Dignity and Conflicts of Constitutional Values: The Case of Free Speech and Equal Protection

Abstract

'Dignity' can mean many things. In no sense is dignity itself a recognized constitutional right. But that hardly shows that dignity is constitutionally trivial. Dignity may help explain why we recognize constitutional rights in the first place. Dignity may also help explain the value and the scope and limits of constitutional rights. Of more immediately practical interest, dignity may help to fairly adjudicate between constitutional claims in conflict. This Article focuses on dignity in a fundamental sense as a value that can commensurate and fairly adjudicate between the often conflicting constitutional values of free speech and equal protection. As it turns out, the idea of dignity does not invariably push conflicts between free speech and equal protection toward the same resolution in every case. Dignity in the crucial sense can support or oppose the priority of either free speech or equal protection claims, depending upon the circumstances.