provide their own existential minimum. Id.

201. Id. at 510 (“As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. ‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’” (quoting Atkins v. Virginia, 536 U.S. 304, 311 (2002))).

202. One explanation for Justice Kennedy’s requirement of existential minimum for people in the custody of the government might be tied to the background or small “c” constitutional norm that individuals in the United States have the opportunity to fend for themselves. Under that assumption, the lack of existential minimum is not for lack of opportunities but the result of choices that people have made. On the other hand, when people are in the custody of the government, people are deprived of those opportunities and thus whether there is the necessary existential minimum will be within the government control, not the individuals.

203. See supra note 91 and accompanying text.

204. John Stuart Mill, On Liberty 126–28 (David Bromwich & George Kate eds., 2003) (1859).

205. Of course, autonomy will be limited by Mill’s harm principle. Id. at 121.

206. See Barbara Herman, The Practice of Moral Judgement 6 (1993); Immanuel Kant, Practical Philosophy 81 (Mary J. Gregor ed. & trans.) (Cambridge University Press, Cambridge 1996); see also Eduardo Mendieta, The Legal Orthopedia of Human Dignity: Thinking with Axel Honneth, 40 Phil. & Soc. Criticism 799, 804–06 (2014).

207. Ronald Dworkin, Is There Democracy Possible Here? Principles for a New Political Debate 16–17 (2006); Dworkin, supra note 73, at 193.

208. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (plurality opinion).

209. Id. The Casey majority opinion begins with “liberty” and ends with “liberty.” Id. at 844, 901. Justice Stevens, who concurred in part and dissented in part, agreed with the authors of the joint opinion when he observed that the right “to make such traumatic and yet empowering decisions is an element of basic human dignity.” Id. at 916 (Stevens, J., concurring in part and dissenting in part).

210. Id. at 851 (majority opinion). Justice Stevens in his concurrence makes the same point more directly and clearly when he observed thusly, “[t]he authority to make such . . . decisions is an element of basic human dignity.” Id. at 916 (Stevens, J., concurring in part and dissenting in part).

211. Id. at 851 (majority opinion) (“Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”).

212. Id. at 847.

213. Lawrence v. Texas, 539 U.S. 558, 574 (2003) (“Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” (emphasis added)).

214. Casey, 505 U.S. at 852.

215. Lawrence, 539 U.S. at 562, 573–74, 578 (quoting Casey, 505 U.S. at 851).

216. Obergefell v. Hodges, 576 U.S. 644, 651, 663–64 (2015).

217. Id. at 651–52 (emphasis added).

218. Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 506, 520 (1990).

219. Obergefell, 576 U.S. at 651, 663.

220. Kennedy Nomination Hearings, supra note 11, at 180. Perhaps one could plausibly read “individuality” as another way of saying autonomy, but individuality does not necessarily assume autonomy.

221. See, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851–53 (1992).

222. Akron Ctr. for Reprod. Health, 497 U.S. at 506–08, 520.

223. Id. at 506, 520.

224. Jeremy Waldron, The Dignity of Groups, in Acta Juridica 66, 76 (Jan Glazewski ed., 2008).

225. Joseph Raz, The Morality of Freedom 55–56 (1988).

226. See Waldron, supra note 224, at 75–76. Let me add here that Waldron does not entirely embrace the service conception of dignity, for he “cannot rule out the possibility that groups and group entities may have a value in themselves.” Id. at 82.

227. Akron Ctr. for Reprod. Health, 497 U.S. at 520.

228. G.A. Res. 217 (III) A, Universal Declaration of Human Rights, at 71–72 (Dec. 10, 1948).

229. See German Constitutional Court, supra note 197.

230. See, e.g., Alan Gewirth, Human Dignity as the Basis of Rights, in The Constitution of Rights: Human Dignity and American Values 10, 28 (Michael J. Meyer & William A. Parent eds., 1992) (noting that dignity is an essential “basis of human rights”).

231. Obergefell v. Hodges, 576 U.S. 644, 651, 660–61, 672 (2015).

232. Avishai Margalit, The Decent Society 108 (Naomi Goldblum trans., 1996).

233. Kapper Lippert-Rasmussen defines “social salience” as follows: “A group is socially salient if perceived membership of it is important to the structure of social interactions across a wide range of social contexts.” See Kapper Lippert-Rasmussen, Born Free and Equal?: A Philosophical Inquiry into the Nature of Discrimination 30 (2014); see also Michael P. Foran, Grounding Unlawful Discrimination, 28 Legal Theory 3, 11 (2022).

