1. See, e.g., his “The Constitution of the United States: Contemporary Ratification” in (1985) 19 U.C. Davis L. Rev. 2; “Rededication Address: The ABA’s Memorial to the Magna Carta” in (1985) 19 Loyola of Los Angeles L. Rev. 55; “The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individuals Rights” (1986) 61 New York University L. Rev. 535; “Color-Blind, Creed-Blind, Status-Blind, Sex-Blind” in (1987) 14 Human Rights 30; “State Constitutions and the Protection of Individual Rights” (1977) 90 Harvard L. Rev. 489. For Brennan’s argument against the death penalty in terms of human dignity see, e.g., Furman v. Georgia, (1972) 408 U.S. 238 at 270–73; Gregg v. Georgia, (.1976) 428 U.S. 153 at 229ff; McCleskey v. Kemp, (1987) 481 U.S. 279 at 336; Stanford v. Kentucky, (1989) 106 L. Ed. 2d, 306 at 326. See also Brennan’s Oliver Wendell Holmes, Jr. Lecture, “Constitutional Adjudication and the Death Penalty: A View from the Court” (1986) 100 Harvard L. Rev. 313.

2. “The Constitution of the United States: Contemporary Ratification”, ibid, at 8.

3. Chambers v. Florida, (1940) 309 U.S. 227 at 241.

4. No philosopher has more convincingly made the case for careful attention to ordinary language distinctions than Austin, J.L.. See his classic essay “A Plea for Excuses” reprinted in Urmson, J.O. & Wamock, G.J., eds, Philosophical Papers, 3d ed. (Oxford: Clarendon Press, 1979).CrossRefGoogle Scholar

5. See Wittgenstein’s, Ludwig Philosophical Investigations, ed. by Anscombe, G.E.M. (New York: Macmillan, 1953) at 20, para.Google Scholar 43. “For a large class of cases—though not for all—in which we employ the word ‘meaning’ it can be defined thus: the meaning of a work is its use in the language.”

6. Ibid, at 49, para. 122. Wittgenstein placed a good deal of emphasis on attaining a truly comprehensive conceptual viewpoint. In his words:

A main source of our failure to understand is that we do not command a clear view of the use of our words. Our grammar is lacking in this sort of perspicuity.—A perspicuous representation produces just that understanding which consists in ‘seeing connexions’.

7. Austin, supra, note 4 at 185.

8. The conceptual goals of system and clarity are inextricably connected. Carefully drawn distinctions yield a complex but coherent scheme of ideas. Rawls, claims these to be among his goals in A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971) at 52 and 507.Google Scholar

9. Dworkin, emphasizes the role of paradigms in judicial interpretation. See his Law’s Empire (Cambridge, Mass.: Harvard University Press, 1986) at 72–75.Google Scholar

10. I say that they are “presumptively suspect” to allow for the possibility of a successful challenge to a paradigm. As Dworkin points out, “Paradigms anchor interpretations, but no paradigm is secure from challenge by a new interpretation that accounts for other paradigms better and leaves that one isolated as a mistake.” Ibid, at 72.

11. The relation between value and integration or organic unity is explored at length in Nozick’s, Robert Philosophical Explanations (Cambridge, Mass.: Harvard University Press, 1981).Google Scholar

12. Plessy v. Ferguson, (1896) 163 U.S..

13. Brown v. Board of Education, (1954) 347 U.S. 483.

14. Poe v. Ullman, (1961) 367 U.S. 497 at 542.

15. See Thornburgh v. American College of Obstetricians and Gynecologists, (1986) 476 U.S. 747 at 787.

16. Ely, John Hart, Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980).Google Scholar

17. Feinberg, Joel forcefully make this point in his Social Philosophy (Englewood Cliffs, N.J.: Prentice-Hall, 1973) at 94.Google Scholar

18. Here I again endorse Rawls’ conception of moral theory. See his A Theory of Justice, supra, note 8, at 52 and 111, and his “Kantian Constructivism in Moral Theory,” in (1980) LXXVII The Journal of Philosophy 515, especially at 571 and 572.

