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Dignity Interests in Constitutional Law:
In his latest Findlaw column, Michael Dorf criticizes the plurality opinion in Baze v. Rees for relying in part on the interest in "dignity" of an execution:
Were it not for the paralyzing effect of pancuronium bromide, then the body of an unconscious prisoner killed by potassium chloride-induced cardiac arrest might convulse in a manner that would be disturbing to witnesses. As Chief Justice Roberts wrote in his plurality opinion, the state "has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness or distress."

What could the Chief Justice mean by the "dignity of the procedure"? He might mean the dignity of the condemned prisoner. But, as Justice Stevens explains in his opinion, "whatever minimal interest there may be in ensuring that a condemned inmate dies a dignified death, and that witnesses to the execution are not made uncomfortable by an incorrect belief (which could easily be corrected) that the inmate is in pain, is vastly outweighed by the risk that the inmate is actually experiencing excruciating pain that no one can detect."

It is hard to imagine that a prisoner would choose to accept the latter risk in order to further the dignitary interest identified by the Chief Justice. . . . [T]he inclusion of the pancuronium bromide in the three-drug protocol is not for the benefit of the prisoner, but for the aesthetic sensibilities of the public.
Mike draws an analogy to Gonzales v. Carhart:
In this regard, the decision in Baze bears an uncomfortable resemblance to the Court's ruling last year in Gonzales v. Carhart. In that case, the Court upheld the federal Partial Birth Abortion Ban Act--which forbids a particular method of abortion in which a fetus is partially delivered into the birth canal before being killed. The basis for the ban was not that this abortion method was especially unsafe for the woman; on the contrary, there was evidence that in certain circumstances it is the safest abortion method.
  I think you could also draw analogies to lots other opinions that rely heavily on dignity interests in constitutional interpretation. Important examples would include Lawrence v. Texas, 539 U.S. 558 (2003) ("It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.); Roper v. Simmons, 543 U.S. 551 (2005)("By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons."); and Alden v. Maine, 527 U.S. 706 (1999) ("Federalism requires that Congress accord States the respect and dignity due them as residuary sovereigns and joint participants in the Nation's governance. Immunity from suit in federal courts is not enough to preserve that dignity[.]").

  The common theme among these opinions? Here's a hint: A person who MiKe knows well.
theobromophile (www):
If Chief Justice Roberts is following in the footsteps of AMK, it's time to give up on American jurisprudence and call it a day.

The common theme among these opinions? Here's a hint: A person who MiKe knows well.

Am I the only one waiting for Simon Dodd to get a hold of this one?
4.22.2008 3:12am
gator:
As a 1L, I'm just pleased with myself for having caught on. I'll add one more for good measure:

“In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own." United States v. Drayton, 536 U.S. 194 (2002).

Maybe he just likes the word "dignity." It's a good word.
4.22.2008 4:21am
tvk:
Orin, I don't understand the comparison with other AMK opinions. Sure, they invoke the word "dignity"; but Dorf's critique is that the word dignity here is being invoked for the interest in mere aethetics. As I understand Dorf's critique, the "dignity" of execution is invoked to permit covering-up excruciating pain as much as the "dignity" of the presidential office would be invoked to permit covering-up presidential misconduct. In both cases, the argument is that if the public were permitted to see what really goes on in making the sausage, they would be so disgusted that the government would be subject to criticism; and that this somehow justifies government measures to preempt such criticism.

Dorf's analogy to Carhart here is a little strained, but nonetheless he is saying that the court is permitting to government to limit partial birth abortion because it is gory. It is inapposite in the sense that the motivation in Carhart tuns opposite to the motivation in Baze--the legislature presumably suppresses the gory details in abortion for its own sake but suppresses the gory details in executions in order to continue them. But if the analogy to Carhart is strained, your analogies to other AMK cases are ever further afield.
4.22.2008 4:23am
ReaderY:
The ACLU is currently conducting litigation intended to prohibit the military from using the safest possible interrogation methods -- safest for the interrogator -- for essentially the same reasons as were cited regarding avoiding the safest possible abortion methods. The ACLU cited "American values", which has historically been nothing more than a euphemism for religiously based morality. A campaign to promote unsafe interrogation methods for reasons of nothing other than morality doesn't seem to have anything to do with protecting Americans or their civil liberties. If the safety and civil liberties of Americans are truly all that our government should legitimately be concerned with, if religiously-based morality is truly an inappropriate basis for government action, than one is not the slightest bit more reasonable a basis for governmental intervention than the other. Security care professionals protect American health every bit as much as health care professionals.

