Is Dignity a Constitutional Principle?

To begin with, it is difficult to imagine an interpretation of equal protection that does not include an appeal to human dignity at some level.

The New York Times OpEd by Bruce Ackerman, titled “Dignity is a Constitutional Principle,” explored the Roberts Court’s opinion in U.S. v. Windsor, which stripped DOMA of its restrictions for same-sex couples. Justice Anthony Kennedy’s opinion for the majority stressed that the Defense of Marriage Act served to single out a subset of individuals and impose a restriction upon them that would have little to no effect on those not within the specific subset. This follows a short line of precedent that Justice Kennedy has established over time which has acted to, to some extent, bring about equal protection for same sex couples. Further, the reasoning behind Justice Kennedy’s opinion seems, at least to my mind, to echo his opinion in Lawrence v. Texas, wherein he claimed that Texas’ anti-sodomy laws were rooted solely in animus – and animus is no basis for law.

To clarify: both of these cases were concerned with Due Process; Windsor under the 5th Amendment, and Lawrence under the 14th. The substantive due process doctrines that emanate from the 5th Amendment’s Due Process Clause were developed by the Supreme Court over time (and I say developed, because they just plain made it up), and are understood, by the Court, to intrinsically include an equal protection component.

Ackerman argues that the Court should have spilled some ink including the Warren Court’s decision in Brown within Windsor’s authorities and obiter dicta, but I’m not sure I see the logic in that opinion. Brown was certainly concerned with equal protection and human dignity – of this, there can be no question. However, the facts of Brown are not sufficiently similar to those of Windsor to warrant going out of one’s way to include it within the scope of Windsor. My primary reason for saying this has to do with the relevant Constitutional doctrine: Brown was concerned with a state statute and was accordingly decided under the Fourteenth Amendment, which is typically used as a standard for state actions; whereas Windsor, concerned with a federal statute, was decided under the 5th Amendment – understood to apply to the Federal government only.

While it is a logical presumption to say that the dignitarian principles of Brown would have been  well suited to serve as dicta in the Windsor opinion, the fact that they are concerned with differing Constitutional passages means, to my mind, that one is not controlling precedent upon the other.

James on Nussbaum on McClean on Taney on Dred Scott… Whew…

James Arrabito

In discussing the McClean dissent to the majority opinion in Dred Scott v. Sanford in relation to the philosophical precepts illustrated by Martha Nussbaum in her book, Hiding from Humanity, my gaze falls naturally upon one particular statement made during the oral arguments before the Supreme Court: “it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law.” See: Dred Scott v. Sanford 60 U.S. 393 (1857) at 533

This is a significant statement in terms of Nussbaum’s writings, as it provides further example of the unreliable nature of the use of emotions, particularly disgust, in the law. As can be observed by browsing through the transcripts of the oral arguments, the advocate for John Sanford appealed to popular denigration of non-whites as rationale for their exclusion, whether free or enslaved, as American citizens. This denigration can, according to Nussbaum, be classified as making the non-white an object of disgust. As is discussed, the aiming of disgust at humans has the often intentional effect of lowering and debasing those individuals; the effect, indeed, of classifying them within a hierarchy of social strata. This is exemplified through a discussion of the Latin word “fastidium,” which simultaneously implies disgust and hauteur. Naturally, disgust is not a natural attribute in human cognition, and is rather developed over time through socialization with parents and, more importantly according to Herbert Marcuse, with peers.

If we accept the aforementioned as the genesis of disgust’s development in human social interaction and attitudes, the unreliable nature of disgust as a basis of law can become apparent. As disgust is an attitude, or collection of attitudes, and attitudes are formed by a synthesis of one’s aggregate experiential perceptions and the socialization with parents and peers, then naturally the logical conclusion is that the objects of disgust will differ, if only slightly, from person to person. Nussbaum would seem to agree with this when she says that there are not universal objects of disgust; although, to be fair, she hedges her bet by saying that there are those objects of disgust that have the effect of being universalized – a semantic trick, in my opinion.