234. Bernstein, supra note 100, at 212.

235. Orlando Patterson, Slavery and Social Death: A Comparative Study 38 (1982); see also Orlando Patterson, Freedom Volume 1: Freedom in the Making of Western Culture 9–10 (1991) (“[T]he slave is always an excommunicated person. He, more often she, does not belong to the legitimate social or moral community; he has no independent social existence; he exists only through, and for, the master; he is, in other words, natally alienated.”).

236. Patterson, Slavery and Social Death, supra note 235, at 38.

237. Strauder v. West Virginia, 100 U.S. 303, 304, 308 (1879).

238. Brown did not explicitly invoke dignity, but the argument here is that if properly read, dignity underlies the unanimous decision of the Court in Brown. Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954). For a similar observation, see William A. Parent, Constitutional Values and Human Dignity, in The Constitution of Rights: Human Dignity and American Values 47, 58–59 (Michael J. Meyer & William A. Parent eds., 1992).

239. Brown, 347 U.S. at 494.

240. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 243, 249–50 (1964).

241. See id. at 257. The Court has also invoked “personal dignity” or “human dignity” to strike down exclusion of people from jury service on the basis of race. See Powers v. Ohio, 499 U.S. 400, 402 (1991) (“[R]acial discrimination in the qualification or selections of jurors offends the dignity of persons . . . .”). Dealing with exclusions of jurors based on gender, the Court concluded in J.E.B. v. Alabama ex rel. T.B. that such an exclusion is “practically a brand upon them, affixed by the law, an assertion of their inferiority. . . . It denigrates the dignity of the excluded juror, and, for a woman, reinvokes a history of exclusion from political participation.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 142 (1994) (quoting Strauder, 100 U.S. at 308).

242. Powers, 499 U.S. at 402.

243. Id. at 402, 413—14. Justice Kennedy repeats this observation in J.E.B. v. Alabama ex rel. T.B., 511 U.S. at 153 (explaining that the injury that the excluded suffers is, among other things, one “to personal dignity”). See also Edmonson v. Leesville Concrete Co., 500 U.S. 614, 628, 630–31 (1991); Powers, 499 U.S. at 402 (proposing that racial discrimination in the “selection of jurors offends the dignity of persons and the integrity of the courts”). And he claims that the Court has never in the past “questioned [that] premise.” Id.; see also Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 867 (2017) (explaining that racial classifications “are so inconsistent with our commitment to the equal dignity of all persons” and we must “purge racial prejudice [in this case, juror stereotype] from the administration of justice”).

244. Rice v. Cayetano, 528 U.S. 495, 498– 99 (2000). The statute also limited candidacy for election to the board of trustees to “Hawaiians,” which includes “native Hawaiians” and is defined as “persons who are descendants of people inhabiting the Hawaiian Islands in 1778.” Id. at 499, 509.

245. Id. at 498, 517, 522.

246. Id. at 498, 517 (emphasis added).

247. Id. at 498, 517, 523–24 (referring to the restriction on the basis of ancestry as giving rise to “indignities”).

248. It is clear for Justice Kennedy that the “avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.” United States v. Windsor, 570 U.S. 744, 747, 770 (2013); see also Fisher v. Univ. of Tex., 136 S. Ct. 2198, 2214 (2016) (“[I]t remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment.”); see also Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 797 (2007) (“To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society.”).

249. This case was a subject of reflection in Tamar Hostovsky Brandes & Idit Shafran Gittleman, The Israeli Supreme Court’s Decision in Tziam v. the Prime Minister, Lawfare (Sept. 24, 2018, 3:05 PM), https://www.lawfareblog.com/israeli-supreme-courts-decision-tziam-v-prime-minister [https://perma.cc/6R64-6GSF].

250. Id.

251. Id.

252. Id.

253. See Bernard Williams for the Western tradition. See infra note 257. In the Confucian tradition, the special value of the individual is said to lie in one’s capacity and responsibility to connect with other human beings. That is “a truly human and worthwhile life.” See David B. Wong, Reflection: Dignity in Confucian and Buddhist Thought, in Dignity: A History 72 (Remy Debes ed., 2017).

254. . Yoshino, supra note 53, at viii.

255. Id. at ix–xii. Of course, one is not blaming the coverer for not being truthful of who he or she is, for it is the unattractive options that one is often faced with that make it rather hard for the person to present himself or herself wholly. If the individual is open about who he is, often the options are (were) that the person faces criminal sanctions (that is the case in many countries) and/or he will be subject to enormously consequential cultural and social sanctions.

256. Charles Taylor, The Ethics of Authenticity 29 (1991).

257. See Bernard Williams, Persons, Character and Morality, in Moral Luck: Philosophical Papers 1973–1980 5 (Bernard Williams ed., 1981).

