The Colorado Supreme Court has unanimously rejected an appeal by the Nonhuman Rights Project seeking to reverse a lower court’s decision holding that people could not seek writs of habeas corpus on behalf of elephants. The key question was whether an elephant is a “person,” and the court said that of course an elephant is not a person, both in light of Colorado’s statutory definition of the word and the accepted everyday meaning. The NhRP encouraged the court to look to the common law rather than Colorado statutory law, but the court observed that the only support in the precedents for the NhRP’s quixotic view is a concurrence in one case and two dissenting opinions in others. “Simply put, no Colorado court, nor any other court in any other jurisdiction in the United States has ever recognized the legal ‘personhood’ of any nonhuman species.”

The court went on to point out that the NhRP wasn’t actually seeking the relief that habeas corpus is all about—freedom from confinement. It was instead seeking an order transferring the elephants to a different confinement that the NhRP thought preferable.

Rather than repeat the things I’ve said about similar cases (you can read my archive of coverage here), I wanted to tie this case and the issue it raises to an important case just brought here in Boston by more than a dozen states against the federal government. President Trump issued an executive order on his first day in office that asserts that a person born in the United States is not a United States citizen by virtue of birth here “(1) when that person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth, or (2) when that person’s mother’s presence in the United States was lawful but temporary, and the person’s father was not a United States citizen or lawful permanent resident at the time of said person’s birth.”¹I don’t discuss here the oddities of the definition, or the strange provision in the order stating that it only applies “to persons who are born within the United States after 30 days from the date of this order.” This despite the text of the Fourteenth Amendment to the US Constitution, which provides:

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.

The language seems crystal clear, and it is in accord with the traditional American use of jus soli rather than jus sanguinis to decide who is and is not a citizen, as well as the precedents.²Here I mean “American” to refer to the USA but also to refer to the Western Hemisphere, which, unlike most of the rest of the world, almost universally follows jus soli.

“But wait!” some smart people eager to please the President say. “You are only a citizen by birth if you are ‘subject to the jurisdiction’ of the United States. Let us find a way to argue that people born in the United States to mothers in the country illegally, or even mothers in the country legally in some circumstances, are not ‘subject to the jurisdiction’ of the United States.”

But what kind of legerdemain would you need to do in order to argue that a person whose mother is in the country illegally, or whose mother is in the country illegally but whose father is not a US citizen or permanent resident, is not subject to the jurisdiction of the United States? There are some people who fit within the constitutional exception, notably the children of foreign diplomats, who have immunity from jurisdiction. The Supreme Court has also suggested that “children born of alien enemies in hostile occupation” could fall within the constitutional exception. So, for example, if the United States were at war with Mexico, and if Mexico were occupying part of the country’s territory, and if Mexican citizens had a child in the occupied territory, that child would not be an American citizen by birth.

So now those smart people eager to please the President are in the position of saying, with as straight a face as they can muster, that the United States has been invaded, or is being occupied, in order to persuade a judge to do the President’s bidding on this important question of constitutional law.

We have two cases. In one, a lawyer argues that an elephant is entitled to habeas corpus because “elephants are persons.” In the other, a lawyer argues (or will argue) that a mother in the United States illegally who has a child here is not “subject to the jurisdiction of the United States.” How are these alike, and how are they different?

They are alike in their absurdity. They are both, in my opinion, arguments that don’t pass the laugh test.

But they are unalike in important ways. First, they are unalike in their aims. The NhRP is engaged in a ridiculous but well-intentioned effort to improve elephant welfare, and if they have to trample logic, precedent, and the English language to do it, well, damn the torpedoes. The President is seeking to undermine a basic part of the constitutional order. They are also unalike in the incentives for lawyers. What do you get if you are willing to pursue an elephant habeas case? Maybe an appointment at a fancy law school animal rights clinic and a roving commission to file elephant habeas cases around the country forever on your donors’ dime. What do you get if you are willing to defend the President’s executive order, or if you are a judge ? You get access to real state power, or for judges, maybe the prospect of appointment to a higher court. That is very heady stuff.

I don’t think there is anything we can do to persuade lawyers not to bring elephant habeas cases. I think the folks who bring the cases are true believers in an obviously wrong view of the law who aren’t getting rich or powerful from doing what they’re doing. But I do think that we as a profession can try to persuade lawyers not to make the outlandish claims that you’d have to make to defend the President’s order. Of course, the lawyers seeking to enjoin enforcement of the order have to treat the matter super-seriously in court. But those of us who are observers can also try mocking the absurdity of the arguments and appealing to lawyers and judges to have some self-respect. Self-respect is an underrated virtue in professional life as in politics and in business. We could use some more of it.

• 1
  I don’t discuss here the oddities of the definition, or the strange provision in the order stating that it only applies “to persons who are born within the United States after 30 days from the date of this order.”
• 2
  Here I mean “American” to refer to the USA but also to refer to the Western Hemisphere, which, unlike most of the rest of the world, almost universally follows jus soli.