Human Rights, Animal Rights, and Friends of the Earth; S. Petro

They do no one any harm and may even do some good. For still another class of human beings, the response to uneasiness, the desire for some je ne sais quoi, is categorically different. It expresses itself in aggression: physical assault, theft, domina tion. There are also (at least) two varieties of aggression: overt and covert, violence or fraud, work-the-con-yourself or get-the-Iegislature-to do-it-for-you-while-pretending-to-serve-the-com mon-good. The covertly aggressive spirit is widespread among human beings. There is a little larceny in all of us, it is said. In consequence whereof the wrong headedness of our governments, and especially of the Congress of the United States, is an across-the board phenomenon. Yet, nowhere is the clash between government and society more odious and insidious than in the Endangered Species Act. This Act provides for the expropriation, sequestration, Mr. Petro is Director of The Institute for Law and Policy Analysis, Winston-Salem, North Carolina, and Trustee Emeritus of FEE.

or in some cases confiscation of property if its nor mal human use would risk the extinction of an "endangered species." Thus, in the news recently we read that the gov ernment has banned logging for human purposes of thousands of forested acres, in order to save the spotted owl, allegedly because it faces extinction. Again, the U.S. Fish and Wildlife Service is proposing to prevent developers from building houses (for human residence) on miles of Califor nia coast because the California coastal gnatcatch er fancies it as a hunting ground and might just possibly become extinct if the builders try to alle viate housing conditions for human beings on that stretch of land. And then there is the cataclysmic case of the kangaroo rat. As reported in a Wall StreetJournal editorial (September 4, 1991),"The Stevens kanga roo rat recently became one of the largest 'land owners' in California when a 30-square-mile stretch of land worth $100million was declared off limits to development in order to protect the rat."

The editorial continues: "Nancy Kaufman, a Fish and Wildlife Service official, defended the move by saying that humans have reached the limit on how far they can intrude on the environ ment. We guess that means a lot of people in the future willhave to double up in apartments Soviet style. Ms. Kaufman isn't all that concerned about human habitats: 'I'm not required by law to ana lyze the housing-price aspect for the average Cali fornian. '"

But what of the loss of $100 million in land to Californians who already pay more for housing than just about anyone else in the country? "TheRightsof Animals" The Endangered Species Act is advanced and defended on one or another version of the con tention that "animals, too, have rights." This notion is supposed to justify the enormous costs and other burdens that the environmental and ecological programs impose, especially on the poor and the underprivileged-the people for whom, unlike most of the members of the Sierra Club and the Audubon Society,pennies count. Making any kind of sense of the animal-rights idea-moral, social, economic, or juridical-is impossible. After all is said and done, animals are not and cannot be parties in any intelligible sense in these affairs. Animals are physically capable of doing many kinds of harm to human beings, but they are incapable of expropriating them. Human beings can be expropriated only by other human beings. In the Endangered Species Act as admin istered by such secure human beings as Ms. Kauf man, what we have is environmentalist zealots imposing their will,by way of a perverted govern ment, on the rest of the people. It may not be common theft, but that is only because it is so uncommon an enormity, resting on one of the deadliest beliefs of our times, the belief that paper laws legitimize theft.

It is true that our legislatures are elected and that the laws they pass, when constitutionally valid, are binding on the people. At the extreme limits, however, the power of Congress extends only to laws that provide for the general welfare, and the notion that the term "general welfare" in the Preamble of the Constitution of the United States includes the welfare of endangered wildani mals is absurd. Endorsement by the Supreme Court of unconstitutional legislation, I would add, does not change the Constitution. The Constitu tion is not whatever the Supreme Court may choose to say it is. There is a constitutionally dic tated amendment process which does not include amendment by the Supreme Court at all, or even by Congress merely by legislation. The analysis doesn't change if we engage the anomaly, "animal rights," in serious legal analysis, 119 instead of dismissing it out-of-hand as a theft and a fraud, a scam by the idle rich and the idle well-to~ do in order to preserve the earth as a plaything, a place to dally in. We must insist at the outset, how ever, that it is an anomaly.For wild animals do and can do nothing to create the entitlements called moral, juridical, or socialrights. Rational exchange with them is out of the question. They are "free spirits"-or, better yet, free loaders, moochers on Mother Nature's generosity and on the virtuous laboriousness of the only children who have ever reciprocated the generosity of the divine Earth Mother-human beings.

Wild animals exploit the earth, love it and leave it, despoil and befoul it. That is all they have ever done, eon after eon, and all they will ever do-unchanging, unceasing exploitation. Beavers build dams, chopping down trees to do so. But has anyone ever seen a beaver plant a tree? Weyer haeuser plants dozens for every one it cuts. I have planted quite a few myself, by the way. Wild animals can never earn rights, but human beings can. If my neighbor takes my land or tries to force me to do with it what he wants rather than what I want, I can go to a court of equity and get an injunction to stop his encroachment on my rights. He and I both have duties vis-a-viseach oth er, as well as rights. He can enjoin me from using my land in a way that denies him the normal use of his land, as I have the power to do conversely.The great formula of Roman law, sic utere tuo ut alienum non laedas, [use your own property in such a manner as not to injure that of another] rules in inter-human disputes. But no court will help me when rabbits nibble my lettuce, birds punch holes in my tomatoes just as they ripen, and huge, ugly ants do away with my figs before I can enjoy the fruits of my efforts.

On what rational grounds, then, can people talk about "animal rights"? And yet there is such crazy talk. No wonder we put businessmen in jail while we turn thieves and crooks loose because they are "victims of society." The same twisted logic is at work there. I know that some human beings have been pure exploiters in some of their relationships with the good earth, mother of us all. However, the wanton exploitation we all deplore has occurred mainly in primitive pre-capitalist society and conditions. Over time, as man has advanced along with the growth of private property rights, of capitalism, 120 THE FREEMAN • MARCH 1992 and of free markets, human beings have tended more and more to care for the land, to coddle, even to embellish it. It is not mere legalese which describes home, barn, and fence as real property "improvement. " Fanatical environmentalists and hypochondri acal ecology zealots (ecocondriacs?) do their fel lowmen a grave injustice in accusing them of maltreatment of the earth, and they are pro foundly stupid and insensitive in failing to under stand that the best friend the environment has ever had has been the right of private property.