19. Kant, advances these claims throughout his works on moral theory. Here (and in the notes that follow) I cite only representative passages: The Doctrine of Virtue, ed. by Gregor, Mary J. (Philadelphia: University of Pennsylvania Press, 1964) at 36, 37, and 80;Google Scholar Foundations of the Metaphysics of Morals, ed. by Beck, Lewis White (Indianapolis: Bobbs-Merrill, 1959) at 74 and 76;Google Scholar Religion Within the Limits of Reason Alone, ed. by Greene, Theodore M. & Hudson, Hoyt H. (New York: Harper and Row, 1960) at 67.Google Scholar

20. Foundations, ibid, at 71.

21. Critique of Practical Reason, ed. by Beck, Lewis White (Indianapolis: Bobbs-Merrill, 1956) at 98.Google Scholar

22. The Doctrine of Virtue, supra, note 19 at 99.

23. Foundations, supra, note 19 at 9–10.

24. Ibid. at 27, and the Critique, supra note 21 at 74 and 121.

25. Foundations, ibid..

26. Critique, supra, note 21 at 6 and 166.

27. The Metaphysical Elements of Justice, ed. by Ladd, John (Indianapolis: Bobbs-Merrill, 1965) at 46;Google Scholar and the Critique, supra, note 21 at 89.

28. Critique, supra, note 21 at 119.

29. Foundations, supra, note 19 at 54.

30. Ibid. at 65 and 69; Critique, supra note 21 at 33; The Doctrine of Virtue, supra, note 19 at 10.

31. Critique, ibid, at 121; Foundations, supra, note 19 at 58.

32. Foundations, ibid, at 9 and 10.

33. Ibid, at 10.

34. Critique, supra, note 21 at 29 and 100; Foundations, supra, note 19 at 71 and 74; The Doctrine of Virtue, supra, note 19 at 20 and 26.

35. Critique, supra, note 21 at 97.

36. Ibid, at 52; Foundations, supra, note 19 at 67 and 78; The Doctrine of Virtue, supra, note 19 at 180.

37. Foundations, ibid, at 47.

38. Williams, Bernard makes this point in his rich essay, “The Idea of Equality” in Problems of the Self (Cambridge: Cambridge University Press, 1973) at 285.CrossRefGoogle Scholar

39. Willard Gaylin defends the idea of dignity as the biological superiority of our species in his “In Defense of the Dignity of Being Human” (1984) 14 Hastings Center Report 18. Leon Kass proposes a similar view in his “Death with Dignity and The Sanctity of Life” (March, 1990) 89:3 Commentary 33 at 37ff.

40. For a perceptive discussion of these issues I recommend Gould’s, Stephen Jay Wonderful Life: The Burgess Shale and The Nature of History (New York: W. W. Norton, 1989).Google Scholar

41. See Kant’s discussion of the good will in the Foundations, supra, note 19 at 9 and 10.

42. The term “naturalistic fallacy” has its origin, I believe, in Moore’s, G.E. classic Principia Elhica (Cambridge: Cambridge University Press, 1903).Google Scholar Moore argues that “good” is indefinable, in this respect it is just like the adjective “yellow.” Those who believe that “good” names one or more natural properties are, therefore, guilty, according to Moore, of fallacious reasoning. 1 do not think that “dignity” names a simple, indefinable property. But 1 do believe that all naturalistic definitions of “dignity” are misconceived.

