Tuesday, November 01, 2011

PETA, Orcas, Rights, and Persons

By Mike Dorf

At the risk of validating the stereotype that radical movements invariably degenerate into petty infighting, I'll begin by saying that if someone else hadn't beaten me to it, I'd be tempted to start an organization called Vegans Against PETA.  PETA's often sexist, always provocative campaigns seem designed mostly to generate publicity for PETA.  Its latest stunt is a lawsuit against SeaWorld on behalf of captive orcas.  The suit charges SeaWorld with holding the orcas in slavery or involuntary servitude in violation of the Thirteenth Amendment.  The suit could, in principle, call attention to the plight of captive orcas.  After all, the factual allegations of the complaint describe a miserable life for captive orcas made to live in a tiny fraction of the space they find in their natural enviroment and without access to the social groupings that define their life in the open ocean.  But by bringing a lawsuit rooted in the Thirteenth Amendment rather than directly pursuing a course of consumer education, PETA will likely offend millions of people and bring ridicule upon the causes PETA claims to champion.

Having said that, I cannot help but notice that the lawsuit raises an interesting constitutional question: Is the 13th Amendment limited to humans?  The complaint correctly observes that "Section One of the Thirteenth Amendment prohibits the conditions of slavery and involuntary servitude without regard to the identity of the victim and without reference to 'persons.'"  Applying what Akhil Amar has called "intra-textualism," we might therefore think that while only "persons" are entitled by the Fourteenth Amendment to due process and equal protection, slavery is forbidden for all beings capable of being enslaved.  Surely that was not the expectation of the framers: The Reconstruction Congress that framed the Thirteenth Amendment enslaved horses and other animals, after all.  But even most originalists these days profess to be bound by the original meaning of the words of the Constitution, not the original expected application of the Constitution.  And of course, constitutional law is not pervasively originalist, so that whatever the original understanding, we could imagine the Thirteenth Amendment now applying, consistent with its terms, to all instances of enslavement.

But this argument may do less to win rights for orcas than to discredit the notion that the Constitution should be read as though it were the infallible word of God, with hidden meanings buried in its subtlest linguistic juxtapositions.  After all, if we take PETA's textual claim seriously, then we have the following lists of rights that respectively are, and are not, restricted to people.

1) Rights that can only be exercised by persons or people: Freedom of assembly; keep and bear arms; freedom from unreasonable searches and seizures; grand jury; self-incrimination; due process; birthright citizenship; equal protection; privileges and immunities.

2) Rights that are not limited to people: Habeas corpus; no ex post facto laws; no bills of attainder; freedom of speech; free exercise of religion; no peacetime quartering of troops in the home; speedy trial; jury trial in criminal cases and civil actions at law; confrontation; compulsory process; counsel; excessive bail; cruel and unusual punishment; no slavery.

There is simply no rhyme or reason to this list, which leads me to think the conclusion unavoidable that the use or non-use of the word "person" or "people" to specify a right is entirely a stylistic matter.  Whether one takes an originalist or presentist view, the Constitution presupposes that only persons have rights.

That is not to say that one could not make an argument that some non-human animal species count as persons for purposes of some constitutional rights.  If artificial entities like corporations can be persons for constitutional purposes, then there is nothing absurd about the possibility that non-humans can be also.  But the analysis should turn on the function of the right and the capacity of the animal, not the accident of whether the particular right happens to be phrased in a manner that uses the word "person" or "people."

Finally, I should note that even if orcas were deemed persons for some constitutional purposes, the only right that could be asserted against SeaWorld on their behalf is the right against slavery, because SeaWorld is not a state actor, and all of the other rights only apply against the government