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GUEST COLUMN: Rights for a river? An effort to undermine democracy

By: Rob Natelson
October 8, 2017 Updated: October 8, 2017 at 4:05 am
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An environmental organization is asking a court to grant a river status as a "person" with the rights of personhood, thereby launching an attack on judicial fairness, the rule of law, and democracy.

The group is Deep Green Resistance, and it argues the Colorado River should have rights. On what reasonable basis Deep Green purports to know better than others what the river needs is anyone's guess.

How a judge would know better what the river needs than local users, lawmakers, and residents is another mystery. But observe this significant fact: The river has not actually filed the suit. Deep Green is doing the legal work.

Deep Green Resistance has to do the work because nonhumans can't prosecute lawsuits. Nor can animals, trees, or other entities for which pressure groups sometimes claim "rights." So what's really behind such suits? The unstated goal is to change the balance of power among humans - and to undermine democracy and the rule of law.

Suppose I convince a court to grant "rights" to the entity known as "the U.S. economy." The "rights" I convince the court to adopt include the right to prosper, grow, and flourish. Thereafter, a dispute arises over whether a tract of land should be developed. A developer representing the owner wants to put up a factory. A neighborhood organization claims the tract is a valuable wetland and, under state law, should be preserved.

In the ensuing lawsuit, each side has certain claims and privileges under existing law. But if the prospective developer can introduce "the economy" into the lawsuit along with its "rights to prosper, grow and flourish," then the developer has the neighbors at an unfair disadvantage from the start. All through the lawsuit, the neighbors will have to fight uphill.

With the sides flipped, that's what Deep Green wants to do: create a crooked system in which its opponents are always at a disadvantage.

Aside from its unfairness, there are two other negative effects that would be caused by granting "rights" to nonhumans.

First, skewing the courts to favor some people and disfavor others undermines public respect for the judiciary. People understand the courts are supposed to administer "equal justice under law," and they look at them suspiciously when the courts act unfairly.

Right now, the courts don't need more bad press; the public is already skeptical about judges because so many have ventured into policymaking.

Second, granting "rights" to nonhumans replaces democracy with oligarchy. When judges define the scope of an object's "rights," they are effectively making legislative policy. Legislators are democratically elected to make policy, but judges are not. Judges are chosen to administer the law, and they usually are either appointed or chosen in ways that severely restrict voter choices.

A good example of what not to do arises from the state of Montana. Although that state's courts have not created "rights" for things, they have used vague and undefined "rights" in the state constitution to engineer a massive policymaking transfer from the democratically elected branches of government to themselves. As a result, much policy is made by a judicial oligarchy rather than by elected officials.

Bottom line: Seeking "rights" for nonhumans is an authoritarian ploy to undercut democracy and the rule of law. The court should toss Deep Green's complaint. And it should assess costs against the group for bringing a frivolous lawsuit. If the court does not do so, Congress and state legislatures should move quickly with corrective legislation.

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Rob Natelson (think@heartland.org), a former constitutional law professor, serves as a senior fellow in constitutional jurisprudence at The Heartland Institute.

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