Shame on the ACLU for jeapardizing American's safety for nothing more than the power thrill of using government to impose its "values" on others. And a far bigger shame for the hypocracy of pretending to oppose religious morality, while doing exactly the thing it purports to disapprove of, including putting Americans' safety at risk, whenever its own membership's personal religious beliefs are involved.

As Justice Kennedy pointed out, government can limit abortion methods for exactly the same reason it can limit interrogation methods. Both fetuses and enemy combatants can terminated on demand under our nations laws. But the right to kill other human beings doesn't necessarily encompass the right to torture them. This is so even when we believe torture would be the safer course in terms of protecting those whom our government is fully obligated to protect. The two cases are precisely the same.

It can hardly be argued that an enemy combatant is a person "in the fullest sense of the word". A creature that can lawfully be shot on sight simply doesn't square with the panaply of legal protections the word "person" connotes. But as our history with enemy combatants shows, the fact that the term "person" lacks application to a class in no way whatsoever implies that morality has no meaning for that class or that the state has no interest.

The principle the ACLU is arguing for in the enemy combatant torture cases -- that there are forms of morality that apply even to those we would kill that affect how we kill them and what we do before we kill them -- is exactly the Cartwright principle, exactly the principle the Court found applicable in the abortion context.

One can't decry the principle out of one side of ones mouth while claiming to support it out of the other. If personhood is all-or-nothing so that either people get full rights or get treated as if they were inert matter, than there is no basis whatsoever for opposing torturing enemy prisoners, they're just lumps of cells so far as we and our laws ought to be concerned. But if we accept a non-binary conception of humanity, that includes an intermediate state between inert matter and full legal personhood where there are some moral responsibilities that apply even where the concept of full rights simply makes no sense, then both examples are equally good. Granting enemy soldiers who are shooting at us complete legal rights makes no more sense, if anything much less sense, than granting fetuses full legal rights. But if accept that enemy soldiers aren't persons "in the full sense of the word", opposing torturing fetuses makes exactly the same sense as opposing torturing enemy prisoners. No more, no less.

The ACLU should end its hyporcracy, one way or the other.
4.22.2008 4:34am
ReaderY:
Roe v. Wade reached the conclusion a fetus was not a person after this exegesis:


The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, § 2, cl. 2, and § 3, cl. 3; in the Apportionment Clause, Art. I, § 2, cl. 3; 53 in the Migration and Importation provision, Art. I, § 9, cl. 1; in the Emolument Clause, Art. I, § 9, cl. 8; in the Electors provisions, Art. II, § 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, § 1, cl. 5; in the Extradition provisions, Art. IV, § 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in §§ 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.


The difficulty here is that if one goes through each and every one of the constituitional passages mentioned, strikes out the word "fetus", and writes in the word "unadmitted extraterritorial alien" certainly "inadmitted extraterritorial alien who is an enemy combatant") in crayon, one gets exactly the same result. Unwanted extraterritorial aliens also can't be representatives or Senators, don't get counted in the Census or included for purposes of apportionment, are no business of the Importation clause (which explicitly concerns itself with the wanted and admitted), etc. (Try it: go through each of the clauses and you'll see that they no more apply to enemy prisoners held outside U.S. territory than they do to fetuses).

Perhaps the language of Roe v. Wade was never meant to be taken very seriously. Perhaps everyone knows the desired result and the particular verbiage accompanying the result just doesn't really matter and shouldn't be applied to anything else. But Roe purported to use and apply a general test for determining what is and is not a "person" in the sense meant by the Bill of Rights, a test that's very similar to the one used in Eisentrager v. Johnson. And there's simply no way that extraterritorial alien enemy combatants pass the test.

If the test has no generality -- if its supporters aren't willing to stand by its result applied to anything else -- then the precedential value of Roe as a whole is seriously, seriously undermined.

Abortion was not the only case involving a class far outside the complete protection of the law, so far out that they could be lawfully killed under many circumstances, but to whom an evolving concept of morality accorded some degree of moral weight. Enemy combatants provide another class of human beings in a very similar boat. Thus, they provide a test for determining whether Roe v. Wade actually makes sense as a general framework for understanding what the Constitution means by the term "person" Moreover, they provide a test for how we should view conflicts between tradionally held moral values and the ability of Americans to choose distasteful options that further their interest in their safety.

