Monkey Business
Animal Rights and Non-human Personhood
Last month, the Michigan Supreme Court declined to take up a case brought by the Nonhuman Rights Project, a non-profit organization dedicated to securing animal rights, which argued that seven chimpanzees held in the DeYoung Family Zoo are entitled to habeas corpus rights under the law.
Dissenting from the denial to hear the case was Justice Elizabeth M. Welch, who argued that the case was worthy of being heard by the court. Justice Welch advances several arguments that contend chimpanzees should be treated as legal persons entitled to habeas corpus rights. Ultimately, though, her invitation to possibly expand legal personhood to chimpanzees via the judicial branch system proves unconvincing.
To many readers, the question of whether an animal can have habeas corpus rights may seem intuitively ridiculous. The doctrine of non-human personhood is not, though. Citizens United is the prime example of this, holding that a corporation has free speech rights. Reliance on text is insufficient to settle a question of this nature. Rather, animal personhood fails the test, not of the text, but of American common law, history, and tradition.
A thorough evaluation of the common law tradition in the United States reveals that no animals have ever been afforded legal personhood. At the Founding, no one understood the Suspension Clause in Article I, Section 9 of the Constitution to extend to non-human animals. Instead, animals were treated, much as they are today, as property. While our attitudes toward animals have softened since, the only prominent view of them at the Founding was transactional. Horses pulled carriages, mules worked fields, and bovines were a common feature in meals.
At the same time, numerous artificial entities were recognized as persons. Corporations, such as the Massachusetts Bay Company and the East India Company, had personhood rights ranging from the ability to transfer property to entering into contracts. This contrast is illuminating. The Anglo-American tradition at the Founding did recognize that certain non-natural persons had legal personhood. Yet, animals continued to be treated as property rather than legal persons.
In her opinion, Welch challenges Blackstone’s definition of “property” and “dominion,” drawn from the Book of Genesis and relied on in part by the Court in its ruling. Welch even suggests that Blackstone should not be relied upon at all. “I question whether an eighteenth-century British jurist’s interpretation of the Book of Genesis is a sound foundation for Michigan common law in the twenty-first century,” Welch wrote. Even if one were to accept Welch’s reading, this would be irrelevant. It does not change as a matter of common law that animals have been treated as property. Setting Blackstone aside, historical practice alone is authoritative. Blackstone was merely stating the status quo.
Unsatisfied with dismissing her intellectual forebears, Welch submits that the case law relied on by the Court of Appeals - two Michigan Supreme Court decisions from the 19th-century - is not relevant because they only held that animals were property, not that animals do not have habeas corpus rights. The stretch made here requires an elasticity beyond what a fair student of the law can provide. By holding that animals have property status, those two decisions from the 1800s show that animals were not recognized as legal persons. That precludes them from claiming the Great Writ. Separating the right from personhood has no historical foundation.
Welch’s dissent correctly argues that the Court of Appeal’s “capacity to contract test” for personhood is flawed. Such a standard for establishing personhood would exclude individuals, including people with disabilities or those who are elderly. This observation does not establish the veracity of her argument, though. Under common law, natural personhood has been species-based, not competency-based. Therefore, the functional capacity argument is immaterial.
None of the foregoing information should be perceived as a defense for DeYoung Family Zoo’s treatment of the chimpanzees. The chimps are allegedly housed in two tiny cages and forced to take pictures with visitors. One of the chimps, Louie, has been isolated from the other chimps and shows signs of deep psychological stress. Ideally, these chimpanzees would be transferred to an accredited sanctuary or an Association of Zoos and Aquarium (AZA) accredited facility.
For those concerned with the plight of the animals, fear not. There are existing paths to provide avenues for the chimps to receive relief. Humans with a cognizable connection to these animals can seek relief through aesthetic standing. This has been recognized by the US Supreme Court numerous times, including in Sierra Club v. Morton (1972) and Lujan v. Defenders of Wildlife (1992). Additionally, proponents of animal rights remain free to lobby their legislatures for greater animal welfare protections - efforts that I would support. Or they could even convince their legislatures to enact legislation expanding standing that animals may have in courts.
Justice Welch may have poked some holes in the majority’s reasoning, but the substance of her dissent is beyond her role as a judge. There is no basis for judicially expanding the classification of persons beyond its original meaning. That belongs to the political branches. Efforts to push this change through the courts rely upon judicial activism, and should be called out by legal conservatives.
Blake Fox is a graduate of Wesleyan University, where he served as opinions editor of The Wesleyan Argus. He is an intern for SCOTUSblog and an executive litigation assistant for FIRE. He previously taught a college course on the U.S. Supreme Court, has conducted research in animal law, and covers the Supreme Court on TikTok.
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