*1* See generally The Great Ape Project: Equality Beyond Humanity (Paola Cavalieri & Peter Singer, eds., 1994) (an anthology of the scholarship elucidating its opening sentence, "We are human, and we are also great apes"). Whereas species were once were classified simply by outward appearance, today’s sophisticated tools, such as DNA profiling and genetic mapping, permit accurate measurement both of variances and fundamental similarities among beings. See Jared Diamond, The Third Chimpanzee, in The Great Ape Project, supra, at 93-96. Chimpanzees are more closely related to humans than to gorillas; Frans de Waal, director of the Living Links Project on human evolution at Yerkes, Atlanta, indicates the 98.4 percent overlap in DNA between humans and chimpanzees and bonobos as a salient factor in extrapolating scientific data among them. See Richard Saltus, Scientists Plot Road Map of Human DNA, The New Orleans Times-Picayune, June 27, 2000, at A01.
*2* See generally Richard Byrne, The Thinking Ape: Evolutionary Origins of Intelligence (1995) (illustrating that Pan troglodytes, Gorilla gorilla, Pan paniscus, and Homo sapiens are all species of African great apes; and that, together with Pongo pygmaeus, they are members of a slightly larger taxonomic group known as the great apes, or "hominoidea").It is interesting to learn, however, that the most recent edition of the Smithsonian's definitive classification, Mammal Species of the World, has moved the non-human great apes into the family Homindae, previously reserved for humans alone. Mammal Species of the World (D. Wilson & D.M. Reeder, eds., 2d ed. 1993).
*3* Steve F. Sapontzis, Morals Reason, and Animals 67 (1987). Sapontzis has defined "person" simply as any being who can and should have moral rights.
*4* The law that currently regulates the use and treatment of all non-humans is obviously based upon a Cartesian ethology. The Cartesian view (i.e., the view of French philosopher René Descartes) holds that animals are unfeeling automatons, devoid of sentience and emotion. See generally, Political Theory & Animal Rights 14-17 (Paul A.V. Clarke & Andrew Linzey eds., 1990). Thus, Descartes advanced the theory that nonhuman animals were merely unfeeling machines. See id.
*5* See Sapontzis, supra note 3, at 38.
*6* Christopher D. Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects 8 (1974) (citations omitted) (emphasis in original).
*7* John Stuart Mill, On Liberty 125-26 (1859).
*8* UK Bans Experiments on Great Apes, Bridging the GAP: Newsletter of the Great Ape Project International, Autumn/Winter 1997 Extra, http://www.greatapeproject.org/newsletters/BtG2xtra.html (last visited Nov. 17, 2000).
*9* John Luxton, New Zealand’s Minister for Food and Fibre, stated, "This requirement recognizes the advanced cognitive and emotional capacity of great apes." Peter Singer, New Zealand Takes the First Step, Bridging the GAP: Newsletter of the Great Ape Project International, Autumn/Winter 1999, Issue 3, http://www.greatapeproject.org/newsletters/btg991.html (last visited Nov. 17, 2000).
*10* A further question might be asked: if our legal system of rights could encompass the non-human great apes without social upheaval, what if baboons or dolphins can also be shown to be self-aware, reasoning beings? Clearly, it would be wrong to deny one group of persons their rights simply because another group might also be entitled to them. Although we we cannot say with certainty that no other non-human animals are self-aware, rational, or otherwise endowed with the chararteristics of personhood, the tremendous complexity of great apes’ lives, including their ability to communicate, their social structures and emotional repertoires, are now well-known and scientifically established.
*11* See generally Thane Maynard, Primates: Apes, Monkeys, Prosimians (Franklin Watts ed., 1994). Chimpanzees live north of the Zaïre River, from Tanzania west to Senegal. Bonobos, inaccurately called "pygmy chimpanzees," inhabit the swamp forests of central Zaïre. Id. Mountain gorillas live in Zaïre, Rwanda, and Uganda; and lowland gorillas inhabit central and west Africa, from the rainforest of the Atlantic coastal nations of Cameroon, Equatorial Guinea, and Gabon, east along the equator through Congo, Central African Republic, and eastern Zaïre. Id. Orang-utans are now found only in Borneo and Sumatra. Id. (Zaïre was renamed The Democratic Republic of Congo on May 17, 1997, as explained in Rebellion as a way of life: Congo/Zaire's bloody history, Agence France Press, June 29, 2000. We retain the former name to avoid confusion, given its neighbor country which has the same name).
