Last Thursday I died momentarily. I experienced V-tach or ventricular tachycardia which is a type of fast heart rate that arises from improper electrical activity in the heart. My heart short-circuited and was beating at 267 beats a minute. I was saved by the doctors getting my heart to beat correctly with a defibrillator. Now my mind is wandering about various implications of this experience. Clearly, the practice of law screws with your head because the first thing I wondered is why the doctors did what they did with the defibrillator. I mean if I was dead, I was not a person, right? Doctor’s only help “persons” so why help me? Fortunately, I had smart doctors who did not think like me and revived me.
That lead me to how does the law define what it is to be a “person.” How you define what a “person” is under the law is not an idle question given the headlines of today about sexual harassment by one person like Harvey Weinstein, Kevin Spacey, George H. W. Bush, Matt Lauer, Al Franken, Garrison Keillor, Louis C.K., Mark Halperin, Charlie Rose, Glenn Thrush who are all supposed to have engaged in sexual harassment of another person. But what is sexual harassment? I think sexual harassment is simple: it is a dignitary injury to the very person of another. Craven, Personhood: The Right to Be Let Alone, 1976 Duke L.J. 699, 701 (1976).
Thinking of harassment in this manner causes one to realize that harassment is simply an offense against the basic right to be left alone. Of course, the right to be left alone is a huge subject, implicating important constitutional interests relating to family life, procreation, and child rearing; areas of human experience which the Supreme Court has long held must be accorded special protection. Moore v. City of East Cleveland, 431 U.S. 494 (1977); Griswold v. Connecticut, 381 U.S. 479 (1965); Pierce v. Society of Sisters, 268 U.S. 510 (1924); Meyer v. Nebraska, 262 U.S. 390 (1923). The synergistic coupling between several Bill of Rights guarantees to create by the operation of all of them together a constitutional right not locatable upon any one of them. See Whalen v. Roe, 429 U.S. 589, 598-599 n. 23 (1977). This follows from the text of the Ninth Amendment itself: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Griswold v. Connecticut, 381 U.S. 479, 491-492 (Goldberg, J., concurring). Sexual harassment is simply an invasion of personal dignity. Ehrenreich, Dignity and Discrimination: Toward a Pluralistic Understanding of Workplace Harassment, 88 Geo. L.J. 1, 22-24 (1999).
In other words, we need to respect the personhood of each other.