The Roe Court focused Texas' claim that a fetus was a person and it had a compelling interest in a fetus because it was a person. I think the Roe court was correct to hold a fetus was not a person, just as I think Eisentrager was correct to hold that the full panoply of Constitutional rights do not vest upon an extraterritorial enemy combatant.

But the enemy combatant cases go a long way to explain why lack of personhood status does not lead to a conclusion that the moral interests involved lack weight. Both cases involve situations where moral interests are weighed against choices said to be necessary for safety and security. I don't think torture violates the constitution any more than abortion does. In my view the Constitution permits, should we choose to make them, some very immoral choices on our part, and I think we should be honest about this. I think, however, that the very zealousness of the ACLU in its opposition to torture is a good argument as to why the people should be permitted to consider morality in deciding such matters; the Constitution simply cannot, in my view, be read to drum it out of our list of permissable considerations.
4.22.2008 5:06am
theobromophile (www):
Enemy combatants provide another class of human beings in a very similar boat.

I will note that there is nothing unconstitutional about passing a law to protect enemy combatants against death and torture; the Supreme Court merely holds that they are not protected by the Constitution, but, as I understand it, does not preclude legislative protection. After Roe, however, states are prohibited from acting to protect fetal life: it is unconstitutional to outlaw their killing.
4.22.2008 5:19am
Vermando (mail) (www):
Curious to hear Professor Kerr's response to TVK...also appears to me that the use of the term "dignity" in "human dignity" is not negatively comparable to "dignity of the procedure", though I could be missing something.

The first refers to a party and an interest that we may want to accord a certain value - intangible, sure, but still identifiable, akin to a party's 'reputation'. The second, on the other hand, seems to misname what's at stake in a way that makes it seem more valuable than it really is - the "dignity of the procedure" sounds like something abstractly worth protecting but is detached from any identifiable party, whereas "the public's interest in not witnessing a gruesome execution" links the interest and the party in a way that allows us to more accurately gage its importance.

I think that the right jurisprudential outcome is that we will reach better decisions if we always attach interests to parties - so 'the dignity of the person' or 'country' whose liberty is being violated seems appropriate, while 'the dignity of the procedure' is not because it throws us off from what is really at stake.

This could also be, though, why Chief Justice Roberts was such a good advocate - you read the phrase and immediately think, "man, that really is something worth protecting", even though, analytically, it's little more than an empty phrase. I could be wrong on this, though, so I am very interested to hear Professor Kerr's reply to TVK.
4.22.2008 7:15am
alias:

If Chief Justice Roberts is following in the footsteps of AMK, it's time to give up on American jurisprudence and call it a day.

Agreed, except that I think he's fishing for a vote rather than "following in the footsteps." AMK's views are going to be written into the law one way or another until the composition of the court changes. Better to include a weak AMK argument or 2 in an otherwise good opinion than to leave them out and lose his vote.
4.22.2008 7:54am
PersonFromPorlock:
Isn't "dignity" another of those bureaucratic escape words like "appropriate," to be used when no better reason for doing what you want to do can be adduced?
4.22.2008 8:28am
justwonderingby:
Perhaps Roberts and Alito are not as conservative as they were advertised to be - kind of like GWB.

If so, conservatives are right to be hyper-concerned about who is nominated for the Court.

And maybe it's time to start looking outside of elite pathway of HLS, SCOTUS clerkship, DOJ career for our future judges.
4.22.2008 9:22am
Oren:
The ACLU is currently conducting litigation intended to prohibit the military from using the safest possible interrogation methods -- safest for the interrogator
Yes, we know too well the dangers of ping-pong and chess . Those men were truly in grave danger.

Both fetuses and enemy combatants can terminated on demand under our nations laws.
See 10USC816.

A creature that can lawfully be shot on sight
It's quite different to shoot an enemy outside your control than to shoot one that is your prisoner. This distinction, dating back to one General George Washington and the Continental Army, was the policy of the USA for 227 years and will certainly be the policy of the next US President.
4.22.2008 9:49am
Anderson (mail):
I'm just happy to see Alden in amongst the usual suspects. The perversion of the 11th Amendment is one of the few startling things I learned in law school.
4.22.2008 10:02am
Justin (mail):
Ditto what tvk said.
4.22.2008 10:04am
Guest101:

If Chief Justice Roberts is following in the footsteps of AMK, it's time to give up on American jurisprudence and call it a day.

