The Utility Infielder of Constitutional Jurisprudence

Over at Volokh Conspiracy, Orin Kerr points out the affinity that Justice Kennedy, indisputably the most influential member of the Court at the moment, has for the word "dignity." Dignity has become an all-purpose purpose for state action, something like a utility infielder for constitutional justification. Why does the Court prohibit states from criminalizing sodomy? To protect the putative "dignity" of autonomously-chosen homosexual relationships. Why are States entitled to sovereign immunity from lawsuits by their citizens? To protect the States' "dignity."

One derives the impression that Kennedy (and those Justices trying to secure Kennedy's swing vote) employ the word "dignity" whenever they can find no articulable justification for their decision. So, for example, in Lawrence v. Texas the Court struck down a criminal prohibition against sodomy. That decision served no purpose other than elevating homosexual intimacy to moral equivalence with conjugal monogamy. But the Court could not say that it was lending the approbation of the United States government to homosexual intimacy. So Justice Kennedy, writing for the majority, threw in the word "dignity." That gave homosexual relationships the appearance of inalienable sanctity, much like life and liberty, without precisely identifying homosexual sex as the interest that the Court was acting to protect.

Kerr's interlocutor, Michael Dorf (a former Kennedy clerk, incidentally), also criticizes the Court's profligacy with the word "dignity." He finds puzzling the Court's concern, stated in last week's death penalty decision, for the dignity of the lethal injection procedure. Fair enough. But then Dorf wanders off into the ridiculous. He asserts that the lethal injection case "bears an uncomfortable resemblance" to last term's Gonzales v. Carhart decision, in which the Court upheld Congress' ban on partial-birth abortion. The legitimate state interest in that case was respect for the dignity of human life. Dorf continues, "The Court in Gonzales v. Carhart validated the federal government's aesthetic interest in dignity, at the potential expense of women's health... ."

This short assertion, not even Dorf's entire sentence, contains not one but two fallacies. First, promoting respect for the inherent value of human life is not merely an aesthetic interest. Aesthetics are important interests, which the state may rightly promote. But human life is valuable in and of itself. This is what moral and legal philosophers mean when they say that human life has intrinsic value. It is an end, a purpose, an interest, all of its own and even when it serves no additional purpose.

Second (and here Dorf is guilty of outright prevarication), nothing anywhere in the public record demonstrates to the least degree that the ban on partial-birth abortions jeopardizes any cognizable interests of women, or even has the potential to do so. Congress made express findings on this point, and the evidence overwhelmingly supports those findings.

Furthermore, Justice Kennedy (again), writing for the majority in Gonzales v. Carhart, expressly invited abortion proponents to bring specific challenges to the ban based upon particular cases. If the partial-birth abortion ban impedes a woman's access to needed health care, threatens her life or health in any way, or otherwise infringes upon any of her constitutionally-protected rights, nothing in the Gonzales v. Carhart decision prevents her abortionist doctor (who bears the penalties for performing the procedure) from bringing a claim challenging the ban as applied to her. As Ed Whelan recently pointed out, one year after the Gonzales v. Carhart decision, not one single such claim has appeared anywhere in this immense nation.

In other words, abortion proponents lied through their teeth. And Dorf continues to do so, shamelessly.

All of this suggests that the word "dignity" should not be used for all-purpose utility work in the Court's lexicon. Instead, the word has particular usefulness in service to the dignity of human life. Kerr and Dorf rightly chide the Court for using the word too freely. But we ought not throw the baby out with the bath water. The inherent dignity of human life is a very important state interest. And in Gonzales v. Carhart, at least, Justice Kennedy rightly called our attention to a just cause.