Thursday, April 25

Monkeying Around with the Constitution

Respected Harvard Constitutional Law Prof. Larry Tribe (he argued one of the Bush v. Gore cases before the Supreme Court, for Gore) has expressed the view that the Constitution grants "nonhuman animals" such as chimpanzees rights as "persons" under the Constitution. He articulates his position, hitherto only advocated by fringe PETA-types on Law School Campuses, on the front page of this morning's Wall Street Journal (subscription required to read the full story). Specifically, he says that the 13th Amendment's prohibition of slavery and the 8th Amendment's prohibition of "cruel and unusual" punishments should apply equally to chimps and humans because "nowhere does it state that only humans are covered [in these Amendments]"

There too many problems with Professor Tribe's position to address them all in the short time I have, but I will offer one of the most important ones. Just because something is not explicitly spelled out in a law does not mean that the law does not have a single, fixed and correct interpretation. Saying that the 13th Amendment generally bars "slavery" does not support a conclusion that the Amendment should be interpreted to apply to the "enslavement" of animals. If the rule of law means anything, it means that the laws have static definitions that are not subject to later reinterpretation in light of changing patterns of language use. There is no doubt that the drafters of the 13th Amendment, and anyone reading it at the time of its enactment, understood slavery only in terms of one man's forciable subjugation of another man. That animal ownership or the use of animals as sources of food and entertainment was considered to be an entirely different phenomenon than real "slavery" in the minds of 19th Century Americans can easily be demonstrated by looking at the way in which they talked about and treated animals at the very same time that they were debating the separate issue of slavery. To say that because a small cadre of animal rights radicals use the term "slavery" today to apply to the condition of animals kept by humans means that their usage of the word should supplant that of the drafters of the 13th Amendment and the society in which they lived is absurd. The underlying meanings of laws change only when they are formally changed by elected bodies or, in the case of the Constitution, by the amendment process spelled out in Article 5. Nobody can, with a straight face, deny that the 13th Amendment was, at the time it was enacted, understood to end the practice of humans treating other humans as chattel and only that practice. To suggest that the 13th Amendment should be applied to chimpanzees or any other animal therefore amounts to an illegitimate amendment of the constitution.

Besides, if "slavery" means only what the furthest edge of the radical wedge thinks it means, then what is to stop some activists from claiming that the 13th Amendment should also apply to dogs, gerbils, trees or flowers? There are, of course, responses to this sort of slippery slope argument, but their hollowness in this case is betrayed by the fact that they are the same arguments that would have been employed to end the slope at humans, before it reached other primates, scant decades ago.

UPDATE: Now that this post has been linked to by the Almighty, er, InstaPundit, I'm sure that reams of comments will flood in to both myself and InstaPundit refuting my point, castigating the legal system, and generally spitting calumny in my (virtual) direction. Fair enough. I asked for it by starting a narcisite (I prefer the term to "'blog" and think it is more mellifluous than "vanity site") in the first place. However, I would like to clarify two things.

First, I agree with InstaPundit's incisive comment regarding the inability of chimps to sue lawyers for malpractice. The natural consequence of this situation would be a court-appointed lawyer for the chimp's malpractice claim suing the court-appointed lawyer for the initial claim. Top that, Fox TV.

Second, I am fully aware that my assumptions about our legal system being based on a rule of law in the way I described a "rule of law" (i.e., in textualist, "original meaning" terms) are far from universally accepted in the looking-glass world of legal scholarship, particularly within the unrepentant neo-Marxist camps that currently hold sway in many elite law schools. I know, I attend one, and that's part of my point. I began by identifying Professor Tribe as a respected legal scholar and I realize that his opinions carry great weight in the groves of legal academe; he is probably on more Democratic shortlists for the Supreme Court than any other academic. These things are all true. It is also true, however, that his proposal in this article is laughable and intellectually bankrupt. Even very intelligent people believe some pretty outrageous things. If you don't believe me, go to law school.

UPDATE II: Having just read UCLA Law Professor Eugene Volokh's new article on The Mechanisms of the Slippery Slope (forthcoming in the Harvard Law Review--not too shabby!) I would like to backpedal a bit on my suggestion that the same arguments could be applied to dogs, gerbils, trees, flowers, etc. But dolphins and whales could still covered by the rapidly expanding Constitutional penumbra that is visible only to Prof. Tribe. Thanks to Professor Volokh, we are forever foreclosed from couching our objections in the imprecise metaphor of the slippery slope without identifying the precise mechanism(s) that we fear will lead from decision A to possible consequence B. In this case, I don't feel compelled to dwell at any length on the specific mechanism that might lead to applying Constitutional protection to whales or dolphins because I actually object to decision A (granting such rights to chimps) on its own terms. However, if Prof. Tribe's reason for granting chimps rights is that a grown chimp is as mentally developed as a four-year-old human child, who clearly has constitutional rights, then I believe that the same argument could be applied to an adult dolphin, which I believe stacks up well in the grey matter department against a young child. It is also possible to push back Prof. Tribe's arbitrary choice of a four-year-old child to a one-day-old child, who also has constitutional rights, and whose intellectual and emotional development would not compare favorably with fully grown animals of many other species.