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On America’s Inexplicit Dignity
Joshua Rotenberg21

 While the United States explicitly protects many rights, it holds a few as 
unenumerated rights. This paper seeks to explain the lack of a constitutional
right to dignity in America, and argue for such a right. The U.S. common 
law system allows rights to be developed only after a case of first 
impression. Nonetheless, some rights-violations are so detrimental to 
democratic function that a case of first impression must not be required and
preemptive protections must be put in place. The right to dignity is such a 
right.

Since 1787, the American Constitution has been defined by 
malleability. The ability to adopt rights necessitated by the circumstances of 
evolving times secures the Constitution as a “living” document. Citizens of 
the United States enjoy the benefits of malleability through their protected 
rights, which, in an ideal democracy, help us address pertinent issues faced 
every day in a context of security. As the common law system teaches, the 
development of such rights may be traced back through prior cases. 
However, one of the detriments to a precedent-based legal system highlights
an issue with legal development. More often than not, a right becomes 
protected only after injustice is committed. The prevalence of the Miranda 
rights, for example, came only after Ernesto Miranda was unjustly arrested. 
The United States corrects our legal course only after we wander astray. 
There may be times, however, when a preemptive violation of a to-be-
determined right would cause such harm that prophylactic legal measures 
are a necessity.  An example is the protection of the “right to dignity.” This 
right protects a human’s ability to be treated as such, and reinforces the 
basic tenets of equality and freedom of all citizens. The ramifications of a 
violation of this right fundamentally undermines the foundations of 
democracy. Thus, the ability to violate such a right must be stifled before 
any specific “triggering injustice” can occur. 

What courts and lawmakers call the “right to dignity” is prevalent in 
many nations across the globe, primarily to prevent injustice in light of past 
experiences of political instability or tyranny.  Accordingly, the nation with 
the strongest protection of the right to dignity remains Germany, who, 

21 Brandeis University Undergraduate, Class of 2023.

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

following the atrocities of World War Two, protects this right above all 
others. The German Right to Dignity reads “Human dignity is inviolable. To
respect and protect it is the duty of all state authority.”22 Dignity is 
established as a fundamental German right even before the right to life itself.
This logic holds true considering the abomination of the Third Reich, which 
treated dignity as a preferential right bestowed only on those with the 
features or religion the government preferred. It could be argued that, had 
the right to dignity been instilled in each German citizen prior to the rise of 
the Nazi Party, genocidal policies could not have prevailed. The right to 
dignity ensures that each human is treated as such, and thus the 
dehumanization genocide demands would not be possible. Dignity is upheld 
as a right across the European Union, India, Iran, South Africa, and Israel. 
There is no question that while America has yet to ratify this right, powers 
across the globe have successfully done so, holding the right to dignity up 
along with the same fundamental rights American values cherish.

The history of dignity in America, however, is complicated by the 
preference for precedents that characterizes our common law system. 
American lawmakers never saw it fit to establish the right to dignity as a 
concrete, protected right in the Constitution. Alternatively, our courts only 
occasionally deploy the concept to supplement other rights, mentioning 
dignity in various cases as justification for a certain ruling. Justice Harlan, 
for instance, referenced dignity in his ruling on Cohen v. California. He 
hoped that the right to freedom of expression would “ultimately produce a 
more capable citizenry and more perfect polity and in the belief that no other
approach would comport with the premise of individual dignity and choice 
upon which our political system rests.”23 His teachings are representative of 
dignity in America, which is thought to be a notion that simply justified 
other, specifically-protected rights. While Germany may hold dignity as its 
first, most valued right, America presumes that its own most cherished 
rights, such as free speech, reflect a concern for dignity, even if that concern
remains unspoken. 

