Adding Insult to Injury: Questioning the Role of Dignity in Conceptions of Sovereignty

Abstract

The term sovereignty in the United States has more than one reference. Sometimes, sovereignty refers to the literal and the legal power of the United States in its relationship to other nations and to the world community. We call this "external sovereignty" and contrast it with a second use, which we describe as "internal sovereignty" to capture its focus on the relationships among state, federal, and tribal governments within the borders of the United States. The current majority of the United States Supreme Court has revived the language of internal sovereignty - proffering it as the basis for invalidating or limiting the scope of federal legislation as applied to states. The Court's internal sovereignty argument is supported in part by characterizing states as bearers of dignitary interests. Neither conceptions of sovereignty nor of dignity have been static over the centuries. While monarchs once held all sovereignty and only nobility had dignity, democracies today celebrate the sovereignty of their citizens and the dignity of all persons. Today, equality of persons is central to concepts of popular sovereignty and personal dignity, and human rights law embodies these premises. Further, during the last several decades, collectives of marginalized persons have also asserted rights to recognition and to self-determination of their political authority. The rise of both individual and collective claims of human dignity has constrained sovereignty, for nations can no longer treat human beings with utter disregard by asserting sovereignty as a defense. Given this nexus between dignity and personhood, the United States Supreme Court's insistence on attributing dignity to states is seen by some as either obnoxious or disingenuous. But the turn to dignity in sovereignty discussions ought neither to be dismissed nor embraced without puzzling about the work that it, circa 2003, is doing. In this article, we explore the role that the term "dignity" plays in United States constitutional law by learning when, where, and why the word has been used. That excavation in turn yields several normative insights. First, although concepts of dignity can be identified in constitutional jurisprudence throughout the nation's history, the word dignity was not used in reference to personal constitutional rights by the Supreme Court until the 1940s, in the wake of World War II. During that period, legal and political commentary around the world turned to the term dignity to identify rights of personhood. Thus, dignity talk in the law of the United States is an example of the influence of the norms of other nations, transnational experiences, and international legal treaties and documents on the law of the United States. Second, we argue that the Supreme Court's reinvigoration of doctrines of internal sovereignty by endowing states with dignity is driven in part by anxiety occasioned by the very permeability of our legal system. Third, both the influences on United States law by international norms and the efforts to ward them off make plain that, given global activity and technology, the law of the United States cannot be secured against external forces. Rather, this country's law is inevitably in conversation (directly or indirectly) with legal developments around the world. Fourth, we believe that as a legal matter, dignity ought not to be reserved exclusively to individuals. Through an analysis of the "caselaw of dignity," we have found many examples of the utility of institutional dignity, aimed at enabling a fledgling organization - be it a court or a nation - to function. For clarity, we speak of the dignity accorded to nonhumans as "role-dignity," by which we mean that dignity is ascribed to an entity to enable it to produce something useful to persons or groups. In contrast, the dignity of people need not be justified in reference to what other goods or effects it produces but rather as something intrinsic in personhood. Fifth, and finally, legal recognition of institutional dignity ought to have a narrower ambit than does recognition of personal dignity. To endorse an entity's claim to role-dignity requires a contextual evaluation of the purposes for which the dignitary claim is made and an assessment of the power of the entity claiming this attribute. In our view, because of revised understandings of the import of human dignity, law ought not to rely on institutional role-dignity as a justification for immunizing states from accounting for their behavior. Indeed, being called to account ought not itself be seen as an affront to the role-dignity of an institution but ought, instead, to be understood as one mechanism of acknowledging that entity's power. However, as we detail, this approach does not preclude the use of role-dignity for states to generate other mechanisms to recognize their legitimate authority.