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What if democracy could, to quote former Supreme Court Justice William O. Douglas, “sue for its own preservation?”
Stick with me. This is a short column. The idea’s not as crazy as it may first sound.
Lawyers file lawsuits.
Most of their clients are adult people, specifically Homo sapiens — a species in which lawyers also claim membership. But not all clients are people.
The creative minds of Roman lawyers, 40 or 50 years before Christ would have had an opportunity to stop them, conceived and gave birth to one of today’s lawyers’ most lucrative source of clients: “corporations.”
You can’t invite one to dinner. They’re only figments of lawyers’ imaginations, non-human and occasionally inhuman.
Yet the nine Supremes invite these zombies into their Court and treat them as legal persons. The court has even ruled corporations’ political contributions can metamorphose into First Amendment-protected “speech.”
Admiralty law, from Roman times to the present, treats ships as legal persons.
Young children, unlikely to contact lawyers, are legal persons.
Zoologists classify us as mammals — in a subgroup identified as the Great Apes. So it’s only logical that other species, despite animals’ apprehension regarding lawyers, have been granted legal person status.
The Iowa Code, Section 717B.3, gives animals the legal right to good nutrition; plenty of clean water; sanitary conditions; a shelter with bedding and protection from wind, rain, snow sun, cold and dampness; and. professional health care.
That list would be a good starting place for what we should guarantee our species — and the UN’s Universal Declaration of Human Rights agrees.
While clerking for Supreme Court Justice Hugo Black I learned of Justice Douglas’ love of nature from conversation, his books and short group walks along the C & O Canal. Years later he advanced the notion of environmental personhood in his opinion in the Sierra Club case, citing Christopher D. Stone’s article (now book), "Should Trees Have Standing — Toward Legal Rights for Natural Objects," a law review article of mine, and many other sources.
Noting that corporations and ships get legal person status he argued that “environmental objects” should receive no less. They should be able to “sue for their own preservation.”
Why not? If lawyers can create corporate legal persons out of vapor why not our more tangible bodies of water? Two rivers in India, a mountain and river in New Zealand, and more in Bolivia, Columbia and Ecuador enjoy environmental personhood.
Iowa, of all states, has an economic as well as moral interest in giving our land, rivers and lakes the right to “sue for their own preservation.”
How about our “democracy?” It’s more real and deserving of the legal right to protect itself than corporations. It requires educated citizens with voting rights, and judges and journalists with independence and integrity. Refusals to accept election results, cutting schools’ budgets, or saying media are “the enemy of the people” are attacks on democracy itself.
It’s long past time we grant democracy the right to “sue for its own preservation.”
Nicholas Johnson of Iowa City is the author of “Columns of Democracy.” firstname.lastname@example.org