In Lawrence v. Texas, Justice Kennedy associates dignity with the 
Fourteenth Amendment. He highlights a quote from a prior case, Planned 
Parenthood of Southeastern PA v. Casey. “These matters, involving the 
most intimate and personal choices a person may make in a lifetime, choices

22 The provisions of Article 1(1) of the German Basic Law.
23 Cohen v. California, 403.

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

central to personal dignity and autonomy, are central to the liberty protected 
by the Fourteenth Amendment”24 Here, dignity yet again is used as nothing 
but a supplemental concept, extrapolated through explaining or justifying 
other rights. Thus, legal scholars looking to American law presume that a 
right to dignity is protected by the very existence of other legal protections. 
In his defense of a bill of rights, New York University law professor and 
legal philosopher, Jeremy Waldron, contends that the very presence of 
protected rights acknowledges dignity.25 He argues that when a government 
gives rights to a citizen, they automatically assume that the citizen has both 
autonomy and dignity; rights must be enforced, in this view, to respect and 
protect human dignity. In sum, American thinking on the right to dignity is 
simple: it is established through the application of our other rights, and this 
being so, there is little need to place it explicitly in the Constitution. 

America has relied on this assumption since its founding, assuming 
that dignity will be protected through precedential application in past cases 
involving other, existing rights. Of course, amending the Constitution, while
cherished as a common American practice, is arduous at best. If 
jurisprudence relies on implied rights, ratifying the right to dignity may not 
be worth the trouble. Nonetheless, while American security in the protection
of dignity is rooted in past success, prevention of future injustice requires a 
more solidly-grounded right to dignity ratified in the Constitution.

The primary reason for an explicit right to dignity may be found in 
the very principles of democracy. Democratic theorists such as Alexis de 
Tocqueville have established a set of traits which define the democratic 
citizen.26 Democratic principles include tolerance, cooperation, moderation, 
and ease of collective action. Leniency in allowing the disruption of such 
principles in the citizenry could indicate democratic shortcomings. In a 
society without respect for dignity, such qualities would struggle to surface 
amongst the population. Where dignity is not properly acknowledged, 
democratic engagement must suffer.  Perhaps it is no coincidence that 
America, which has no explicit right to dignity, suffers from widespread 
intolerance as political polarization increases. Today, the breakdown of 

24 Planned Parenthood of Southeastern Pa. v. Casey, 851.
25 Waldron, J. (2004). Law and disagreement. Oxford University Press. 
26 Tocqueville, A. de, Goldhammer, A., &amp; Zunz, O. (2012). Democracy in America. 
Library of America Paperback Classics.  

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

respect for core human dignity is interfering with democratic function. An 
equal and fair election, for example, is the hallmark of a democracy. The 
current rash of voter-suppression laws is hard to imagine in a place where all
citizens respect each other’s essential dignity. A society which does not 
consistently reinforce the importance of dignity does not inspire democratic 
trust. 

Especially in view of these recent developments, it is no longer 
enough to allow the right to dignity to reside on the margins of our law. 
Protection against search and seizure and freedom of speech, for instance, 
are instilled in the average American through constant repetition. Students 
memorize the amendments in grade school. Americans are raised with a 
theoretical knowledge that they can speak their minds openly and should 
expect to be treated just as their peers would be under the law. Students do 
not, however, recognize the existence of dignity as a protected right due to 
its obscurity. The average American is not aware of Justice Kennedy’s 
application of the Casey ruling to use dignity to determine Texas v. Johnson.
This average American may very well be aware of dignity as an important 
force in every-day life, but they are not repeatedly told that the government 
has an overriding interest in protecting their dignity. The logic which 
follows is that such an absence of reinforced dignity protection may cause a 
decline in trust, which, while not spelling the demise of democracy, makes it
more likely that people will fall prey to polarization, and support more voter 
suppression laws.

Beyond hindering democratic function, where dignity is not 
enshrined as a freestanding right, there is a greater potential for the worst 
atrocities known to man. Just as democracy cannot function without dignity,
the atrocities of genocide, ethnic cleansing, and ethnic war can be prevented 
by a zealously protected dignity right. The Holocaust, the Rwandan 
Genocide, and the ethnic violence in Yugoslavia all involved the 
demonization of the “other.” A government forced by its constitution to 
protect dignity at all costs could not allow this demonization to take place. 
The United Nations defined genocide in eight stages: classification, 
symbolization, dehumanization, organization, polarization, preparation, 
extermination, and denial27. In a government with a cherished and protected 

27 Wilson, T. (2020, August 29). Eight stages of genocide: From classification to denial. 
The Borgen Project. Retrieved November 30, 2021, from https://borgenproject.org/eight-
stages-of-genocide/. 