One of my English professors in undergrad shared with us an anecdote in which he was playing golf with a colleague, and hit the ball too low, causing it to arc very high but land only a few feel away. His colleague promptly quipped, "That was a [Ralph Waldo] Emerson ball-- all loft and very little distance." Regardless of political persuasion, I suspect most of us would agree that AMK is the Emerson of the Supreme Court.
4.22.2008 10:38am
Ken Arromdee:
It is inapposite in the sense that the motivation in Carhart tuns opposite to the motivation in Baze--the legislature presumably suppresses the gory details in abortion for its own sake but suppresses the gory details in executions in order to continue them.

Say what?

The legislature suppresses the gory details in abortions because people who see them might then use those details as reasons to oppose abortion. Same reason as in executions.
4.22.2008 10:55am
D.A.:
I think the difference is this: In the "other cases" you listed, the dignity being preserved was that of the people whose Constitutional rights were actually being violated by the government.

In Roberts' Baze opinion, the dignity being preserved is that of the people who have to watch someone's Constitutional rights being violated.

Kind of a big difference.
4.22.2008 11:14am
Orson Buggeigh:
I'm not sure the argument that the statement above,"the legislature presumably suppresses the gory details in abortion for its own sake but suppresses the gory details in executions in order to continue them." is really accurate.


Talk of 'dignity' at an execution seems more likely a view of the elite, not the public. Historically, it seems the public turned out in great numbers for public executions, and the people who objected to the blood and mess were not the masses, but the political and intellectual elites. The English didn't stop drawing and quartering, or burning at the stake because the people demanded an end to the spectacle of public execution. The public flocked to public hangings, even in this country, as long as the practice lasted. The French abolished public guillotining after photographs of an execution appeared in LIFE magazine.


I don't think human nature has changed all that much since we moved executions inside prison walls. Look at the crowds of Iranians flocking to see the public hangings there. But, if one argues that the process is unbecoming and lacks dignity, and should be carried out in private, the reality of the death penalty becomes more abstract to the public. Perhaps it is easier to push for legislation to abolish capital punishment when the reality of it is not evident to the public.

I agree though, it is really hard to make a moral case for abolition of capital punishment without making that same case for the abolition of abortion. Both practices are, in my non-lawyer's opinion, unpleasant, but sometimes the most appropriate outcome given the situation. I accept that some pregnancies are best terminated by abortion, and some lives best terminated at the end of a rope. I don't think the victim of a rape or incest should be forced to bear the child, and I don't think someone like Ted Bundy is worth feeding in prison.
4.22.2008 11:50am
OrinKerr:
tvk writes, and others echo;
Orin, I don't understand the comparison with other AMK opinions. Sure, they invoke the word "dignity"; but Dorf's critique is that the word dignity here is being invoked for the interest in mere aethetics. As I understand Dorf's critique, the "dignity" of execution is invoked to permit covering-up excruciating pain as much as the "dignity" of the presidential office would be invoked to permit covering-up presidential misconduct. In both cases, the argument is that if the public were permitted to see what really goes on in making the sausage, they would be so disgusted that the government would be subject to criticism; and that this somehow justifies government measures to preempt such criticism.
That's just disagreement with the substantive policy position in this case, I think, not criticism of the use of dignity interests generally. As I see it, that's the difficulty with using dignity interests as a substantive constitutional guide: different people will disagree with what dignity requires. It's kind of like relying on "fairness" as a constitutional guide; different people disagree on what is fair, and the word will tend to hide a policy preference rather than iluminate a position (except to those who share the policy position, who will find the argument deep, meaningful, and brave). Of course, if the criticism is that the Justices are not as good as we are at identifying the infringement of dignity interests generally, then I think the point is well-taken.
4.22.2008 1:17pm
vassil petrov (mail):
"dignity" is another world for paternalism. isn't it? at least when used in a modern court's opinion.
4.22.2008 1:19pm
Tony Tutins (mail):
Executions are not vengeance but retribution. We are not meant to enjoy the suffering, the writhing in anguish, of the condemned person. It is supposed to be quick, clean, and painless -- in a word, dignified.
4.22.2008 1:24pm
Justin (mail):
Orin,

I don't think Dorf is meaning to criticize (or even to note) the Court's consideration of a dignity interest. He's simply criticizing what he sees as certain perversions of the dignity interest, in the name of optics of dignity over actual dignity.