258. Mill, supra note 58, at 101 (“A person whose desires and impulses are his own . . . is said to have a character.”). At another point, Mill makes the point even more strongly, when he opined that one “who lets the world . . . choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation . . . But what will be his comparative worth as a human being?” Id. at 99.

259. Williams, supra note 257, at 12; see also Oscar Schachter, Human Dignity as a Normative Concept, 77 Am. J. Int’l L. 848, 850 (1983).

260. Jean-Paul Sartre, Existentialism Is a Humanism 18–20, 23 (John Kulka ed., Carol Macomber trans., 2007).

261. See Nancy Schauber, Integrity, Commitment and the Concept of a Person, 33 Am. Phil. Q. 119, 122–23 (1996). Schauber views these “projects” as “constitutive of ourselves” and ways through which we express ourselves in the world. Id. at 122.

262. Margalit, supra note 232, at 85.

263. Lawrence v. Texas, 539 U.S. 558, 562, 567 (2003).

264. Id. at 562–63, 567.

265. Id. at 562, 567.

266. Id.

267. Id. at 562, 575.

268. Justice O’Connor, concurring with the judgment of the majority but striking it under the Equal Protection Clause, responded to the State’s argument that the statute does not discriminate against homosexuals but only against homosexual conduct by pointing out the obvious: “While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual.” Id. at 583.

269. United States v. Windsor, 570 U.S. 744, 752 (2013).

270. See Defense of Marriage Act (DOMA) § 3(a), 1 U.S.C. § 7 (“In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”).

271. Windsor, 570 U.S. at 749, 752–53.

272. Id. at 750. In 2011, New York defined marriage to include same-sex couples. See id. at 769.

273. Id. at 750, 751.

274. Id. at 747, 775.

275. Liz Halloran, Explaining Justice Kennedy: The Dignity Factor, NPR (June 28, 2013, 2:42 PM), http://www.npr.org/sections/thetwo-way/2013/06/27/196280855/explaining-justice-kennedy-the-dignity-factor [https://perma.cc/HMF5-73TU].

276. Windsor, 570 U.S. at 747, 768.

277. See Jeremy Waldron, Dignity, Rank, and Rights 240–41 (2012). Waldron is probably the most prominent promoter of the idea that the modern notion of human dignity is simply the universalization of the ancient notion of dignity-as-rank. Everyone is simply raised to the rank of nobility. The modern notion of human dignity, Waldron notes, establishes a “single-status system . . . that entitles everyone to something like the treatment . . . that was previously confined to high-status individuals.” Id. at 241. It is not quite clear how and when this transformation took place. But it appears that for Waldron this new status is not derived from a moral requirement but is a contingent status that has emerged as a matter of conventions.

278. Windsor, 570 U.S. at 747, 768 (“When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.”). In his dissent in Obergefell v. Hodges, Justice Thomas seems to respond to Justice Kennedy’s observation in Windsor that New York conferred dignity on the plaintiff that the federal government seeks to deny by asserting that “the government would be incapable of bestowing dignity.” Obergefell v. Hodges, 576 U.S. 644, 735 (2015) (Thomas, J., dissenting). Justice Thomas’s argument is that human dignity is “innate,” and that inherent worth is bestowed by a higher being (the Creator), not by government. At least, he argues, that is how the Framers understood human dignity. Id. Of course, “[t]he corollary” of the principle that dignity cannot be conferred by government is that it “cannot be taken away by the government” either. Id.

279. Windsor, 570 U.S. at 747, 769.

280. Justice Kennedy calls the act of the State of New York “a proper exercise of its sovereign authority within our federal system.” Id.

281. Id. (“DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government.”). What is interesting is that at another place in the opinion, Justice Kennedy had claimed that the issue of federalism need not be decided here. See id. at 747, 768.

282. Id. at 769. Justice Thomas seems to reject the idea of dignity-as-rank in his separate dissent in Obergefell. Obergefell, 576 U.S. at 735 (Thomas, J., dissenting) (noting that the flaw in the majority’s reasoning that “its decision will advance the ‘dignity’ of same-sex couples” is “that the Constitution contains no ‘dignity’ Clause, and even if it did, the government would be incapable of bestowing dignity”).

283. Windsor, 570 U.S. at 747, 769 (quoting Lawrence v. Texas, 539 U.S. 558, 567 (2003)). By recognizing same-sex marriage, “New York sought to give further protection and dignity to that bond.” Id. at 769.