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Brandeis University Law Journal      Fall 2021, Volume 9, Issue 1

right to dignity, only the first two steps could occur. A breakdown of one 
group’s conception of dignity as equally applied to their fellow citizens is a 
requisite to genocide. Dehumanization simply cannot prevail should a 
government have the means, will, and capacity to enforce a right to dignity. 
A functioning democracy with a proper system of checks and balances could
prevent such a horrendous outcome if dignity is instilled in each government
official and citizen.

Critics may argue the American common law system has worked for 
centuries, and so there is no reason to break the tradition and preemptively 
establish a right without a triggering case of first impression. However, the 
potential consequences of not explicitly ratifying the right to dignity before 
a case of first impression make it essential. America has relied on precedent 
to shape its legal applications and definitions of dignity. This process, while 
perfectly acceptable under common law, is far from preventative. The 
abominations which may only arise without dignity are far too destructive to
be recognized only with the benefit of hindsight. The actions of the Nazi 
regime will leave a stain on modern day Germany permanently. Germany’s 
current emphasis on dignity stems from some of the most violent actions in 
human history. The German “case of first impression” was the greatest 
horror known to man. There is no reason why the rest of the world should 
not learn from such atrocities and make their prevention the first priority of 
a state. In fact, as determined above, many states have taken this lesson to 
heart, working dignity into their constitutions as a preventative measure. 
Some may argue that if America equally takes such action, such atrocities 
could never be committed under American rule. However, recent events 
have taught us all too well the fallacy of believing that we are immune to the
influence of dignity-denying demagogues. 

A self-serving leader, turbulent times, and a population without 
respect for the democratic process resulted in the storming of the Capitol on 
January 6th, 2021. The Capitol riots are by no means akin to genocide. 
Nonetheless, the riot carries a much more powerful message: America may 
not rely on democracy to sustain itself. The functions which are essential to 
democracy are fragile, and demand reinforcement. A ratified right to 
dignity, held to the same standard as free speech, could very well be that 
reinforcement. The current system is simply not sufficiently preventative. 
Inexplicit rights may be used by judges to reach a fair ruling, but they do not
instill that right in the values of the citizens. Moreover, they create loopholes

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which may be exploited to allow for grave injustices. The magnitude of 
these injustices may be so large that it simply cannot be allowed to occur 
even once, requiring a preemptive establishment of the right to dignity to 
forestall such a horrendous outcome.

The ability to extract a right from judicial precedent is common in 
American law. Fundamental rights not stated in The Constitution have been 
adopted before in light of modern issues. Justice Douglas’ opinion on 
Griswold v. Connecticut noted that a statute “forbidding the use of 
contraceptives violates the right of material privacy which is within the 
penumbra of specific guarantees of the Bill of Rights”28 The prior legal 
consensus on the right to privacy perfectly mimics the current applications 
of dignity in American jurisprudence. Douglas highlights that the Bill of 
Rights creates “zones” of privacy via previously established amendments. 
The Griswold ruling brought the right to privacy out of the haze of 
unenumerated rights and into a more solidified application. Today, citizens 
expect that the government will not meddle with one’s possessions or 
personal life. Moreover, the government knows to treat violations of the 
right to privacy with strict scrutiny, thus making an initial violation 
extraordinarily difficult. 