*12* Recognition of non-human apes’ constitutional interests would conceivably have an indirect benefit for apes in their natural habitat: the incentive to capture free-living apes, at least for the purpose of sale to dealers within the United States, would be removed.
*13* Cass R. Sunstein, An Eighteenth Century Presidency in a Twenty-First Century World, 48 Ark. L. Rev. 1, 21 (1994).
*14* See Toshiba Nishida, Chimpanzees are Always New to Me, in The Great Ape Project, supra note 1, at 26.
*15* 405 U.S. 727 (1972).
*16* 504 U.S. 555 (1992).
*17* Although the Animal Welfare Act was designed to insure humane treatment, non-human subjects of biomedical research are often kept in cramped spaces where isolation, repeated handling, physical pain and injury are routine. For a detailed treatment of this issue, see Laura G. Kniaz, Animal Liberation and the Law: Animals Board the Underground Railroad, 43 Buff L. Rev. 765, 789-92 (1995).
*18* Courts have read Article III, §2 of the Constitution as restricting federal courts to disputes "traditionally thought to be capable of resolution through judicial process." Sierra Club v. Morton, 405 U.S. 727, 732 (1972); Flast v. Cohen, 392 U.S. 83, 101 (1968). Under the current doctrine of "standing," federal litigants must demonstrate (1) injury in fact; (2) which is caused by, or is fairly traceable to, alleged unlawful conduct; and (3) which is likely to be redressed by favorable decision of the court. Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 662-63 (D.C. Cir. 1996); Valley Forge Christian College v. Ams. United, 454 U.S. 464, 472 (1982). A party invoking judicial review in the hope of striking down legislation must show that the statute is invalid and that she has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not a generalized grievance. Lujan v. Defenders of Wildlife, 504 U.S. 555, 601 (1992). This ensures that the Court does not "assume a position of authority over the governmental acts of another and co-equal department. Id. For prudential standing, a plaintiff must additionally show that "‘the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute.’" Hazardous Waste Treatment Council v. EPA, 861 F.2d 277, 282 (D.C. Cir. 1988) (citing Ass’n of Data Processing Serv. Org., Inc. v. Camp, 397 U.S. 150, 153 (1970)). The test is whether Congress "intended for [a particular] class [of plaintiffs] to be relied upon to challenge the agency disregard of the law." Clarke v. Securities Indus. Ass’n, 479 U.S. 388, 399 (1987) (citation omitted). Congress is deemed to have intended to preclude the general public from bringing an action where oversight bodies known as Institutional Animal Care and Use Committees ("IACUCs") have been installed with the express purpose of ensuring the public interest that AWA minimum standards are met. See Int’l Primate Prot. League v. Adm’rs of the Tulane Educ. Fund, 895 F.2d 1056, 1058-59 (5th Cir. 1990).
*19* 895 F.2d 1056 (5th Cir. 1990). In Int’l Primate Protection League, groups and individuals sought custody of non-human primates who were then controlled by a scientist who had been charged with multiple counts of animal cruelty under Maryland state law. Id. The federal court held that the Plaintiffs lacked standing under Article III. Id. at 1058-59. This holding was in alignment with the view of the Fourth Circuit’s previous affirmation of the District Court’s dismissal of the case. Judge Wilkinson of the Fourth Circuit stated: "In fact, we are persuaded that Congress intended that the independence of medical research be respected and that administrative enforcement govern the Animal Welfare Act." Int’l Primate Prot. League v. Inst. for Behavioral Research, Inc., 799 F.2d 934, 935 (4th Cir.1986). Deference to the independence of medical research is deference to an entity that cannot be expected to act disinterestedly in the matter. Such deference is not appropriately exercised in the case of research subjects who are persons. Acknowledging that Evelyn Hart’s interests merit judicial protection might seem more difficult than merely deferring to legislative wisdom; as Professor Tribe writes, "it always looks more legitimate, at first glance, to defer to others. But even that may entail an assumption of power, especially when the decision maker exercises discretion in deciding when to defer and when to intervene, as the Court obviously has done ever since Marbury v. Madison." Laurence H. Tribe, Unraveling National League of Cities: The New Federalism and Affirmative Rights to Essential Government Services, 90 Harv. L. Rev. 1065, 1087 (1977).