The earlier quoted statement from the McClean dissent seems, to me, to be an affirmation before the fact of Nussbaum’s consideration of this issue. The logical implication of his statement that the exclusion of non-whites is a matter of taste as opposed to a matter of law is a direct shot at the use of popular attitudes that denigrate an aggregate of individuals based merely upon the notion that one is better than them, and not, as is argued, a matter of precedent or Constitutional cannon. Much like the appeal to poplar disgust in the passed of Colorado’s anti-homosexual laws, McClean argues that these arguments are no more than a call to society’s base attitudes of social hierarchy and false sense of purity.

 

 

Detritus, Decay, Disgust, HOORAY

As if the discussions about slavery and slave codes were not uplifting enough, we’re going to talk about the nature of human disgust today!

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Martha “Nussy” Nussbaum seems to except the notion that disgust is a learned trait in humanity, kindled and stoked by a child’s socialization with its parents and later on with its peers. This is a logical conclusion to reach, as disgust is in itself a social more and not an absolute. Nussbaum argues that there are certain objects of disgust that are so common between all societies that, while not technically absolute, they have the effect of being absolute.

Ok. I’ll bite.

I think at that point Nussbaum was just playing the semantics game, but she’s got the Harvard PhD and I do not even have a BA yet, so perhaps I’ll just defer to her on this point…

ANYWHO… The thing I found particularly interesting was how disgust is formed and aimed. The theory with which Nussbaum seems, thus far into the book, to be most comfortable working with – and seems to be accepting, with some nuance – is a two-part notion that disgust is a mechanism that helps humanity to ignore the fact of its animal origins – and that we are animals like any other (well – we walk upright and have thumbs, which may have helped us see predators over tall grass and wield big sticks – so maybe we’re not exactly like the rest). This, of course, jives very well with the ‘Frommian’ theory that I have discussed several times in the past on this blog. The second part of the theory is that it is aimed against those objects that are reminders of the body’s propensity for decay. Thus, according to this theory, we find shit, piss, blood, fungus, mucus, and general gooey gushiness gross because it reminds us in the end that we are made of those things, and becoming those things.

Naturally, the argument is not  being made that we make  these connections willfully, or purposefully; nor is the argument being make that we are even aware of the connection being made by our minds. These are subconscious processes.

Now, the argument is mentioned that there are certain reminders of our animal bodies that impress, rather than disgust; durability, strength, agility, speed, flexibility… Cockroaches are very durable, strong, and fast – yet they are objects of disgust and scorn. Many athletes are durable, strong, and fast – and we love them (unless their name is Alex Rodriguez). This is accounted for in the argument that we associate disgust namely with those animals, or animal attributes, that have the properties of those reminders of decay mentioned earlier. We associate – with good reason – cockroaches with decay, and thus they are objects of scorn. And thus, the two seemingly divergent theories mould together.

On Eudaimonic Judgements

This one might be a little bit disorganized, as I am writing this from stream of consciousness; I’m thinking this out as I write it.

 

If my thoughts  on Nussbaum’s conceptions of emotions and compassion are at all coherent and accurate, then logically they defeat, at least to some extent, her assertions that compassion involves eudaimonic judgements. This Aristotlelian concept of the pinnacle of human good – the ultimate in human experience and ethics – which has been ably adopted by Nussbaum  assumes that compassion must be based upon the wish to see the other experience eudaimonia. This, Nussbaum contends, is the result of the other being of personal importance  to the self. To paraphrase Nussbaum, we do not show true compassion for those others from which we are significantly removed. The compassion we show for them is relevant only as far as we keep the distant other in our minds.

This is illogical to me, however. For, emotions in general are only extant for as long as they are in they are relevant to the mind. Further, Nussbaum argues that “the suffering of people” is the object of the emotion, however, as I stated yesterday, I do not believe that to be entirely accurate.

On Eudaimonic Judgements

This one might be a little bit disorganized, as I am writing this from stream of consciousness; I’m thinking this out as I write it.

 

If my thoughts  on Nussbaum’s conceptions of emotions and compassion are at all coherent and accurate, then logically they defeat, at least to some extent, her assertions that compassion involves eudaimonic judgements. This Aristotlelian concept of the pinnacle of human good – the ultimate in human experience and ethics – which has been ably adopted by Nussbaum  assumes that compassion must be based upon the wish to see the other experience eudaimonia. This, Nussbaum contends, is the result of the other being of personal importance  to the self. To paraphrase Nussbaum, we do not show true compassion for those others from which we are significantly removed. The compassion we show for them is relevant only as far as we keep the distant other in our minds.