The right to dignity shares a similar status as the old right to privacy.
It is unenumerated, and restricted to its use as a judicial tool and a 
background concept, but nothing more. In a vein with Justice Douglas’s 
ruling, dignity may be brought out from the penumbra of other rights. The 
difference between the two circumstances, however, are the implications of 
the potential violation. The right to privacy was not established until after 
Griswold’s arrest. In the grand scheme of our nation’s functioning as a 
democracy, an unjust arrest is nothing uncommon. Unjust arrest is, of 
course, a dire issue in need of resolution, but the violation of Griswold’s 
right to privacy did not negate the values of democracy. A violation of 
human dignity, however, carries much more severe implications. For this 
reason, it is imperative that such a right be established not through the 
common law process but through a Constitutional amendment. Granted, a 
dignity-based case of first impression may not be as severe as the above 
paragraphs purport. It could very well be a simple nuisance in the life of one
plaintiff. However, the very possibility that a case could carry such severe 
injustice mandates immediate action which bypasses a case of first 

28 Griswold v. Connecticut, 381.

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impression. Our present political crisis also confirms that the time for 
making the right to dignity a firm part of our legal landscape has arrived.  
Thus, the proposed action is not only desirable, but essential to the 
preservation of our democratic tendencies now and in the future.

The implications of incorporating the proposed right to dignity has 
limited negative ramifications. One may argue that incorporation of this new
personal freedom would severely change government function. What 
constitutes “dignity” may be subjective and difficult to define in a given 
case. While judges may apply dignity in new, unexpected methods, such 
rulings need not be cause for concern. Every fundamental right suffers such 
constitutional growing pains. Cases still arise today which change the 
definition of “speech” as protected by the First Amendment. So long as the 
right to dignity is protected, the specificities of the protection will be shaped 
by a newly developing line of precedent. Incorporating a new fundamental 
right will undoubtedly tie the hands of the government but this is the nature 
of strict scrutiny as a legal construction. However, since the right to dignity 
has been previously enforced as a passive, unenumerated right, the 
expectations of the legislature would not alter greatly. As previously 
established, violations to human dignity often entail violations of other 
rights. This is the very reason dignity was used by prior justices as a judicial 
tool. It may be easily predicted that ratifying a right to dignity will create 
new cases which will guide legal applications of the amendment away from 
undue subjectivity. Moreover, the actual practice of this law will not 
drastically change the essential ability of legislatures to function, no more 
than other enumerated rights have done. The largest difference the right to 
dignity will make will be in the reassurance of the citizen in their newly 
protected dignity no matter how the future may challenge that right.

The American legal system roots itself in the past. We make 
mistakes, correct them, and carry that lesson with us through continued use 
of precedent. It is a stable system; it functions properly and will likely 
continue to do so for years to come. That said, there are certain rights which,
even if not fully ratified, are so essential to the function of government and 
life itself, that to not “go through the trouble” of ratification could spell 
disaster in the future. America has relied on the common law system to 
support the unenumerated right to dignity while the rest of the world has 
learned not just from their own legal history, but from that of nations who 
have failed to protect their population’s dignity. As a global hegemon, it is 

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simply irresponsible to assume that our system will protect us while others 
have suffered the consequences of that assumption. Despite it’s status, the 
United States is not immune to democratic fault. To prevent severe 
ramifications of the potential failings of the future, we must take action 
today. A Right to Dignity must be added to the Constitution, not to 
undermine the benefits of our common law system, but to take preemptive 
action to preserve that very system.

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Works Cited

Tocqueville, A. de, Goldhammer, A., & Zunz, O. (2012). Democracy in 
America. Library of America Paperback Classics. 

Waldron, J. (2004). Law and disagreement. Oxford University Press. 

Wilson, T. (2020, August 29). Eight stages of genocide: From classification 
to denial. The Borgen Project. Retrieved November 30, 2021, from 
https://borgenproject.org/eight-stages-of-genocide/. 

Cases Cited

Cohen v. California, 402 U.S. 15 (1971)
Griswold v. Connecticut, 381 U.S. 479 (1965)
Lawrence v. Texas, 539 U.S. 558 (2003)
Planned Parenthood of Southeastern PA v. Casey, 505 U.S. 833 (1992)
Texas v. Johnson, 491 U.S. 397 (1989)

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