It's Debatable: Are intelligent animals entitled to Constitutional protections?
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In this week's "It's Debatable" segment, Rick Rosen and Charles Moster debate on the question: Are intelligent animals entitled to Constitutional protections? Rosen retired as a professor from the Texas Tech University School of Law and is a retired U.S. Army colonel. Moster is founder of the Moster Law Firm based in Lubbock with seven offices including Austin, Dallas, and Houston.
Moster - 1
In debating whether “intelligent animals” are entitled to Constitutional protections, it is important to note that it wasn’t all that long ago enslaved people in America were considered to be personal property with no more rights than a plow or wagon. This was made abundantly clear in the U.S. Supreme Court case of Dred Scott who sought his freedom and civil rights under the Constitution. In its 1857 decision, the Court held that Mr. Scott and all enslaved people lacked the legal standing to even bring their case for habeas corpus as they were not entitled to privileges and immunities under U.S. law. Of course, it took a Civil War and the ultimate passage of the 13th Amendment banning slavery to resolve this question.
The conundrum faced by the Supreme Court in Dred Scott likewise applies to the plight of intelligent animals which have been abused and forced to live a miserable and painful life in detention. Are they entitled to habeas corpus?
Let’s start with the most basic determination: Do animals display intelligence in the same way as human beings and thus entitled to legal protection? I will take an exceedingly conservative position here and limit the use of the term “intelligent” to those animals which either approximate or exceed human level cognition. For those readers who are unfamiliar with the prevailing research, dolphins and whales are considered to be on a par with our species when it comes to cognitive skills including the use of complex language, self-awareness, and – critically – the ability to feel strong feelings including pain and suffering which is the very definition of “sentience."
The brain of a bottlenose dolphin exceeds the neural capacity and volume our own. Behavioral studies going back decades also establish that these amazing creatures have developed a complex and nuanced language which is passed on to their offspring. Interestingly, advanced computers utilizing machine learning are now deciphering a “Roseta Stone” of sorts allowing for the conversion of high-pitched dolphin squeaks into words. True human-to-dolphin communication is literally around the corner.
That said, the test for sentience is the degree to which an animal (human, dolphin, or chimpanzee) can experience higher level emotions. Dolphins pass this test hands down. The major work in this area has been conducted by Italian researcher Giovani Bearzi who identified many instances of dolphins circling, nudging, and carrying the carcasses of deceased companions. Jason Daley, another prominent expert, recalled an incident in Washington state where shocked bystanders observed a killer whale “pushing around and nuzzling her dead calf for six hours, unwilling to abandon the body. Humpback whales have been heard crying mournfully when one of their companions is beached, and captive dolphins have been observed lying on the bottom of the pool, seemingly wracked with depression, after the death of a companion."
Notwithstanding the massive cognitive abilities of dolphins, there are no meaningful U.S. laws which protect them. Most states, including Texas, consider dolphins to be “wild animals” and excluded under civil and criminal laws. The federal government is no better having passed impotent legislation at best. The Marine Mammal Protection Act allows dolphins to be captured by outfits like SeaWorld, kept in tanks as small as 24 by 24 feet, and then put on public display. The only requirement is to offer the public educational information which is interspersed like an annoying commercial if you ever watched a SeaWorld dolphin show and its inane circus tricks. These animals are miserable.
Chimpanzees are also near the top of the cognitive food chain as observed by the brilliant Jane Goodall, who conducted the first detailed studies of these animals in the wild over decades. She determined that chimpanzees exhibit high-level intelligence, form tight communities, and even engage in warfare which is identical to our species (sorry to say). We also share an amazing 98.8 percent of the same DNA as our primate cousins.
And yet, chimpanzees are locked up in our neighborhood zoos and often in unsanitary and cramped conditions. A perfect example of this abuse is the tragic tale of Tommy the Chimpanzee, who was locked up in a small concrete cage in New York and never saw the light of day. Tommy was incredibly intelligent and definitely sentient. There were tears in his eyes.
His plight and fight for freedom were picked up by a legal non-profit which filed the first ever court proceeding in New York seeking a writ of habeas corpus to win his freedom. By a 5 – 0 vote, the N.Y. Court of Appeals let stand a prior ruling that chimpanzees are not persons, and it was up to the state legislature to decide the question. However, the court stated that the question as to whether these animals are entitled to habeas corpus to obtain freedom from detention touches on a “deep dilemma of ethics and policy” which must be addressed by our society. The court critically noted chimpanzees share at least 98 percent of their DNA with humans, and eminent primatologists have said the animals have advanced cognitive skills including the abilities to recognize themselves, remember, plan, imitate, exercise self-control, and display compassion and humor.
In my opinion, there is little difference between the plight of Dred Scott and Tommy the Chimpanzee. Chief Justice Taney who infamously declared in Dred Scott that enslaved people were personal property would have applied the same facts and law to an incarcerated chimp rotting to death in a concrete cage behind an abandoned trailer.
Dolphins, whales, and chimpanzees have the same suite of emotions as you and I and fit the exact definition of sentience with room to spare. Scientific research uniformly concludes that dolphins and whales have the same cognitive abilities as humans and probably a lot more. Chimps fall short on the cognitive scale but feel the identical emotions we do and share most of our DNA.
