dignity, Ludwig Wittgenstein
Few words play a more central role in modern constitutional law without appearing in the Constitution than dignity. The term appears in nearly one thousand Supreme Court opinions, but despite its popularity, dignity is a concept in disarray. Its meaning and functions are commonly presupposed, but rarely articulated. The result is a cacophony of uses so confusing that some critics argue that word ought to be abandoned altogether.
This Article fills a void in the literature by offering the first empirical study of Supreme Court opinions that invoke dignity, and then proposing a typology of dignity based on a Wittgensteinian analysis of those opinions. The dataset reveals three important findings. First, the Court’s reliance on dignity is increasing, and the Roberts Court is accelerating that trend. Second, in contrast to its past use, the more conservative Justices on the Court are now as likely to invoke dignity as their more liberal counterparts. Finally, the dataset demonstrates that dignity is not one concept, as other scholars have theorized, but rather that dignity admits of five related conceptions.
The typology refers to these conceptions of dignity as: institutional status as dignity, liberty as dignity, equality as dignity, personal integrity as dignity, and collective virtue as dignity. This Article traces each type of dignity to its epistemic origins and describes the substantive dignitary interests each protects. Importantly, the typology offers more than a clarification of the conceptual chaos surrounding dignity. It provides tools to track the Court’s use of different types of dignity over time. This permits us to detect doctrinally transformative moments, in such areas as state sovereign immunity and abortion jurisprudence, which arise from shifting conceptions of dignity.
160 University of Pennsylvania Law Review 169 (2011).