Vol. 2 No. 7 (July, 1992) pp. 100-101
THE CONSTITUTION OF RIGHTS: HUMAN DIGNITY AND AMERICAN VALUES by
Michael J. Meyer and William A. Parent (Editors). Ithaca, N.Y:
Cornell University Press, 1992. 249 pp. Cloth $32.50. paper
$12.95.
Reviewed by William D. Pederson, Department of Political Scienc-
es, Louisiana State University in Shreveport.
In a system of shared powers, justices and chief executives
sometimes lose perspective on the roles they play in a democratic
society. These overlapping constitutional roles are further
complicated by the personalities of the players. For example, in
1989 during his mid-life crisis, Louisiana Governor Buddy Roemer
bungled his role as a politician and his judicial role as the
state's chief executive. After acting too much like a
"judicial tyrant" in both capacities, the
Harvard-educated governor abrupt- ly turned to a Baptist divinity
school guru who persuaded the governor to save himself through
pop psychology. Suddenly Roemer began quoting America's number
one personal growth psychologist, Robert Fulghum, and Gary
Smalley, who preaches a biblical gospel "to honor others as
if they were valuable." To remind himself of his new
conversion to treating others with dignity -- especially politi-
cal opponents -- the governor hung a large frame placard with the
word "honor" in his capitol office.
Though Roemer's legislative initiatives were justified in
general, his arrogant methods in dealing with the legislature and
the public resulted in his defeat. He lost in the gubernatorial
primary after serving a single term (1988-1992), despite the fact
that his tight-fisted clemency behavior toward criminals was
immensely popular with the public. Apparently, the governor found
it expedient not to "honor" criminals who had served
sentences, since he granted the second lowest number of pardons,
commuta- tions and reprieves of Louisiana governors since World
War II. The governor had problems with a policy of universal
dignity.
Some readers may find THE CONSTITUTION OF RIGHTS as an allegory,
and likely judicial outcome to the Roemer political escapade, if
Supreme Court justices adopted the jurisprudence suggested in
this book. The editors have gathered a dozen essays exploring the
notion of "human dignity" as a basis for jurispru-
dence. The authors are noted moral, political and legal theo-
rists. Most of the essays grow out of the contributors' previous
well- known works. The volume is formally dedicated to former
Supreme Court Justice William J. Brennan, Jr. In an informal
sense, the volume is a tribute to Ronald Dworkin's approach to
human rights.
Somewhat surprisingly neither Brennan nor Dworkin is the topic of
an in-depth essay in the book, though they are mentioned through-
out. Nine of the 12 essays provide an overview of the human
dignity approach, while three either critique or refute this
approach.
Reflecting the backgrounds of the editors as philosophers at
Santa Clara University, the bulk of the essays are written by
fellow moral and legal scholars. If Robert Fulghum and Gary
Smalley were Roemer's psychology-preacher team, the jurispruden-
tial equivalent in the essays are Immanuel Kant and Ronald
Dworkin with William Brennan serving as the pioneering justice or
philosopher- king. Because the U.S. Constitution does not mention
the word human dignity, the book opens with an abstract
philosophical essay entitled, "Human Dignity as the Basis of
Rights" by Alan Gewirth who uses an analytical approach to
argue that human rights grow out of the concept of human dignity.
This chapter is followed by A.I. Melden's, "Dignity, Worth
and Rights," that supports Gewirth's view in a more concrete
essay.
The subsequent chapters tend to be case studies in relating
individual rights in the Bill of Rights to the notion of dignity.
William A. Parent's "Constitutional Values and Human
Dignity") is a readable overview of the Constitution with
special reference to the Fifth and Fourteenth amendments. David
A. J. Richards in "Constitutional Liberty, Dignity, and
Reasonable Justification" broadens John Locke's argument for
a principle of religious toleration into constituting the
American people as a "community of principle." Bernard
R. Boxill "Dignity, Slavery, and the
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Thirteenth Amendment" recalls Roemer's arrogance toward
legisla- tors through the author's reminder that Kant, "the
father of the categorical imperative," regarded Negroes as
inferiors. Martha Minnow in "Equality and the Bill of
Rights" reminds readers that equality is not mentioned in
the Bill of Rights and there is a built in tension between
liberty and equality. Unfortunately, she does not distinguish
between moral and material equality.
Hugo Adam Bedau in "The Eighth Amendment, Human Dignity, and
the Death Penalty" presents a very thoughtful moral argument
against capital punishment, even though Kant used the notion of
human dignity to defend the death penalty. R. Kent Greenawalt in
"The Right to Silence and Human Dignity" views human
dignity not as "THE KEY to judgment about the right to
silence," but as "a very helpful guide." Louis
Henkin in "Human Dignity and Constitution- al Rights"
presents a readable and brief historical overview of America's
experience in promoting or retreating from an universal standard
of human dignity.
Three of the essays are presented primarily as a critique of the
human dignity approach. Raoul Berger in "Justice Brennan,
`Human Dignity,' and Constitutional Interpretation" offers
the most negative assessment of the approach. It serves as a
standard argument against judicial activism. Frederick Schauer in
"Speak- ing of Dignity" uses less overkill than Berger
by posing a series of legitimate questions in regard to how a
dignity approach might undermine free speech. And finally, Owen
M. Fiss in "The Other Goldberg" critiques William
Brennan's presentation before the New York Bar Association in
September, 1987, in which Brennan celebrat- ed
"passion" in jurisprudence and even criticized
Cardozo's timidity in using it.
Critics of the human dignity approach among judges are likely to
regard it as a recipe for disaster, perhaps even worse than
Roemer's use of pop psychology. Yet this collection of essays
might serve as a particularly useful supplementary text in
jurisprudence courses. It's unfortunate that the text does not
include a full biographical sketch of William Brennan and his
work on the Supreme Court. He is a more complicated jurist than
the text suggests.
Except for one footnote to B. F. Skinner who attacked the idea
that persons have "dignity," the text avoids
psychology. This is surprising since considerable psychological
research supports the human dignity approach, particularly in
showing how esteem and equality are related. No mention is made
of the work of Lawrence Kohlberg, James C. Davies' application of
Abraham Maslow's work to politics, or Angus Campbell, who late in
his behavioral career came to understand that economic models of
human behavior are lacking.
There may be additional grounds to support this approach based on
a study of the lives of our greatest leaders -- including Supreme
Court justices. Although often overlooked, the clemency behavior
of our greatest presidents suggests an underlying "human
rights" philosophy that distinguishes them as a group from
the others who chose never to act against public opinion. For
example, though amnesty is seldom a popular issue, our Mount
Rushmore presidents, as well as the other most active and
flexible presi- dents, granted more amnesties than all the other
presidents combined. These chief executives, unlike Governor
Roemer, kept their political and judicial roles in balance--for
the most part, perhaps because they were among our most mature
leaders.
On the other hand, the judicial power of a chief executive is
seldom the primary issue of a presidential term. And justices
have a much more restrained role to play in our system of shared
powers. This book with its notion of human dignity may serve as a
good point of departure in discussions about ideal and practical
conceptions of justice.
Copyright 1992