I’ve been thinking a lot about human dignity lately. I am increasingly struck by how many of this country’s so-called leaders treat immigrants – particularly the undocumented ones (a.k.a. “illegal aliens”) – and it occurs to me that such hostility is borne not merely of ignorance, or fear, or a lack of empathy. What’s really shocking is the cavalier manner in which so many politicians, pundits, and even average Americans seem to regard immigrants as undeserving of human dignity.
Take, for example, Mitt Romney, the presumptive Republican presidential nominee. Romney recently secured the endorsement of Kris Kobach, author of Arizona’s S.B. 1070 anti-immigration law and a virulent and unapologetic immigrant-hater. Romney gushed:
I’m so proud to earn Kris’s support. Kris has been a true leader on securing our borders and stopping the flow of illegal immigration into this country. We need more conservative leaders like Kris willing to stand up for the rule of law. With Kris on the team, I look forward to working with him to take forceful steps to curtail illegal immigration and to support states like South Carolina and Arizona that are stepping forward to address this problem.
If Romney and Kobach and Dan Stein and Sheriff Joe and all the other immigrant bashers were to have their way, we would deny the country’s burgeoning immigrant population not just employment, or education, or healthcare, or opportunity – but simple human dignity.
John Rawls wrote:
Once the conception of justice is on hand … the ideas of respect and of human dignity can be given a more definite meaning. … [T]o respect persons is to recognize that they possess an inviolability founded on justice that even the welfare of society on the whole cannot override. It is to affirm that the loss of freedom for some is not made right by a greater welfare enjoyed by others.
My own philosophical mentor, the American pragmatist Richard Rorty, contemplated morality and humanity in terms of “human solidarity.” Rorty wrote:
The view I am offering says that there is such a thing as moral progress, and that this progress is indeed in the direction of greater human solidarity. But that solidarity is not thought of as recognition of a core self, the human essence, in all human beings. Rather, it is thought of as the ability to see more and more traditional differences (of tribe, religion, race, customs, and the like) as unimportant when compared with similarities with respect to pain and humiliation – the ability to think of people wildly different from ourselves as included in the range of “us.”
And I began thinking about how many Americans view this large (and growing) class of individuals in our society as “the Other,” as persons undeserving of compassion or respect. Yet, don’t we share a great number of similarities with these more recent arrivals to the American experiment? No matter how we got here, it seems we pretty much all desire the same things: a safe place to live and raise our families, the opportunity to work and earn a decent wage, the chance to send our kids to good schools so that they can aspire to – and even achieve – more than their parents, and also to be treated justly and with respect. In short, to be recognized as deserving of human dignity. Yet these shared similarities, which ought to unify us and help bridge the divide between the “been here for awhiles” and the “just recently arriveds,” are being drowned out by the shrill cries of “Different! Other! Illegal!” that we hear daily in stump speeches and on hate radio and from Fox News.
The national animosity isn’t reserved for the stereotypical law-breaking border-crosser, and it doesn’t appear much affected by how long a person may have lived here, how many of his family members reside in the U.S. (and how many of them are citizens or green card holders), what he has contributed through his labor (whether as a lettuce picker or a software engineer), how much he’s paid in taxes, or contributed to his community, or looked out for his neighbors. Unless his papers are in order and he has strictly adhered to our erratic and ill-conceived immigration laws, this person apparently doesn’t merit a shot at the American dream.
So is the kind of respect and solidarity that Rawls and Rorty advocated possible in the current political climate? Is it even conceivable? Can we, as a community of humans, tolerate and even embrace these wildly different “others”? I believe we can. Having reflected on it, I’m convinced that solidarity and treatment of our immigrants (even the “illegal” ones) with dignity is achievable in at least one realm of American society: the law.
Justice William J. Brennan referred to human dignity as “the basic premise upon which I build everything under the Constitution.” As he tirelessly battled against the death penalty and championed the rights of criminal defendants and prisoners, Brennan characterized “the dignity and worth of the individual” as the “supreme value of our American democracy.” Although the concept has enjoyed a decidedly less prominent role on the Court in recent years, none other than the resolutely moderate Justice Anthony Kennedy has taken up the cause, and has been described as the Court’s “leading invoker of human dignity.” Do we dare to hope for the concept’s return to prominence in the hands of recent additions like Justice Sonia Sotomayor, or Justice Elena Kagan, or possibly others whom President Obama will nominate during his second term? Might human dignity even inform the discourse in the Court’s looming immigration battlefront, particularly Arizona v. United States, which is set to be argued later this term?
Like Rorty, I believe that the greater our capacity to treat the Other (read “immigrants”) in our midst with dignity and compassion, the greater our human solidarity, and the stronger our democracy. Rorty urged, as a historical progression toward greater human solidarity,
the inclusion among “us” of the family in the next cave, then of the tribe across the river, then of the tribal confederation beyond the mountains, then of the unbelievers beyond the seas (and, perhaps last of all, of the menials who, all this time, have been doing our dirty work).
Sounds appealing, but how to accomplish such a lofty goal? I maintain that it has to be through the law. Unlike Justice Brennan, though, I don’t believe that restoring human dignity to a central role in the debate requires an appeal to the individual’s “essential dignity and humanity.” Rather, we can foster the dignified treatment of immigrants in the same way that, as a nation, we have struggled to overcome injustice and inequality based on race, gender, religion, sexual orientation, and so many other differences that have divided us: through the rule of law.
A search of Supreme Court jurisprudence turned up 64 references to “human dignity,” principally in cases involving the death penalty, prison conditions, and unreasonable search and seizure, but also in civil rights. In Heart of Atlanta Motel v. United States, Justice Goldberg affirmed that “[t]he primary purpose of the Civil Rights Act of 1964 … is the vindication of human dignity.” He denounced “the deprivation of human dignity” produced by racial discrimination, which he described as “the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color.” What about because of his immigration status? Just last term, in Ashcroft v. al-Kidd, Justice Ginsburg condemned the “brutal conditions” of Al-Kidd’s confinement in federal custody and declared the “need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.” For immigrants, these times are unquestionably perilous.
It’s time to introduce human dignity into the immigration debate. Though a vexingly difficult concept to define, it could prove a powerful organizing principle – one that appeals to our most deeply held values of justice, compassion, and respect for the individual. Might human dignity be a factor in the Supreme Court’s consideration of the pending immigration disputes? Time will tell. Regardless, I intend to incorporate the concept in my legal briefs, my courtroom arguments, and my discussions with allies and opponents alike. Because treating immigrants as deserving of human dignity, and vigorously opposing the wave of anti-immigrant laws and policies that are sweeping through the country, can only strengthen the republic.
-Thomas K. Ragland
 Rawls, A Theory of Justice, p. 513 (Harvard Univ. Press 1971).
 Contingency, Irony, and Solidarity, p. 192 (Cambridge Univ. Press 1989).
 Stern and Wermiel, Justice Brennan: Liberal Champion, p. 418 (Houghton Mifflin Harcourt 2010).
 Id. at 545.
 Id. at 418.
 Heart of Atlanta Motel v. United States, 379 U.S. 241, 291 (1964) (Goldberg, J., concurring).
 Id. at 291-292 (citing S. Rep. No. 872, 88th Cong., 2d Sess., 16).
 Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2089 (2011) (Ginsburg, J., concurring).