These amazing animals deserve full constitutional protections under U.S. law. I remain hopeful that a nonprofit somewhere will try again to free a chimp like Tommy, or the most recent dolphin captured by SeaWorld for exhibition and exploitation at its amusement parks. I predict that a state court with sufficient courage and compassion will hold that the most basic right of habeas corpus so applies. Of course, such a precedent setting ruling would be appealed to the U.S Supreme Court which would get to revisit Dred Scott.
Maybe they will get it right this time.
Rosen - 1
I agree that intelligent animals should be shielded from abuse, but the Constitution standing alone does not provide protection to non-humans. Congress may, however, enact laws affording animals statutory standing to assert their own rights under statutes protecting their interests.
First, the Constitution speaks of “persons” or “people,” obviously referring to human beings. For example, Section 1 of the Fourteenth Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And most of the Bill of Rights—the First, Second, Third, Fourth, Fifth, Ninth, and Tenth Amendments—refer to “the people.”
Second, I disagree with Charles’ assertion that the Supreme Court’s decision in Dred Scott v. Sandford is connected to the asserted plight of intelligent animals.
Undoubtedly the worst decision to come out of the Supreme Court, Dred Scott dealt with humans to whom the Constitution exclusively applies.
Third, the courts have refused to recognize animals as having constitutional standing to sue to protect their interests. For example, in Cetacean Community v. Bush (2004), attorneys claimed to represent the world’s whales, dolphins, and porpoises in a lawsuit challenging the Navy’s use of certain active sonar as violating various environmental laws. The Court of Appeals for the 9th Circuit held that the animals lacked standing to sue because they were not “persons,” but inti-mated that Congress could give them that right. Fourteen years later, in Naruto v. Slater (2018), the same court held that a monkey had no standing to sue for infringement of “selfies” it took under the Copyright Act.
Fourth, Congress may be able to afford animals standing to enforce federal statutes intended to protect them. Professor Cass Sunstein of Harvard University wrote in 2000: “Congress has the authority to grant animals standing to protect their interests, in the sense that injured animals might be counted as juridical persons, to be protected by human plaintiffs initiating proceedings on their behalf.” Albeit not constitutional protections, this is the only route to provide intelligent animals the safeguards Charles wants.
Moster – 2
As to Rick's first point, I agree that the Constitution speaks to “people” as being the repository of rights. That was the entire point behind the Dred Scott case wherein the Court determined that Mr. Scott was not a “person” for the purposes of maintaining any rights under the Constitution, including the very right to bring an action.
This precise issue is raised in my argument as to why intelligent animals should be accorded the very rights denied to Dred Scott as he was not granted the dignity and status of a “person” notwithstanding his intelligence. As horrific as it sounds in 2024, enslaved people were not deemed to be “people” but “property,” which is the same dilemma confronting intelligent animals. Whether we are discussing dolphins, whales, or non-human primates, they are singularly non-persons and the property of the owner including cruel and money hungry entertainment venues such as SeaWorld. The legal issues are precisely the same.
Rick’s other points are subsets of the above. He is correct that Dred Scott is not connected overtly with the plight of intelligent animals, but their status as “non-persons” is the identical question wrongly decided by the court in Dred Scott.
Rick is also sadly correct that every attempt to seek protection of these intelligent animals has been met with challenges to their very right to bring an action which is known as legal standing. Again, that is the point of this debate. Hopefully, a court will courageously determine that these marvelous sentient creatures should be granted the same dignity and legal standing initially denied to enslaved people under the same flawed rationale. They cannot be deemed property.
Finally, although Congress can expressly grant constitutional rights to intelligent animals, that is not the exclusive route. As stated above, this is a perfect case to bring before any court with reference to the history of Dred Scott and the pain endured as a consequence of failing to heed the most basic rights accorded to all intelligent and sentient creatures.
Rosen – 2
The Constitution establishes a government of the people and protects the rights of people. As its Preamble states: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The Constitution’s protections may also extend to organizations created by people, like corporations and labor unions, but it is always inextricably intertwined with people or persons—human beings and not animals.
I recognize that some have argued the term “persons” or “people” is simply a social construct that can also be interpreted to encompass non-humans. Perhaps that is true in a “perfect (or fantasy) world,” but it is unmistakably not what the Constitution’s framers or those who followed intended. The 13th Amendment eradicated the abomination of human slavery; it did not fashion rights for non-humans.
Unlike courts interpreting the Constitution, Congress has the power to enact legislation protecting animals from cruelty and mistreatment; indeed, it should and, to some extent, it has. In 2001, Professor Lawrence Tribe of Harvard University wrote: “Just as the Constitution itself recognizes the full equality of what it calls natural born citizens with naturalized citizens, who acquire that status by virtue of Congressional enactment, so the possible dependence of the legal personhood of non-human animals on the enactment of suitable statutory measures need not be cause to denigrate the moral significance and gravity of that sort of personhood.”
Standing alone, the Constitution simply does not afford rights to non-humans. In a constitutional republic in which powers are separated, the authority to safeguard non-humans rests with popularly elected legislatures and not the courts. Ultimately, the people decide whether to extend constitutional-like protections to non-humans.
This article originally appeared on Lubbock Avalanche-Journal: It's Debatable: can intelligent animals have Constitutional protections?
