BooknewsReid (law, NYU School of Law) maintains that the controversy which led to the Revolution had more to do with jurisprudential and constitutional principles than with democracy and equality. Impressive documentation. In this collection of original papers, 12 philosophers and legal thinkers focus on the relationship between our constitutional rights and human dignity. Annotation c. Book News, Inc., Portland, OR (booknews.com)
William D. PedersonIn a system of shared powers, justices and chief executives sometimes lose perspective on the roles they play in a democratic society. These overlapping constitutional roles are further complicated by the personalities of the players. For example, in 1989 during his mid-life crisis, Louisiana Governor Buddy Roemer bungled his role as a politician and his judicial role as the state's chief executive. After acting too much like a "judicial tyrant" in both capacities, the Harvard-educated governor abrupt- ly turned to a Baptist divinity school guru who persuaded the governor to save himself through pop psychology. Suddenly Roemer began quoting America's number one personal growth psychologist, Robert Fulghum, and Gary Smalley, who preaches a biblical gospel "to honor others as if they were valuable." To remind himself of his new conversion to treating others with dignity -- especially politi- cal opponents -- the governor hung a large frame placard with the word "honor" in his capitol office. Though Roemer's legislative initiatives were justified in general, his arrogant methods in dealing with the legislature and the public resulted in his defeat. He lost in the gubernatorial primary after serving a single term (1988-1992), despite the fact that his tight-fisted clemency behavior toward criminals was immensely popular with the public. Apparently, the governor found it expedient not to "honor" criminals who had served sentences, since he granted the second lowest number of pardons, commuta- tions and reprieves of Louisiana governors since World War II. The governor had problems with a policy of universal dignity. Some readers may find THE CONSTITUTION OF RIGHTS as an allegory, and likely judicial outcome to the Roemer political escapade, if Supreme Court justices adopted the jurisprudence suggested in this book. The editors have gathered a dozen essays exploring the notion of "human dignity" as a basis for jurispru- dence. The authors are noted moral, political and legal theo- rists. Most of the essays grow out of the contributors' previous well- known works. The volume is formally dedicated to former Supreme Court Justice William J. Brennan, Jr. In an informal sense, the volume is a tribute to Ronald Dworkin's approach to human rights. Somewhat surprisingly neither Brennan nor Dworkin is the topic of an in-depth essay in the book, though they are mentioned through- out. Nine of the 12 essays provide an overview of the human dignity approach, while three either critique or refute this approach. Reflecting the backgrounds of the editors as philosophers at Santa Clara University, the bulk of the essays are written by fellow moral and legal scholars. If Robert Fulghum and Gary Smalley were Roemer's psychology-preacher team, the jurispruden- tial equivalent in the essays are Immanuel Kant and Ronald Dworkin with William Brennan serving as the pioneering justice or philosopher- king. Because the U.S. Constitution does not mention the word human dignity, the book opens with an abstract philosophical essay entitled, "Human Dignity as the Basis of Rights" by Alan Gewirth who uses an analytical approach to argue that human rights grow out of the concept of human dignity. This chapter is followed by A.I. Melden's, "Dignity, Worth and Rights," that supports Gewirth's view in a more concrete essay. The subsequent chapters tend to be case studies in relating individual rights in the Bill of Rights to the notion of dignity. William A. Parent's "Constitutional Values and Human Dignity") is a readable overview of the Constitution with special reference to the Fifth and Fourteenth amendments. David A. J. Richards in "Constitutional Liberty, Dignity, and Reasonable Justification" broadens John Locke's argument for a principle of religious toleration into constituting the American people as a "community of principle." Bernard R. Boxill "Dignity, Slavery, and the Page 101 follows: Thirteenth Amendment" recalls Roemer's arrogance toward legisla- tors through the author's reminder that Kant, "the father of the categorical imperative," regarded Negroes as inferiors. Martha Minnow in "Equality and the Bill of Rights" reminds readers that equality is not mentioned in the Bill of Rights and there is a built in tension between liberty and equality. Unfortunately, she does not distinguish between moral and material equality. Hugo Adam Bedau in "The Eighth Amendment, Human Dignity, and the Death Penalty" presents a very thoughtful moral argument against capital punishment, even though Kant used the notion of human dignity to defend the death penalty. R. Kent Greenawalt in "The Right to Silence and Human Dignity" views human dignity not as "THE KEY to judgment about the right to silence," but as "a very helpful guide." Louis Henkin in "Human Dignity and Constitution- al Rights" presents a readable and brief historical overview of America's experience in promoting or retreating from an universal standard of human dignity. Three of the essays are presented primarily as a critique of the human dignity approach. Raoul Berger in "Justice Brennan, `Human Dignity,' and Constitutional Interpretation" offers the most negative assessment of the approach. It serves as a standard argument against judicial activism. Frederick Schauer in "Speak- ing of Dignity" uses less overkill than Berger by posing a series of legitimate questions in regard to how a dignity approach might undermine free speech. And finally, Owen M. Fiss in "The Other Goldberg" critiques William Brennan's presentation before the New York Bar Association in September, 1987, in which Brennan celebrat- ed "passion" in jurisprudence and even criticized Cardozo's timidity in using it. Critics of the human dignity approach among judges are likely to regard it as a recipe for disaster, perhaps even worse than Roemer's use of pop psychology. Yet this collection of essays might serve as a particularly useful supplementary text in jurisprudence courses. It's unfortunate that the text does not include a full biographical sketch of William Brennan and his work on the Supreme Court. He is a more complicated jurist than the text suggests. Except for one footnote to B. F. Skinner who attacked the idea that persons have "dignity," the text avoids psychology. This is surprising since considerable psychological research supports the human dignity approach, particularly in showing how esteem and equality are related. No mention is made of the work of Lawrence Kohlberg, James C. Davies' application of Abraham Maslow's work to politics, or Angus Campbell, who late in his behavioral career came to understand that economic models of human behavior are lacking. There may be additional grounds to support this approach based on a study of the lives of our greatest leaders -- including Supreme Court justices. Although often overlooked, the clemency behavior of our greatest presidents suggests an underlying "human rights" philosophy that distinguishes them as a group from the others who chose never to act against public opinion. For example, though amnesty is seldom a popular issue, our Mount Rushmore presidents, as well as the other most active and flexible presi- dents, granted more amnesties than all the other presidents combined. These chief executives, unlike Governor Roemer, kept their political and judicial roles in balance--for the most part, perhaps because they were among our most mature leaders. On the other hand, the judicial power of a chief executive is seldom the primary issue of a presidential term. And justices have a much more restrained role to play in our system of shared powers. This book with its notion of human dignity may serve as a good point of departure in discussions about ideal and practical conceptions of justice.
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