*20* See Animal Legal Defense Fund, Inc. v. Glickman, 130 F.3d 464 (D.C. Cir. 1997); Animal Legal Defense Fund, Inc. v. Nat’l Ass. for Biomedical Research, 136 F.3d 829 (D.C. Cir. 1998). The Animal Welfare Act (AWA) mandates establishment of IACUCs at research sites that use animals covered under the Act. See 7 U.S.C. § 2143(b)(1) (1994). See also David R. Schmahmann & Lori J. Polacheck, The Case Against Rights for Animals, 22 B.C. Envtl. Aff. L. Rev. 747, 765-68 (1995) (claiming that the Animal Welfare Act codifies the human right to use non-humans in research).
*21* See U.S. Const. art. III, § 2.
*22* Francis J. Novembre of Emory University’s Yerkes laboratory presents an example of a scientist who prefers to refer to chimpanzees by serial number rather than by name. See Abstract of Project No.5 R01 AI40879-02, Emory University, http://www.ncrr.nih.gov/grants/crisp.html (visited August 11, 1998). The abstract reports, "At the time that C499 developed illness, blood was transfused from this animal to an uninfected animal, C455, to further examine the pathogenesis of virus infection." Id. Novembre was avoiding saying that before Jerom (C499) died, he was forcibly paralyzed with a drug so that some of his blood could be taken. Then his blood was injected into Nathan (C455) to see if he would also become sick and die. Id.
*23* Roe v. Wade, 410 U.S. 113, 155 (1973).
*24* U.S Const. amend. V; U.S. Const. amend. XIV, § 1.
*25* U.S. Const. amend. XIII, § 1.
*26* See Roe v. Wade, 410 U.S. at 124.
*28* See Joseph Vining, Legal Identity: The Coming of Age of Public Law 144 (1978).
*29* Laurence H. Tribe, American Constitutional Law §15-3, at 1308 (2d ed. 1988).
*31* The point, however, cannot be stated with absolute certainty. Frans de Waal, a primatologist at the Yerkes Regional Primate Center in Atlanta, U.S., felt compelled to describe the ape personalities and politics he observed in human terms, stating that they "can only be portrayed accurately by using the same adjectives as we use to characterize our fellow human beings." H. Lyn White Miles, Language and the Orang-utan: The Old ‘Person’ of the Forest, in The Great Ape Project, supra note 1, at 43.
*32* See generally Jane Goodall, The Chimpanzees of Gombe (1990).
*33* After more than three decades of studying chimpanzees, Dr. Jane Goodall affirms that our closest living relatives are so similar to us that they feel pain and suffering in much the same way that we do. See Jane Goodall, Chimpanzees – Bridging the Gap, The Great Ape Project, supra note 1, at 13.
*34* See, e.g., Jane Goodall, Tool Using and Aimed Throwing in a Community of Free-Living Chimpanzees, 201 Nature 1264-1266 (1964).
*35* See, e.g., Frontiero v. Richardson, 411 U.S. 677, 684 (1973) (invalidating sex discrimination by a State, observing that the "attitude of 'romantic paternalism' ... put women, not on a pedestal, but in a cage").
*36* Ronald Dworkin, Law’s Emipire 368 (1986).See also Ronald Dworkin, Life’s Dominion 26 (1994) ("This more difficult issue requires us to decide the broader question of whether the Constitution should be understood as a limited list of the particular individual rights that statesmen now dead thought important, or as a commitment to abstract ideals of political morality that each generation of citizens, lawyers, and judges must together explore and reinterpret").