Nor do I think his criticism is simply "the Justices are not as good as we are at identifying the infringement of dignity interests generally." The criticism is much more narrow than that.
4.22.2008 1:29pm
loki13 (mail):
I'm going to second Anderson here. I appreciate the inclusion of Alden as well. The entire case law from Hans (another awful reconstruction-era case, mirroring Cruikshank and Slaughterhouse) through Alden gives lie to the originalist critique. The 11th Am. operating through the penumbras and emanations of the 10th, and the general structure of the Constitution? Where.... where have I heard that before?

Not to trot out a tired meme, but for every right that the 'wacky left' creates, there is a remedy that the 'wacky right' takes away. Maybe the leftists should spend more time studying in their CivPro/Conflict/FedJur classes.

But to get to Orin's points, and no disrespect to AMK (who is really, really smart)... um, he writes some of the worst opinions ever. Lawrence (despite reaching the right result IMO) was written so horribly that it truly is difficult to say what it stands for, and while Scalia's parade of horribles was over the top (no, not Scalia!), you can somewhat excuse his befuddlement. As for GvC, his paternalistic manner (only AMK knows what women will regret) is rightfully called out by Ginsburg in dissent.

Like a modern day Narcissus, but better that he spend his time with a mirror than a quill.
4.22.2008 1:35pm
OrinKerr:
Justin,

Yes, and my point is that what makes dignity "optics" or "real" is a personal call as to whether there is a real interest there -- and that usually boils down to a political judgment.
4.22.2008 2:17pm
OrinKerr:
Er, make that a policy judgment informed by your politics.
4.22.2008 2:18pm
Nate W. (mail):
Orin,

I think there's more than just a policy difference here: the dignity interest in Lawrence and Roper is the dignity of the individual, the dignity interest in Baze is the dignity of the state. You may argue that a dignity interest is invalid in any case, but i think a conceptual line can be drawn between the two types of cases.
4.22.2008 2:53pm
Oren:
Orin, are you rejecting every application of "I know it when I see it" or just this particular instance? I don't see "dignity" as particularly harder or easier that "taken as a whole, appeals to the prurient interest" or "reasonable expectation of privacy".
4.22.2008 3:18pm
tvk:
I'm generally with Nate W. here. Orin is right that dignity is, in some sense, always a matter of optics. But while individuals might have a justifiable interest in maintaining a facade against their fellow citizens, it is harder to say that the government is justified in maintaining a facade against its own citizens except very rarely. The "people can't handle the truth about how the sausage is made" argument usually rings alarm bells in me.

The only case that this distinction doesn't explain is Alden, but there "dignity" is used in a somewhat different sense. Instead of looking like States have real power; the Court is saying that States must substantively have that power. In this sense it is the exact opposite of Baze, where the Court is kind of saying that the "dignity" of execution means that they can be substantively exceedingly painful, as long as it doesn't show on television.
4.22.2008 3:30pm
OrinKerr:
Nate W writes:
I think there's more than just a policy difference here: the dignity interest in Lawrence and Roper is the dignity of the individual, the dignity interest in Baze is the dignity of the state. You may argue that a dignity interest is invalid in any case, but i think a conceptual line can be drawn between the two types of cases.
But that's just depending on which policy concern you find personally compelling. The overarching issue is how to balance the power of the state versus the power of the individual. Given that, it isn't surprising that if you think the power of the individual should trump, that you think there is something wrong with paying attention to the state's interest in dignity.

Oren,
I've posted on these topics literally hundreds of times; I stand by what I wrote.
4.22.2008 4:38pm
Justin (mail):
I just clicked on the Findlaw column, and it seems silly to argue over what Mike meant when he says what he meant.

Mike says the comparison relates to the "aesthetic interest in the dignity of an execution at the potential cost of suffering by the prisoner." In Carhart and Baze, the court is using theories of dignity GENERALLY as a reason to overcome a right, whereas in Roper, Alden, and Lawrence (I have no idea about Drayton), the Court was talking about individual dignity AS PART OF THE RIGHT THAT IS CONSTITUTIONALLY PROTECTED.

