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Civil Rights

How Natural are Arbitrary Rights Now?

— April 11, 2022

Truly natural rights wouldn’t be subject to cancellation by governments, armies or circumstance, which is how you know ours are merely arbitrary.

We live in interesting times when it comes to rights. Developments around the world and here in the United States are dramatically changing what people can expect for the future of these aspects of freedom we may take for granted, or even think of as being “natural.” Are arbitrary rights natural, however, when they can clearly be so easily violated, edited, granted or removed altogether by (mostly) governments that may or may not fairly represent you?

During Justice Ketanji Brown Jackson’s confirmation hearings, lines of questioning from certain Senators (rants, really) revealed just how deeply the “conservative” Right would like to claw back apparently arbitrary rights which, until that moment, most Americans considered to be settled law. Certain of us speculated that culture war activists would be taking aim not only at Roe v Wade and Obergefell v Hodges, the case which legalized same-sex marriage nationwide, but also Griswold v Connecticut, which guaranteed married couples the right to use contraceptives. And so they have.

A smiling, seated woman in a black robe.
Official portrait of Judge Ketanji Brown Jackson. Photo by H2rty, courtesy of Wikimedia Commons. CC BY-SA 4.0

However, did anyone outside the fetid Right-wing swamp expect Senator Mike Braun (R-IN) to drag Loving v Virginia into the KBJ fight, calling into question the future of legal interracial marriage altogether? If the Constitution does not, in fact, imply a right to privacy, once considered inherent in the Fourth Amendment’s guarantee of security in our home and effects and against unreasonable search and seizure, the Third’s prohibition against quartering troops, and the Ninth’s admission that we have other rights not necessarily listed, then everything beyond the bare statutory minimum allotted to us in 1791 are arbitrary rights and should be considered subject to the ideological whims of such luminaries as Marjorie Taylor Greene, Lauren Boebert, Matt Gaetz and Madison Cawthorn. This should alarm you more than the 2A crowd is wary of President Biden, because these folks might actually do something about it, unlike Scranton Joe.

If there are dark days ahead in the U.S., that darkness has already covered Ukraine and its Russian invaders. Putin’s withdrawal of Russian forces from around Kyiv is leaving behind not only deliberately destroyed homes, itself a war crime, but also piles of tangled and tortured Ukrainian corpses. Executed civilians were tossed in officially approved mass graves (the technical standard for digging and maintaining them took effect on February 1, 2022), mangled teenagers with sliced-off ears and extracted teeth, left to rot in a Bucha basement, and individual bodies on the street, booby-trapped with anti-personnel mines so that those who collected them for decent burial would catch the shrapnel in their flesh. Rights are not a concept Russian attackers observe, clearly.

To cover up their abuses in Ukraine, the Russian government is actively limiting the rights of their own citizens as well. Hearkening back to the old Soviet playbook, criticism of the ongoing invasion, of Russian armed forces, or even claiming that Ukraine is a sovereign country can get you fined or jailed, turned in by an increasingly paranoid citizenry. Students record teachers for later betrayal. Diners report conversations from the next table over. Carrying a protest sign that merely displayed eight asterisks resulted in a run-in with the law for one Russian man. (The Russian phrase “Нет войне,” or “No to War,” has eight letters.) Last Friday, Russia forced Human Rights Watch, Amnesty International, and several other NGOs to close their offices. Arbitrary rights can be taken away. Being observed doing so is awkward.

However, all is not lost, and in some places, it’s getting better.

Arbitrary rights can be lost, but the beautiful thing is that they can also be granted. In February, a 7-to-2 court ruling confirmed that, at least in Ecuador, individual wild animals have constitutional rights. The case involved Estrellita, a woolly monkey who was illegally taken from the wild at one month old and adopted by a librarian and her family. Estrellita learned to communicate with them through sound and gestures, and picked up on the family’s behaviors. Eighteen years later, she was seized by authorities and placed in a zoo, where she soon died suddenly.

Before learning of Estrellita’s death, the librarian petitioned for the monkey’s return, citing her likely distress at being stolen from familiar, friendly surroundings and plopped in a zoo with strangers and arguing it was a violation of Estrellita’s rights. The Court ruled that Estrellita’s rights had indeed been violated, both by the authorities who took her away, and by the family that stole her from the wild.

The idea that nature has inherent rights is less weird internationally and in Indigenous communities than it is in the industrialized West. Earlier this year, Tsuladxʷ (salmon) sued the city of Seattle in the Sauk-Suiattle tribal court system for recognition of their right to “exist, flourish and regenerate.” The complaint was filed on behalf of the fish species by the Sauk-Suiattle tribe in relation to the hydroelectric dams the city constructed on the Skagit river over the last century or so, with no way for the salmon to move upstream.

It may seem counterintuitive for the tribe to fight over what is perceived as an earth-friendly “green” source of power that provides about 20% of the city’s electricity with less carbon impact than burning fossil fuels. However, how green is it to exclude salmon from their traditional habitat simply to power industrial gadgets? Rights, biodiversity and ecosystems are absolutely interconnected, and hurting one hurts all of them. In October 2020, the UN Human Rights council voted to approve a nonbinding resolution recognizing a “safe, clean, healthy and sustainable environment as a human right,” against the strong objection of the UK and abstention by China, Japan, India and, unsurprisingly, Russia.

A world that doesn’t recognize the nature’s right to exist will not stop destroying natural systems for human profit and convenience. Destabilized, overburdened ecosystems then become the cause of more and bigger disasters, migrations, starvation, and suffering, canceling our own arbitrary rights to life, liberty, the pursuit of happiness, and others not enumerated here. Authoritarian regimes find ironically fertile ground in the chaos, whether they seek to roll back hard-won civil rights or invade and conquer new territory to rule in misery. If there is hope, it is in the rights of nature, more even than in the confirmation of a progressive justice who is doomed to spend much of her SCOTUS career writing strongly worded dissents.

Related: Manoomin Case is a Compelling Legal First


The First Country in The World Has Given Legal Rights to Individual Wild Animals
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Russia: Government Shuts Down Human Rights Watch Office
In the Latest Rights of Nature Case, a Tribe Is Suing Seattle on Behalf of Salmon in the Skagit River
Seattle’s ‘green’ power violates salmon’s legal rights, tribe says
Human rights depend on a thriving natural world

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