The Secret History of Constitutional Dignity

Abstract

“Dignity” is suddenly everywhere in law and philosophy, even though it has long been in decline in general usage. In a popular view, this prominence is essentially due to World War II’s aftermath, when in the shadow of genocide the light of human dignity shone forth. More specifically, it is dignitarian constitutionalism that re-founded public law for our time. The concept of dignitarian constitutionalism channeled Immanuel Kant’s pioneering Enlightenment insistence on inherent human worth into the UN Charter (1945), the Universal Declaration of Human Rights (1948), and the German Basic Law (1949), all three of which begin with the dignity of the individual as basic principle. In this conventional wisdom, Germans after the Holocaust went furthest to rethink constitutionalism, and their example of how to defend human dignity was later taken up in South Africa and beyond. Though it took some time, dignity has since proceeded in the last few decades, in tandem with the larger fortunes of international human rights law, to become a crucial watchword, going global in various constitutions and international treaties, and offering judicial guidance for the protection of basic values. Certainly it is true that interest in dignity swarms in legal cases and philosophical discussions today in ways that demand explanation, and the current dispute among judges and commentators about how to interpret dignity provisions is not uninteresting. But is the conventional wisdom about where dignity came from correct in the first place? The notion of dignity was not necessary to constitutionalize rights, either in 1776 in Virginia or in 1789 in France—or again in 1946 in France, when the country not only relit its constitutional torch but drew on the flame of constitutional rights guarded by Central and Eastern Europeans in the 1920s. Conversely, West Germans writing the Basic Law weren’t yet concerned by the Jewish tragedy. And while it is certainly true that Kant occasionally referenced dignity, none of his political disciples have made anything of this fact—and his current philosophical disciples have only started highlighting dignity in the last few years. For that matter, there were no Kantians in Germany of note after World War II (including in the rooms where the Basic Law was prepared and debated), nor really any-where else. And actually, contrary to familiar beliefs, it was not West Ger-many that first constitutionalized dignity as a leading principle anyway.