Under Court precedent, the Eighth Amendment includes protection of personal dignity (Roper), the Tenth Amendment (Alden), or the 14th Amendment (Lawrence). You may disagree with all three arguments (I tend to think the Court is correct on Roper, I think dignity is being used in an entirely different way in Alden, and I disagree with the use of dignity as a grounds for Lawrence, though I agree with the outcome), but this is fundamentally different - not in whether there is dignity but what the word inherently means (this is, I think, where you missed my entire point - which may be my fault for explaining it poorly).
4.22.2008 5:52pm
Justin (mail):
I probably should start reading through before I post - I think what I said somewhat mirrors tvk's post, and thus I agree with him (and Nate W), though I think my focus was slightly different.
4.22.2008 5:54pm
Justin (mail):
Just to make my point (and I think tvk and Nate's) a little clearer:

American Heritage Dictionary - Cite This Source - Share This dig·ni·ty Audio Help (dĭg'nĭ-tē) Pronunciation Key
n. pl. dig·ni·ties

1 The quality or state of being worthy of esteem or respect.

2 Inherent nobility and worth: the dignity of honest labor.

3a Poise and self-respect.
3b Stateliness and formality in manner and appearance.
4 The respect and honor associated with an important position.
5 A high office or rank.
6 dignities The ceremonial symbols and observances attached to high office.
Archaic A dignitary.

I think in Baze and Carheart, the court is using dignity as in definition 3b, and Mike's position seems to be that

a) that type of dignity should not be relevant to constitutional analysis; and
b) The court is either intentionally or unintentionally confusing that type of dignity with dignity definition 1, which Mike believes *is* relevant to constitutional analysis; but by using definition 3b, the Court perverts the analysis.

Whereas in Lawrence and Roper, the court is using definiton 1 correctly (ie, the way intended by the Am. Heritage Dictionary).


It's fine to disagree, but the difference is far more doctrinal than simply a differnce of policy.
4.22.2008 6:10pm
Oren:
Orin, I'm aware of your views on REP (in depth) and Miller (less so) but that doesn't quite explain why dignity interests are any harder to use as "substantive constitutional guide(s)" or more prone to being merely cover for a policy preference. I'm not asking whether you stand by what your wrote, I'm asking you to explain how you distinguish between good constitutional guides and unilluminating ones.
4.22.2008 6:35pm
Oren:
"your wrote" => "you wrote"
4.22.2008 6:37pm
Tony Tutins (mail):
I'm going to say that AMK meant dignity in the Kantian sense of respecting the individual, and not using him as a means. Watching him convulse would violate his dignity, because it would satisfy our base desire to seek vengeance by watching an evildoer suffer.
4.22.2008 7:10pm
Oren:
Tony, that interpretation seems very odd in light of the fast that petitioners want no part of the dignity you speak of.
4.22.2008 8:12pm
ReaderY:
Orin,

I don't disagree at all that Congress outlaw torture and would be completely justified in doing so, and despite the fact that it may subject Americans to somewhat greater risks. Indeed, that's a big part of my point. My point is that legislatures have the power to make "paternalistic" moral judgments, and the Constitution doesn't prevent them from doing so.

It's worth mention that no less a figure than Bertrand Russell wrote that although he could not bring himself to believe that his distaste for torture was the same of distate as his distate for brocolli, he knew of no satisfactory philosophical system capable of proving there was a difference logically in an intellectually acceptable way. The existence of a difference was, in his view, nothing more than a matter of emotions, traditions, and beliefs. Although he had strong attachments to his particular take on these matters, he didn't believe he had a rational basis for thinking his take on these matters was better than anyone else's, and he admitted this.
4.22.2008 9:48pm
OrinKerr:
Oren,

I don't, and never said I did.
4.23.2008 4:02am
OrinKerr:
I think in Baze and Carheart, the court is using dignity as in definition 3b,

I disagree with that. I think the court is mostly using it as definition 2 (although I realize that many people would say it is wrong to do so).
4.23.2008 4:04am
BlueBear (mail):
"Dignity" is open-textured. So what?
4.23.2008 10:18am
Justin (mail):
Orin, really? That AMK was saying that the process of execution was "noble" and had "inherent worth" - which would somehow be defeated if the Executed was permitted to spasm? This seems unlikely.

It seems even more unlikely that the Court was saying that in Carhart that BECAUSE certain types of abortion is not "noble" and does not have "inherent" worth, it may be banned. The (somewhat scary) implication is that other forms of abortion are noble, and therefore do have inherent worth?

Or are they simply talking about the nobility of life? In that case, why would it matter what FORM of abortion occurred to destroy that "inherent worth"?

It seems 3b is more likely, imho. And yes, we could have a debate as to whether the dignity of 3b (or 2, if you want to be nitpicky) is a valid state interest, it's certainly not the SAME debate as to whether definition 1 is a protected constitutional right.
4.23.2008 12:43pm