Happy the Elephant’s lawsuit against the Bronx Zoo is going to court. The elephant is the named plaintiff, represented by a lawyer committed to the advancement of rights of non-human entities.
In a nation founded on a creed of rights equally endowed in “all Men” (with “Men” presumed to be common usage for human persons) the question of legal personhood touches the core of national identity. The nation conceived itself in the Declaration of Independence, creating us as a “People” identified only as “We” who hold self-evident Truths, namely of unalienable rights equally endowed in all persons and that governments exist to secure those rights. The Constitution embodies our governing state, but does not define our nationality; in the Preamble it takes the voice of “We the People of the United States of America,” a nation already in existence. Our legitimacy rests on our validation of the idea that a nation conceived in personal rights can endure.
Political and legal disputes are generally over whose rights are violated, or whose should take precedence over another’s. Two political versions of this question are well known. One is whether corporate entities, as “legal persons,” have a right to contribute to political campaigns. Another is implied in abortion debate, in the question of when and if a fetus has life, and thus has rights that trump others’ choice to abort its gestation. A new possibility can be envisioned, whether artificial intelligence entities as they develop certain characteristics, might have rights. And Happy’s lawyers are part of a movement that asserts legal personhood for lakes and grasses as well as animals, as entities of nature.
Legal arguments can draw on the Constitution and perhaps common law traditions to approach the question of whether rights are violated. But those sources do not say much about what it is that makes something a who, possessing unalienable rights. Americans should give some thought to the question of personhood. In this we differ from other nations. Any person must also meet certain qualifications to be Spanish or Japanese or Eritrean. Most older nationalities are based on histories, mores, languages and other characteristics shared by particular groups of humans. Whatever the legal systems of those countries, their national personhoods specify particular features that a person must carry, to be of that nationality. Our national identity is not buffered from personhood by these qualifications.
Can elephants, lakes, software bots, or corporations be the same as human persons? The question of a fetus’ personhood is debated in well-known terms. Corporations have legal personhood for certain purposes due to a controversial view of the 1881 “Santa Clara v. Southern Pacific Railroad” Supreme Court case. The ongoing legal and political debate over the right to make political donations is well known, and may or may not open the door to further rights. To date, defenders of corporate personhood emphasize the business purposes of that status, so expansion seems unlikely. With the newer cases though, potential criteria are more open ended. With the growth of science and technology, and the expansion of people’s scope for actions and attitudes, any criteria can appear arbitrary.
The rights we hold as unalienable are of life, liberty, and the pursuit of happiness. Clearly we must promote and protect those rights for all persons. Could we go further and stipulate that to be a person an entity must be capable of pursuing some happiness? A major doubt arises in that slaveholding interests claimed that some people were not fully fledged persons – we certainly cannot qualify personhood for any biological human. Furthermore, we attribute a certain personhood to corporations, which do not have biological life. Further still, if an artificially intelligent bot develops volition, and can believe something independently of previous inputs or program outcomes, which is to say becomes capable of holding truths on faith, what separates it from any other “we” who holds America’s creed?
Whatever legal findings of personhood may follow from common law and Constitutional process, Americans face a different set of moral questions. It does seem likely that neither common law nor Constitution provide convincing guidance, in which case an American legal process would seem unlikely to confer personhood absent some American consensus. Any need for consensus could well pull any discussion into politics. This possibility is oxymoronic, unless and until Americans have a general recognition that we all share common ground. That common ground rests on our national founding, in the Declaration’s principled creed. To face questions and uncertainties that a new age will throw at us, that is our touchstone. Before asserting that we have an answer to such questions, we should check ourselves against this creed. Affirming our national base should come before winning a case. As to Happy, more people focusing on actual steps to ensure, or verity, the most humane treatment of the ill named elephant, we would affirm something about our use of our own freedoms.