284. Dignity is here explicated from the constitutional principle of equality. Id. at 772 (explaining that the statute “places same-sex couples in an unstable position of being in a second-tier marriage” and that “differentiation demeans the couple, whose moral and sexual choices the Constitution protects”). Indeed, Justice Kennedy notes that what the federal government sought to take that New York had conferred is a right of “personhood and dignity.” Id. at 747, 775.

285. Id. at 769.

286. Id. at 775.

287. Id. at 747, 772.

288. Obergefell v. Hodges, 576 U.S. 644, 651, 656 (2015).

289. Id. at 658. Other plaintiffs were added in the amended complaint. Id.

290. Id. at 655 (“The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition.”).

291. Id. at 651, 656.

292. Id. I have argued in another article that this observation is too sweeping. Addis, Dignity, Integrity, and the Concept of a Person, supra note 16, at 365.

293. Obergefell, 576 U.S. at 651, 657.

294. Id. at 667 (“The right to marry thus dignifies couples who ‘wish to define themselves by their commitments to each other.’” (quoting United States v. Windsor, 570 U.S. 744, 763 (2013))).

295. Id. at 651, 666.

296. Id. at 660 (“[M]any persons did not deem homosexuals to have dignity in their own distinct identity.”).

297. Id. at 651, 656–57, 659.

298. Id. at 660–61; see also Windsor, 570 U.S. at 772 (“Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.”).

299. Justice Kennedy characterizes sexual orientation as an “immutable” aspect of identity. See Obergefell, 576 U.S. at 651, 658 (“And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”); see also id. at 661 (“Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”). The notion of immutability is not beyond controversy. See, e.g., Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption and the Case of “Don’t Ask, Don’t Tell,” 108 Yale L.J. 485, 504 (1998). I think the best way to understand immutability is not in the sense that the trait is strictly unchangeable “but whether the characteristic is a core trait or condition that one cannot or should not be required to abandon.” Obergefell v. Wymyslo, 962 F. Supp. 2d 968, 990 (S.D. Ohio 2013), rev’d sub nom. DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), rev’d sub nom. Obergefell, 576 U.S. 644.

300. See Obergefell, 576 U.S. at 651, 658, 663, 666–67, 670, 672 (showing that Justice Kennedy views commitments as an important part of one’s identity and hence protected through liberty or dignity); see also Minister of Home Affairs v. Fourie 2006 (3) BCLR 355 (CC) at 10 para. 16 (S. Afr.) (cited in Daly, supra note 160, at 42 & n.62).

301. Obergefell, 576 U.S. at 667 (comparing the circumstances in Lawrence and Obergefell).

302. Id. at 651–52.

303. Justice Kennedy saw the exclusion as a way of diminishing and demeaning those who were excluded. Id. at 670, 672.

304. Id. at 651, 678 (emphasis added). A “wound,” whether physical or social, is, of course, a result of an attack on the integrity of the person.

305. Id. at 651–52.

306. Id. at 651, 660; see also Lawrence v. Texas, 539 U.S. 558, 562, 575 (2003) (“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.”).

307. Obergefell, 576 U.S. at 651, 660 (emphasis added).

308. See id. at 651, 670 (“As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.”).

309. Id. at 671 (“[L]aws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter.”); see also Lawrence, 539 U.S. at 575 (“The stigma this criminal statute imposes . . . is not trivial. . . . [Though] a minor offense . . . it remains a criminal offense with all that imports for the dignity of the persons charged.”).

310. Obergefell, 576 U.S. at 651, 673 (quoting Loving v. Virginia, 388 U.S. 1, 12 (1967)).

311. Id. at 651, 681 (noting that gay citizens “ask for equal dignity in the eyes of the law” and “[t]he Constitution grants them that right”).

312. See id. at 651, 672 (“Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. . . . [T]he two Clauses may converge in the identification and definition of the right. This interrelation of the two principles furthers our understanding of what freedom is and must become.” (citations omitted)); see also id. at 673 (“Each concept—liberty and equal protection—leads to a stronger understanding of the other.”).

313. Justice Kennedy in fact frames the claimed interest as one of “equal dignity.” The petitioners “ask for equal dignity in the eyes of the law.” Id. at 651, 681.

314. Tribe, supra note 27, at 17; see also id. at 22 (“So it is that the dominant strain in Justice Kennedy’s writings on dignity—the strain that achieved full expression in Obergefell—has become the notion of equal dignity as the very foundation of individual human rights.”); see also id. at 23 (“Justice Kennedy has wound the Equal Protection and Due Process Clauses more tightly, finally fusing them together in Obergefell with the notion of ‘equal dignity in the eyes of the law.’” (quoting Obergefell, 576 U.S. at 681)).