43. King’s well-known “I have a dream” speech is reprinted in Williams, Juan, ed., Eyes on the Prize (New York, Viking Press, 1987) 205.Google Scholar King’s most forceful condemnation of racist segregation is set forth in his “Letter from a Birmingham Jail” reprinted in Bedau, Hugo, ed., Civil Disobedience (New York: Pegasus, 1969)76.Google Scholar

44. 1 particularly recommend the following accounts: Lanzmann, Claude, Shoah (New York: Pantheon Books, 1985);Google Scholar Adelson, Alan & Lapides, Robert, eds, Lodz Ghetto (New York: Viking, 1989);Google Scholar Levi, Primo, Survival in Auschwitz (New York: MacMillan, 1959);Google Scholar and Levi, Primo, The Awakening (New York: MacMillan, 1965).Google Scholar

45. I will use these words interchangeably despite slight differences in their meaning.

46. See, among others, Thomson, Judith Jarvis, The Realm of Rights (Cambridge, Mass.: Harvard University Press, 1990) at 373.Google Scholar See also Gewirth, Alan , “The Epistemology of Human Rights” (1984) 1 Social Philosophy and Policy 24.Google Scholar

47. Thomson, ibid, at 39–43, and Joel Feinberg, supra, note 17 at 56–61, have more to say about claimrights.

48. Other properties which have nothing to do with a person’s character include being old, being sick, being poor, being gay, and being fat. Unfortunately individuals are often put down and derided just because they are old or sick or fat. This kind of injustice is sad testimony to the common tendency to perceive socially unpopular traits as signs of moral degeneracy.

49. The idea of rights as trumps that safeguard us against capricious majority rule is a central theme of Dworkin’s, Ronald Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977).Google Scholar

50. I am assuming that “dignity” and “worth” are very close in meaning. Philosophers, including Kant, often argue as if they were synonymous.

51. John Rawls’characterization of the evil person is extremely perceptive. He writes: “What moves the evil man is the love of injustice: he delights in the impotence and humiliation of those subject to him and he relishes being recognized by them as the willful author of their degradation.” A Theory of Justice, supra, note 8 at 439.

52. Scanlon, T.M., “Due Process” in Chapman, John & Pennock, J. Roland, eds, Due Process (New York: New York University Press, 1977) 93 at 96.Google Scholar

53. See, for example, Charles Miller, “The Forest of Due Process Law”, ibid., 3 at 34: “The idea of due process that lasts is that of individual freedom from arbitrary government imposition.”; Brest, Paul, “In Defense of the Antidiscrimination Principle” (1976) 90 Harvard L. Rev. at 102;Google Scholar Rutland, Robert, The Birth of The Bill of Rights (Boston: Northwestern University Press, 1983).Google Scholar

54. The abridged Oxford English Dictionary.

55. The principle take on even more significance today. As Mr. Justice Brennan writes: “there exists in modern America the necessity for protecting all of us from arbitrary action by governments more powerful and more pervasive than any in our ancestors’ time.” See his “State Constitutions and the Protection of Individual Rights”, supra, note 1 at 495.

56. See Poe v. Ullman, supra, note 14 at 541.

57. See Frankfurter’s dissent in Barsky v. Board of Regents, (1954) 347 U.S. 442 at 470ff. Frankfurter believes that the ideal of due process pertains to our deepest notions of what is just and fair. See his dissent in Selesbee v. Balcom, (1950) 339 U.S. 9 at 16ff. There is obviously a close conceptual relation between the ideas of due process and fairness.

58. Kadish, Sanford advances this claim in his essay “Methodology and Criteria in Due Process Adjudication—A Survey and Criticism” (1957) 66 Yale L. J. 347.Google Scholar Kadish does not, however, explain how due process preserves human dignity.

59. Dworkin, Ronald furnishes this opaque formulation in his essay “Justice and Rights” reprinted in Taking Rights Seriously, supra, note 49 at 179.Google ScholarPubMed

60. The close relationship between equality and the condemnation of arbitrary distinctions is more fully explored in Owen Fiss, “Groups and the Equal Protection Clause” (1976) 5 Phil. & Pub. Affairs 107.

61. Thomas Jefferson appreciated this connection between dignity and arbitrariness. Note his remark that in the Europe of his day “…the dignity of man is lost in arbitrary distinctions.” See Basic Writings of Thomas Jefferson, ed. by Foner, Philip (New York: Wiley Books, 1944) at 231.Google Scholar Jefferson’s concern belies any suggestion that our Founders were indifferent to the institutional protection of human dignity.

