State, Means, and Ends

I am auditing Jeremy Waldron’s seminar on human dignity this semester. Since prof. Waldron’s rule is that auditors “must be seen but not heard” in class, I will use the blog as an outlet for thoughts and comments.

One thing we did in yesterday’s seminar was to go through the rights-protecting amendments to the U.S. Constitution and look for ways in which they can be said to rely on or further dignitarian ideas. It’s an interesting exercise, because it highlights the variety of these ideas, and shows how specific rights are connected to some of them, but not others. For example, dignity is associated with autonomy or self-direction, and the First Amendment’s protection of the “free exercise” of religion can be read as upholding that autonomy. Dignity is also associated with (high-status) equality, and the guarantee of the “equal protection of the laws” in the 14th amendment, or voting equality in the 15th and the 19th are related to that strand in the dignitarian thought. (Of course, a right can be related  to more than one facet of the concept of dignity. For example, the prohibition of slavery in the 13th amendment is related both to autonomy and to equality.)

Now there was, as I remember it, a single section of the Bill of Rights for which no one, apparently, seemed able to come up with a dignitarian explanation: the Third Amendment, which prohibits the quartering of troops in private houses in peacetime without the consent of the owner. But I think that it can actually be related to one familiar dignitarian idea: Kant’s injunction against treating persons as means to an end rather than as ends in themselves. When the government, without your consent, uses your house as improvised barracks, it treats your expense of time and/or money on building or buying and keeping up the house as means to its own ends.

The Bill of Rights contains other rights related to the same sense of dignity, notably in the Fifth Amendment, which includes protections against the taking of private property by the state without compensation and against compelled self-incrimination. (Arguably, the Canadian Charter of Rights and Freedoms is rather less protective of this aspect of dignity, but it also includes a protection against compelled self-incrimination.) Yet in other ways the U.S. Constitution (as well as the Charter) countenances and arguably even requires the use of citizens as means to the government’s ends. It does not prevent the draft, for example. It also protects the right to jury trials, which means that the state must conscript citizens to serve as jury members.

I wonder what to make of this contradiction. Is it even a contradiction, or is there some broader principle, or some distinction, that I am missing? If it is, is it wrong? Can or should we do things differently? Your thoughts are very welcome.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

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