Washington Lawyer - November/December 2022 - 5

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ANIMAL PERSONHOOD
SUBVERTS WHAT IT MEANS
TO BE HUMAN
Patricia Guter's opinion piece, " Moving the Law
Forward: Personhood for Nonhuman Animals "
(May/June 2022 issue), makes the standard
pitch for extending legal " personhood " to
" nonhuman animals. " While her piece unfortunately
resorts to throwing around labels like
" mindless " and " archaic " and crediting opposition
only with " fear, " Guter does make some
arguments that merit a response.
First, stopping inhumane treatment of animals
is laudable, but that is not what " animal rights "
is about. As Guter concedes, " fighting for nonhuman
animal rights ... is not interchangeable
with animal welfare. " Rather, Guter and her
allies seek a radical transformation of the law:
treating animals as rights-bearing " persons. "
Second, unlike most people, animals cannot
speak for themselves. They cannot even select
their own counsel or have their next-of-kin
do so (or have a court appoint counsel at the
instance of a pro se request), which means
the very act of forced legal representation
runs contrary to their supposed " personhood. "
The animal " clients " necessarily will be vehicles
through which " their " legal advocates argue
for what those advocates think is best.
Third, while Guter lists the most sympathetic
animals - " great apes, elephants, dolphins,
and whales " - on what principle would personhood
be so limited? There is an obvious
line between human beings and nonhuman
animals. There is no obvious line between
dolphins, dogs, birds, turtles, and on down the
line to ... bacteria. Guter would call this the
" tired slippery slope argument, " but the slope
is especially slippery if there are no principled
or stable steps along it.
Fourth, if animals are persons, then human
beings are just one more animal. As Dash Parr
puts it in The Incredibles, saying everyone is
special is " another way of saying that no one is. "
Saying some or all animals are " persons " means
equating humans with those animals and thus
necessarily diluting - in fact discarding -
human uniqueness.
The habeas corpus litigation over Happy the
elephant, which Guter references, failed in New
York's highest state court, as it should have. If
Happy is being mistreated, it's time to refocus
on the existing remedies - animal cruelty laws
- rather than exploiting her plight fundamentally
to subvert the notion of human rights.
Walter Weber
Alexandria, Virginia
THERE'S MORE TO ISL
THEORY'S COMPLEX HISTORY
Richard Blaustein's article " Fringe No More?
Independent State Legislature Theory " (September/October
2022 issue) demands amplification
and correction.
McPherson v. Blacker (146 U.S. 1 (1892)) is hardly
" obscure. " It is seminal for its discussions on,
among other issues, the rise of choosing presidential
electors by popular vote, elector voting
by the unit rule, and the 14th Amendment's
sanction for limits on suffrage. It has been
consistently quoted or cited by the Supreme
Court, most recently in Bush v. Palm Beach
County Canvassing Board (531 U.S. 70 (2000)),
Bush v. Gore (531 U.S. 98 (2000)), and Chiafalo
v. Washington (140 S. Ct. 2316 (2020)). The
former decision, not discussed by Mr. Blaustein,
is highly relevant to the independent state legislature
doctrine issues.
Michael T. Morley's article " The Independent
State Legislature Doctrine, " 90 Fordham Law
Review 501 (2021), is current and more comprehensive
than his 2020 Georgia Law Review
article, but Mr. Blaustein does not cite it.
I would not call Professor Morley a champion
of the doctrine. His Fordham article concludes,
" Rather than viewing the doctrine as a unitary
whole, courts and commentators should
separately assess the validity of each potential
individual strand. "
For readers who wish to understand the complicated
history and complexity of the doctrine,
Morley is a good guide, Blaustein is not. Blaustein's
statement, " More than 100 years of
Supreme Court decisions have rejected ISL proponents'
interpretation of the Constitution " is
incorrect. The independent state legislature
doctrine is a major threat to popular election
of presidents. That at least four Supreme Court
justices voted to grant certiorari in Moore v.
Harper, the North Carolina gerrymander case,
is deeply troubling.
William Josephson
New York City, New York
MISSING COUNTER-PERSPECTIVES
I am an active D.C. Bar member in good
standing, and I wanted to comment on the
Sept ember/October 2022 issue of Washington
Lawyer. My dues go toward supporting this
publication; therefore, I feel it is important
I highlight some issues contained within the
magazine the editorial board may or may not
be aware of.
First, Richard Blaustein leaves out an invaluable
fact in his article discussing the rise of the independent
state legislature theory. As an election
lawyer, I find it incredibly disheartening to see
a reporter leave out a necessary fact when re -
port ing on Moore v. Harper to push a partisan
angle. In Moore, the North Carolina Supreme
Court did not just reject the legislature's congressional
maps; it prescribed and adopted its
own congressional maps. Any commonsense
lawyer would agree that it is a patent violation
of the Elections Clause, for " legislature " can in
no way be read to mean the judiciary.
The North Carolina Supreme Court has authority
to approve or deny maps submitted by
the legislature, but it cannot take it upon itself
to draw and adopt its own maps. In the event
that North Carolina statute permits the judiciary
to draft its own maps sua sponte, it is
unconstitutional under the Elections Clause
since this process excludes the state legislature.
But see Ariz. State Legislature v. Ariz. Ind. Redistricting
Comm., 576 U.S. 787 (2015) (allowing an independent
commission created by voter initiative
to draft redistricting maps since the
commission was created by a law-making
power of the people). Moore isn't some wild
Supreme Court case pushed by conservatives;
it's a basic separation of powers issue con -
trolled by the clear text of the Constitution's
Elections Clause.
As for the article " After Fall of Roe, Will LGBTQ
Rights Follow? " , John Murph advocates that
laws preventing biological men from competing
in women's sports are anti-LGBTQ and
should be opposed. But to allow biological
men to compete against women rolls back the
clock on Title IX and women's progress in athletics
in the past 50 years. See pages 6, 17-27,
31-34 of " Competition: Title IX, Male-Bodied
Athletes, and the Threat to Women's Sports, "
NOVEMBER/DECEMBER 2022
* WASHINGTON LAWYER 5
Washington Lawyer - November/December 2022

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