A Constitutional Right to Dignity

The closest the Supreme Court has come to embracing the anti-humiliation principle is through its use of the term “dignity.” This link should be intuitive—what, after all, is the opposite of “humiliation” but “dignity”? Ackerman recognizes this nexus, but his discussion of it is tantalizingly brief.26 He acknowledges that the link between human dignity and the anti-humiliation principle may be unfamiliar to American constitutional lawyers, given that, in contrast to other jurisdictions, our constitutional traditions are built around the concepts of equality and liberty.

Warren was simply calling upon judges, and the rest of us, to make common-sense judgments about the prevailing meaning of social practices. One of the greatest legal thinkers of the era, Karl Llewellyn, persuasively argued that judges couldn’t decide the most humdrum case without relying on this capacity, which he famously called “situation-sense.”It was Louis Brandeis, not Thurgood Marshall, who first used social science to convince courts to consider the real-world impact of their doctrines. As early as 1908, the Supreme Court relied heavily on his famous “Brandeis Brief” in upholding maximum-hours laws for women. During the following decades, the law schools became centers of sociological and economic critique of the regnant legal formalism The Anti-Humiliation Principle and Same-Sex Marriage Kenji Yoshino