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February 7, 2017

"The Death Penalty & the Dignity Clauses"

The title of this post is the title of this notable new article by Kevin Barry, and here is its abstract:

“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide.  Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.

Now, 40 years after Gregg, the question is being asked once more.  But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes.  The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional.  No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.

Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in United States v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments — which have long shared a commitment to dignity — and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.

This Article suggests that dignity embodies three primary concerns — liberty, equality, and life.  The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law.  Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty.  If dignity means anything, it must mean this.

In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence.  It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.

February 7, 2017 at 10:35 AM | Permalink


"This Article suggests that dignity embodies three primary concerns — liberty, equality, and life."

That includes unborn children, right?

Posted by: justme | Feb 7, 2017 11:22:03 AM

Per the first comment, no justice of the Supreme Court determined that 'person' as understood by the U.S. Constitution applies to embryos and fetuses, so actions of the state in this respect would not be the same as in the capital punishment context.

Nonetheless, respect for life of embryo and fetuses have been recognized by our law, including acceptance by Supreme Court doctrine, in various respects. The question would be how to do that, including balancing the rights of born persons/citizens and the various competing views of "life" etc. there that has divided religious and moral opinions. This would underline the importance of making it an individual decision, including on First Amendment grounds.

The capital punishment by the state raises at least somewhat different questions, but there is some overlap. Anyway, one or more people here have shown a certain disdain for the "dignity" approach, but as I have noted in the past, "dignity" is something our law and society has recognized as a value and ground to apply legal rules in a range of cases. Also, some of the support of the death penalty has a sort of dignity feel to it, such as concern for the dignity of victims. So, the matter does go both ways.

Posted by: Joe | Feb 7, 2017 11:35:35 AM

"Dignity" is an assault on our democratic and republican principles. It is word found nowhere in the Constitution itself, it is not found nor embodied in any American tradition of jurisprudence prior to the present day, it is a wholly foreign import from Europe.

Whatever the merits of the underlying results, justifying them or buttressing them with notions of dignity should be resisted by all rational people.

Posted by: Daniel | Feb 7, 2017 12:22:50 PM

"It is word found nowhere in the Constitution itself, it is not found nor embodied in any American tradition of jurisprudence prior to the present day, it is a wholly foreign import from Europe."

"Federalism" is a word not found in the Constitution itself either. The brief text has to be interpreted by usage of concepts not explicitly cited.

It is embodied in our tradition. I cited in the past multiple examples in domestic, military and international law. But one example would be those in the anti-slavery tradition in the 19th Century that explained how they viewed appropriate legal and constitutional action. Noting that our values overall are based on European principles, if you want to phrase it that way (Greek, Roman, French, English, Scottish etc.), "wholly" is fictional. If you don't like it on principle, that's fine.

Posted by: Joe | Feb 7, 2017 1:04:31 PM

Lieber Code (military law for U.S. troops formulated during Civil War): "Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity."

Union Pacific Railway Co. v. Botsford (19th Century case sometimes cited as the start of the "right to privacy"): "To compel anyone, and especially a woman, to lay bare the body or to submit it to the touch of a stranger without lawful authority is an indignity ... no order of process commanding such an exposure or submission was ever known to the common law in the administration of justice between individuals"

Federalist No. 1 (essay to promote ratification of Constitution): "I am convinced that this is the safest course for your liberty, your dignity, and your happiness." ["dignity" is cited as an important value for persons, states, members of government etc. repeatedly in these papers, but it is "wholly foreign" and "should be resisted"]

One can on and on here. The problem partially is "dignity" is somehow defined or applied in ways that bother people. I had this problem before, where words have different meanings. But, the basic idea of "dignity" is over and over again found in U.S. law, including the Constitution.

Strip searches, e.g., violate the "dignity" of people, that is a major reason it has a Fourth Amendment aspect. Defamation law etc. had concerns for "dignity" of private parties. It isn't just a special guarantee given for nobility; the point of the U.S. was each person has dignity. Again, this was a basic idea of anti-slavery thought, including by Booker T. Washington. In "Up From Slavery," "the students themselves would be taught to see not only utility in labour, but beauty and dignity" was cited. Dignity was repeatedly cited by labor activists over our history too.

The term is also applied for 10th Amendment purposes, so "dignity of states" pops up in various cases. But, "dignity" and the 8th Amendment didn't suddenly arise in Trop v. Dulles, the Warren opinion often cited. James Wilson (1791):

"For, in nations, as well as individuals, cruelty is always attended by cowardice. It is the parent of slavery. In every government, we find the genius of freedom depressed in proportion to the sanguinary spirit of the laws. It is hostile to the prosperity of nations, as well as to the dignity and virtue of men."


Posted by: Joe | Feb 7, 2017 1:29:29 PM


None of those examples are responsive to my post. I never claimed that Kennedy invented the word dignity. The word has been around long before Kennedy got his pathetic little hands on it. My point was that it was never part of the legal /tradition/. It was never used a conceptual lens that judges used to arrive at a judicial decision. The fact that a case or two utilizes that word proves nothing. This is especially true when one uses the word dignity in association with privacy. There have been numerous scholarly articles that show the dignity in relationship to a right to privacy has been thoroughly rejected by the courts for more than 100 years.

Posted by: Daniel | Feb 7, 2017 2:04:23 PM

If dignity is inherent in the Ninth Amendment, as privacy is, then political correctness is a constitutional right owed to anyone taking the slightest offense. It is also the end of constructive correction by teachers and by parents. It is the end of traffic stops. Shame is a physiological effect that can be as painful as corporal punishment.

Posted by: David Behar | Feb 7, 2017 2:31:10 PM

Everyone who has called me crazy on this blog has violated my dignity. From the Sitemeter readings, I know your IP address. I will begin reporting each of your dignitary insults to the Office of Civil Rights at the Justice Department for a full investigation.

Posted by: David Behar | Feb 7, 2017 2:38:53 PM

Given the extraordinary additional protections involved in death penalty cases, it strains credibility to argue that life receives the least protection under the law. There is also a difference between a Fourteenth Amendment due process/equal protection analysis (the source for a lot of the dignity jurisprudence) and a cruel and unusual analysis under the Eighth Amendment.

Posted by: tmm | Feb 7, 2017 2:56:24 PM

"Dignity" is simply doublespeak for mischievous smuggling of policy preferences into constitutional interpretation. It is not self-defining and despite the author's mendacious attempt to clarify it, all we are left with is an assurance that dignity would apply only to criminal offenders convicted of the worse crimes imaginable while the rest of us are left out in the cold.

Posted by: justme | Feb 7, 2017 6:25:03 PM

To those who are worried that they're crazy: there is a difference between being considered crazy by private citizens, and being considered crazy by the government.

Posted by: Mark M. | Feb 8, 2017 8:08:46 AM

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