62. Plessy v. Ferguson, (1896) 133 U.S., 537 at 554.

63. Louisiana ex. re. Francis v. Resweber, (1947) 329 U.S. 459 at 468.

64. By “racist” and “sexist” restrictions I mean those which assume that members of certain races and women are, by virtue of their race and sex, inferior or worthless human beings.

65. Justice Warren believed that the Constitutional foundation underlying the privilege of self-incrimination is the respect a government must accord to the dignity and integrity of its citizens. See his opinion for the Court in Miranda v. Arizona, (1966) 384 U.S. 436 at 460.

66. See “Talcing Rights Seriously”, supra, note 49 at 198–99.

67. Brennan’s “The Constitution of the United States: Contemporary Ratification”, supra, note 1 at 8.

68. Ely, supra, note 16 at 92.

69. Ibid, at 100.

70. I say that it might be easier to resolve because some philosophers have quite convincingly argued that the wrongness of abortion does not automatically follow once we concede that fetuses enjoy a right to life. See, for instance, Thomson, Judith Jarvis, “A Defense of Abortion” (1971) 1 Phil. & Pub. Affairs 47.Google Scholar

71. Ronald Dworkin accurately summarizes the stalemate:

Is the human fetus a person from the moment of conception? That question has been argued by theologians and moral philosophers and ordinary people for many centuries. It cannot be resolved by legal research or scientific evidence or conceptual analysis; it will continue to divide people, as it divides Americans now, so long as deep disagreements remain about God and morals and metaphysics. “The Great Abortion Case” (June 27, 1989) 36 The New York Review of Books 49 at 49.

72. For the sake of argument I assign to this group the position that the only abortions the law should allow are those necessary to save the pregnant woman’s life.

73. Lawrence Tribe underscores the sexist nature of this deprivation:

While we might not impose selfless and virtuous behavior on a man—because it would be futile, perhaps, but more likely because it would demean his capacity for individual choice and independence—some may find it less of a contradiction to impose such virtue on a women because of the traditional view of her nature.

Tribe quickly marks the connection with dignity: “But to impose virtue on any person demeans that person’s individual worth. It is no more acceptable when the individual is a woman than a man.” Tribe, Abortion: The Clash of Absolutes (New York: W.W. Norton, 1990) at 135. Tribe’s point withstands the objection that carrying a fetus to term does not constitute virtuous behavior.

74. Severely restrictive abortion legislation is simply one more example of the sexist subordination that woman have had to endure and continue to struggle against in our society. How many years did it take before women were no longer classified under law as their husbands’ property? How many years did it take before they were given the right to vote? How many years will they have to wait before receiving economic justice? Justice Bertha Wilson is quite right, then, when she claims that the right to choose “…is properly perceived as an integral part of modern woman’s struggle to assert her dignity and worth as a human being.” See her concurring opinion in Morgentaler v. Regina, (1988) 1 S.C.R. 30 at 172.

75. Martha Field discusses this possibility in “Controlling the Woman to Protect the Fetus” (1989) 17 Law, Medicine, and Health Care 114. Incidentally, states which do imprison pregnant women for negligent or reckless behavior had better be prepared for lawsuits alleging the wrongful incarceration of fetuses!

76. As Dworkin writes, “The State can take action that affects it [the fetus]…only through its mother, and only through means that would necessarily restrict her freedom in ways no man or other woman’s freedom could constitutionally be limited”. See his “The Great Abortion Case”, supra, note 71 at 50.

77. Tribe correctly states that abortion is an option to which women of all times and places have resorted, with or without legal approval. His book Abortion: The Clash of Absolutes, supra, note 73, recounts in detail the calamitous history of illegal abortions. By the late 1960’s as many as 1.2 million women were seeking them. It is a horrible story of mutilation and death.

