Human Dignity is a Constitutional Principle

New York Times

Dignity Is a Constitutional Principle

By BRUCE ACKERMANMARCH 29, 2014

LINK

President Lyndon B. Johnson signing the Civil Rights Act on July 2, 1964, in
the East Room of the White House. At his right shoulder is Senator Hubert H.
Humphrey

WITH gay marriage litigation moving forward at warp speed — federal judges have struck down five state bans on same-sex marriage since December — we may soon witness one of the worst shouting matches in Supreme Court history. Passions were already running high last June, when a divided court struck down federal, but not state, laws defining marriage exclusively as a relationship between a man and a woman. Justice Antonin Scalia denounced the majority opinion, which cited the demeaning and humiliating effects of the Defense of Marriage Act, as “legalistic argle-bargle” lacking any basis in our constitutional tradition. Writing for the five justices in the majority, Justice Anthony M. Kennedy countered that the assault on human dignity should be decisive in condemning the statute as unconstitutional.

In making this “dignitarian” move, Justice Kennedy relied principally on his two earlier pathbreaking opinions supporting gay rights, in 1996 and 2003. He did not link his guiding philosophy to the broader principles hammered out during the civil rights revolution of the 1960s. Yet that constitutional legacy would strongly support any future Supreme Court decision extending Justice Kennedy’s reasoning to state statutes discriminating against gay marriage. Indeed, the court should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution — and thereby demonstrate that it is Justice Scalia, not Justice Kennedy, who is blinding himself to the main line of constitutional development.

Consider the great speeches made 50 years ago today as the Senate began its decisive debate on the Civil Rights Act of 1964. The bill’s floor managers were the Democrat Hubert H. Humphrey and the Republican Thomas H. Kuchel. As they surveyed the scene on March 30, 1964, it was far from clear that they had the 67 votes required to break a filibuster led by Southern senators. So they were determined to make their case to the larger public and mobilize popular support for a sustained effort to win a cloture vote.

As The Washington Post reported at the time, the two floor leaders dominated the first day’s proceedings with elaborate presentations that set the stage “for a serious no-nonsense debate” on the fundamental issues. Humphrey began with a remarkable three-and-a-half-hour speech that introduced the central theme of humiliation by comparing two travel guidebooks: one for families with dogs, the other for blacks. “In Augusta, Ga., for example,” Humphrey noted, “there are five hotels and motels that will take dogs, and only one where a Negro can go with confidence.” He argued that if whites “were to experience the humiliation and insult which awaits Negro Americans in thousands and thousands of such places, we, too, would be quick to protest.” Kuchel followed up with a second major presentation, emphasizing the “urgency” of ending the “humiliating forms of discrimination” confronting blacks.

On other occasions, Humphrey repeatedly linked this anti-humiliation principle to the larger aim of securing “freedom from indignity” for blacks and other groups. This link was further reinforced by President Lyndon B. Johnson. “We cannot deny to a group of our own people,” he argued, “the essential elements of human dignity which a majority of our citizens claim for ourselves.” In making their case to the American people, these leaders succeeded in pressuring Senate fence-sitters to close down the filibuster, on June 10, after it had monopolized the floor for more than two months.
But they failed in their larger aim. Their elaborate speeches were also addressed to future generations, articulating fundamental principles that Americans should consider in defining the terms of constitutional equality. Yet as Justice Scalia’s denunciation of Justice Kennedy’s opinion illustrates, America’s lawyers and judges are in danger of consigning these views of Congress and the president to legal oblivion. They seem to suppose that the only civil rights opinions worth studying are those of the Warren and Burger courts — even though the judicial initiatives of those courts would have gone nowhere without the mobilized support of the political branches and the American people.

This is a mistake. To be sure, the judges of the civil rights era also emphasized the link between institutionalized humiliation and the constitutional requirements of equal protection. Most famously, Brown v. Board of Education declared school segregation unconstitutional precisely because it stigmatized blacks, generating “a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.” Yet once we recognize that Congress and the president broadened and deepened the nation’s commitment to Brown’s anti-humiliation principle, we can gain a larger perspective on contemporary civil rights struggles.

This point applies not only to gay marriage but also to sexual harassment. When the courts condemn “harassment” on the job or in schools, they are using a different word to describe the very same dynamics of institutionalized humiliation repudiated by the framers of the Civil Rights Act.

This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States?

Fifty years ago, our parents and grandparents faced the same question when confronting the humiliations imposed on blacks. As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”


Bruce Ackerman is a professor of law and political science at Yale, and the author, most recently, of “We the People, Volume 3: The Civil Rights Revolution.”