315. Obergefell, 576 U.S. at 651, 672 (explaining that the two Clauses are “connected in a profound way” in the manner in which they “converge in the identification and definition of [a] right.”); see also Lawrence v. Texas, 539 U.S. 558, 575 (2003) (“Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests.”).

316. See Lawrence, 539 U.S. at 575.

317. Tribe, supra note 27, at 17.

318. Obergefell, 576 U.S. at 672–73 (“The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions.” (discussing Loving v. Virginia, 388 U.S. 1 (1967)).

319. See, e.g., Frank Bruni, Hate Is So Much Bigger Than Trump, N.Y. Times (Aug. 10, 2019), https://www.nytimes.com/2019/08/10/opinion/hate.html [https://perma.cc/CZM8-MBLQ] (“My inbox is proof of that; the evidence stretches back decades. And I’m talking in this case not about irate and sometimes foul-mouthed readers who dislike my opinions. All columnists encounter that, and given the privilege of our megaphones, we should. I’m talking about readers who detest the very fact of me, who I am, independent of any person or issue I lift up or tear down.”).

320. Obergefell, 576 U.S. at 651, 670.

321. Id. at 651, 672.

322. See, e.g., Obergefell, 576 U.S. at 673, 740 (“The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from the laws barring interracial unions.”).

323. Id. at 673.

324. Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1727 (2018).

325. Lawrence v. Texas, 539 U.S. 558, 575 (2003).

326. Bowers v. Hardwick, 478 U.S. 186 (1986).

327. Lawrence, 539 U.S. at 562, 575 (emphasis added).

328. Bowers, 478 U.S. at 190. The demeaning process in Bowers started with the Court’s formulation of the question itself: “The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy . . . .” Id.

329. Dworkin, supra note 64, at 11, 16.

330. The phrase is taken from Frank I. Michelman, Brennan and Democracy 40 (1999). Michelman observes that Justice Brennan “carried with him to the Supreme bench . . . the inestimable value of the ever-redeemable dignity of the individual human being.” Id. Justice Brennan makes the point directly when he observes in one of his writings that he was not suggesting “that we have . . . achieved a comprehensive definition of the constitutional ideal of human dignity,” for “the demands of human dignity will never cease to evolve.” See William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433, 443 (1986).

331. Lawrence, 539 U.S. at 562, 579; see also id. at 562, 572 (showing that Justice Kennedy notes that “history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry” (quoting County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring)); Kennedy Nomination Hearings, supra note 11, at 153.

332. United States v. Windsor, 570 U.S. 744, 747, 769, 792 (2013).

333. Obergefell v. Hodges, 576 U.S. 644, 664 (2015). Compare Justice Alito’s rather extraordinarily limited and frozen view of the role of history and tradition in constitutional interpretation in his majority opinion in Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228, 2260 (2022).

334. Obergefell, 576 U.S. at 664.

335. Kennedy Nomination Hearings, supra note 11, at 140, 148, 152.

336. Id. at 153.

337. Obergefell, 576 U.S. at 672. Over the years, people have used different terms to express the nature of indignity, such as subordination, stigmatization, etc. And then personhood is protected with its opposite such as antisubordination.

338. Lawrence v. Texas, 539 U.S. 558, 572 (2003) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 857 (1998) (Kennedy, J., concurring)).

339. Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 86, 88 (2000); Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership 70–71 (2006); Martha C. Nussbaum, Creating Capabilities: The Human Development Approach 18 (2011).

340. Margalit, supra note 232, at 51.

341. Id. at 84–85.

342. Id. at 122 (“Humiliation involves an existential threat.”).

343. G.A. Res. 217 (III) A, Universal Declaration of Human Rights, at 72 (Dec. 10, 1948).

344. Obergefell v. Hodges, 576 U.S. 644, 651, 669 (2015).

345. Margalit, supra note 232, at 4.

346. Ignatieff, supra note 20, at 173.

347. Samuel Moyn, Are Human Rights Enough?, New Humanist (July 9, 2018), https:
     //newhumanist.org.uk/articles/5340/are-human-rights- [https://perma.cc/AW3E-UH2L].

348. These thresholds have similarities to Martha Nussbaum’s capabilities and functions. Nussbaum lists what she refers to as basic human capabilities, that includes bodily integrity, that she believes are necessary for a dignified social minimum. She then writes “that the structure of social and political institutions should be chosen, at least in part, with a view to promoting at least a threshold level of these human capabilities.” Nussbaum, Women and Human Development, supra note 339, at 74–75, 78–80.

349. Cohen, supra note 20, at 191 (quoting Michael Ignatieff).

350. Id.