78. Roe v. Wade, (1973) 410 U.S. 113. The parenthetical addition is mine.

79. Ibid, at 159.

80. Ibid, at 162. The parenthetical addition is mine.

81. Ibid, at 153.

82. I have explained and defended the distinction between privacy and liberty in my “Privacy, Morality, and the Law” (1983) 12 Phil. & Pub. Affairs 269.

83. Here I am drawing on my earlier interpretation of “due process” in Section V. Recall the connection between due process violations and the arbitrary exercise of power.

84. See Tribe, supra, note 73 at 74.

85. Justice Jackson’s celebrated observation comes to mind:

…the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. West Virginia State Board of Education v. Barnette, (1943) 319 U.S. 624 at 638.

86. See his “Constitutional Adjudication and the Death Penalty: A View from the Court”, supra, note 1 at 330.

87. “The Constitution of the United States: Contemporary Ratification”, supra, note 1 at 13. Brennan confidently sets forth this view in most of the death penalty cases decided by the Court. See, for instance, his opinions in Furman, supra, note 1 and Gregg, supra, note 1.

88. Justice Douglas forcefully expresses my point with respect to the judicial application of the death penalty:

In a Nation committed to equal protection of the laws there is no permissible “caste” aspect of law enforcement. Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position. Furman, supra, note 1 at 255.

89. The troubling possibility that arbitrary disrespect for select groups of citizens does corrupt the death penalty’s application is given some support by the fact that in our capitalist culture the rich and the famous are rarely executed. The population on death row is nearly exhausted by citizens from the lower social strata, the very same people most frequently vilified for reasons having nothing to do with their behavior.

90. McCleskey v. Kemp, supra, note 1.

91. For more details on the methodology and conclusions of the Balbus study see, ibid. The study has received high praise from many distinguished researchers who have studied the application of statistics to legal problems. And it is consistent with substantial prior research. Randall Kennedy discusses these matters and the McCleskey case in “McCleskey v. Kemp: Law, Capital Punishment, and the Supreme Court” (1988) 101 Harvard L. Rev. 1388.

92. McCleskey, supra, note 1 at 286.

93. Ibid, at 278 and 289.

94. Ibid, at 321–22.

95. Ibid, at 336. Brennan would have expressed this important point about dignity more accurately and forcefully had he used the phrase “decisions based on disdain for race” instead of the more innocuous “decisions influenced by race.” The difference is important for appreciating the moral distinction between racist and racial discriminations.

96. Carter Stevens puts it this way:

…the juries that over time punish black people for killing white people far more harshly than black people who kill black people are making statements about the value of black lives. When black people kill white people, something has occurred that must be deterred, something has happened that must be condemned. When black people kill each other, however, deterrence is ignored and retribution is forgotten. When flexible juries use their discretion to impose the ultimate penalty, the lives of victims who happen to be black are simply worth less.

Unquestionably their lives are treated as worth less. See Stevens, , “When Victims Happen to be Black” (1988) 97 Yale Law Journal 420 at 444.Google Scholar

97. Bowers v. Hardwick, (1986) 478 U.S. 186.

98. Ibid, at 191.

99. Ibid, at 192 and 197.

100. Ibid, at 219.

101. Ibid, at 200.

102. Post v. Oklahoma, (1986) 715 At 2d 1105 at 1109 (Okl. Cr.).

103. Order 85–2071, 479 U.S. 890 (1986) at 890.

104. For a perceptive discussion of this matter see Karst’s, Kenneth “The Freedom of Intimate Association” (1990) 89 Yale Law Journal 624.Google Scholar

105. Bowers v. Hardwick, supra, note 97 at 218.

106. This is taken from Justice Brennan’s address at the Louis Marshall Award Dinner of the Jewish Theological Seminary of America, Nov. 15, 1964. It is cited in Stephen Friedman’s tribute to the Justice, (1966) 80 Harvard L. Rev. 7 at 22.