This is illogical to me, however. For, emotions in general are only extant for as long as they are in they are relevant to the mind. Further, Nussbaum argues that “the suffering of people” is the object of the emotion, however, as I stated yesterday, I do not believe that to be entirely accurate.

On Martha Nussbaum’s Conception of Compassion in CrimLaw

Tethered compassion is widely accepted, and according to the United States Supreme Court, mandatory, consideration in criminal sentencing. The premise is that one may, in certain cases, consider the subjective facts surrounding an action when considering convictions and punishments. Under this type of doctrine, compassion for the state of mind of the defendant can lead to diminution of the sentence, or exculpation in rare instances.

In her book, Hiding From Humanity, Martha Nussbaum explores at some length the notion of compassion, and how it can be flawed in its subjectivity. Before answering this, we must explore her conception of an emotion.

According to Nussbaum, and emotion is not an irrational pattern of thoughts and behaviors that are produced solely in reaction to external stimulus, but are developed over time in response to socialization, the formation of relationships, and the development of certain cognitive patterns. In this light, emotions can be seen as heuristic modes of response to external stimuli. In Nussbaum’s conception, these responses must have two integral parts: an object, and an appraisal. The object is, naturally, the focus of the emotion; the appraisal is the value judgement focused on the object. By this conception, fear of dogs is a value judgement – that the object is dangerous and must be avoided – where the object is a Shih-Tzu. In this, I couldn’t blame someone – those things are annoying.

This is where my questions regarding Nussbaum’s conception of compassion comes into play. She contends that compassion is focused externally – that the object is the other, as opposed to the self. While she lends credence to the notion that the genesis of compassion could be the uniquely human ability to understand that the predicament of the other could easily become your own; the root of compassion is, perhaps. our awareness of our mortality. I contend, however, that this is not merely the root of this particular emotion, but also the object of it.

Compassion is, in my interpretation of Nussbaum’s emotive theory, the fear of experiencing the plight of the other. In this sense, the other is not the object of our pity, but we are the object of our own pity. We do not, necessarily, pity the other for their troubles; rather we pity our own susceptibility to those very same troubles. Pity is, in this conception, equivalent to fear. The object is myself – or perhaps my mortality, or whatever – and the struggle to avoid the stimulus experienced by the other is the value judgement – fear.

More tomorrow.

The McClean Dissent, Part Deux

When I consider this dissent in the light of Dworkins writings, I am immediately reminded of the discussion of checkerboard policies versus law as integrity. As we are now well aware, Dworkin proposed that integrity – or continuity – is necessary in the law, such that equity and justice cannot be rightly done by when predictability in how the law will act upon a person is lacking. McClean’s dissent offers a rather striking dichotomy when looked at in this light. On the one hand, his appeal to the persuasive literature provided by the Framers, and to the precedents of the Court – not to mention his appeal to Somersett v. Stewart, represent an attempt at giving the law a measure of integrity – to at least the extent that integrity means continuity. His arguments that there were no established precedent forbidding Black citizenship, and that there was precedent allowing for the Congress to exert legislative control over territories represented an attempt to establish a clear, distinct, and straight line of legal reasoning. However, there is an irony in this, because in allowing the Missouri Compromise to stand as McClean wished would represent the implicit continuance of checker-board policies, which run contrary to Dworkin’s vision of law as integrity. As Dworkin discussed – and as I have discussed previously – checkerboard policies are those that affect different locales, populations, or communities differently. In this spirit, the Missouri Compromise, which allowed slavery in some communities but not in others, is a checkerboard policy. Hence the dichotomy I spoke of earlier. While McClean’s logic in his dissent represents a clear attempt at law as integrity, some 130-odd years before it was written of, it is repugnant on its face to Dworkin’s writings on checkerboard policies. I added the emphasis in the last sentence to make very clear that in Dworkin would in no way have supported the majority decision in this case, and that while the dissent is repugnant on its face to Dworkin’s writing in this area, it would certainly have been a step in the right direction as far as Dworkin – a natural law and human rights theorist – would have been concerned.