*37* See Sunstein, supra note 13, at 19-20. In this article Sunstein notes the following:
*38*[C]onstitutional law in America (and in many other nations as well) has many features of the common law process. In that process, no one sets down broad legal rules in advance. The meaning of the Constitution is not a product of antecedent rules. Instead, the rules emerge narrowly as judges decide individual cases. Governing principles come from the process of case-by-case adjudication, and sometimes they cannot be known in advance. It does seem clear that much of constitutional law in the United States comes not from the constitutional text itself, but from judge-made constitutional law, interpreting constitutional provisions. For this reason, the meaning of the document is not rigidly fixed when the document is written and ratified.
Id. at 14.
*39* See Dworkin, Law’s Empire, supra note 36, at 360, 388; see also Proceedings of the Forty-Seventh Annual Judicial Conference of the District of Columbia Circuit, 114 F.R.D. 419, 447 (1987) (statement of Lawrence H. Tribe, Professor of Law).
*40* The Supreme Court, in Brown v. Board of Education, 347 U.S. 483 (1954), stated that segregation with the sanction of law tends to retard the educational and mental development of African-American children and to deprive them of some of the benefits they would receive in an integrated system. "Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson," stated the Court, "this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected." Id. at 494-95. Plessy v. Ferguson, 163 U.S. 537 (1896), sustained a Louisiana law of 1890 that segregated railroad passengers by race. In challenging the law, Plessy alleged that he was "seven-eighths Caucasian and one-eighth African blood; that the mixture of colored blood was not discernable in him; and that he was entitled to every right [of] the white race." Id. at 538. Dworkin acknowledges the importance of construing the framers’ declarations, which are certainly "part of the community’s political record." Dworkin, Law’s Empire, supra note 36, at 365. "But we noticed how sensitive this argument is to time," adds Dworkin. Id.
It could not be weaker than it is in the present context, when the declarations were made not just in different political circumstances but to and for an entirely different form of political life. It would be silly to take the opinions of those who first voted on the Fourteenth Amendment as reporting the public morality of the United States a century later, when the racial issue had been transformed in almost every way. It would also be perverse; it would deny that community the power to change its public sense of purpose, which means denying that it can have public purposes at all.
*41* We are grateful for a discussion with Professor Laurence Tribe that further expanded this idea. E-Mail from Laurence Tribe, Professor of Law, Harvard Law School (October 12, 1999) (on file with the author). As Professor Tribe observed, "[T]he time may come when genetic engineering and the computer sciences have created creatures that fill the supposed gaps between [human and non-human apes], on the one hand, and between computers and people, on the other. Once the lines are blurred by the introduction of numerous intermediate points, courts will have to start rethinking what the lines are all about anyway." Id.
*42*Peter Singer, Rethinking Life and Death 180 (1994).
*43* Peter Singer, Practical Ethics 86 (2nd ed. 1998).
*45* JOHN LOCKE, Essay on Human Understanding, Bk. II, ch. 9, ¶ 29 (1690), quoted by Singer, supra note 42, at 87.
*46* See Singer, supra note 42, at 87.
*47* See Gary L. Francione, Personhood, Property and Legal Competence, in The Great Ape Project, supra note 1, at 252.
*48* See id. at 253 (arguing cogently that moral consideration should adhere at sentience, but observing that wherever we "draw the line" to include beings for this consideration, it is clear that non-human great apes are on the same side as humans: "it would be irrational to place some great apes on one side, and some on the other.").
*49* Mark A. Krause, Biological Continuity and Great Ape Rights, 2 ANIMAL L. 171, 173 (1996).
*50* See Elizabeth Pennisi, Are Our Primate Cousins ‘Conscious’? New Tests for Animal Intelligence, 284 Science 2073 (1999) (explaining that in the 1950s, anthropologists drew a line between human and other apes at the use of tools; thus any ancient hominid associated with stone tools was automatically assigned to our genus, Homo). Jane Goodall’s observations revised this paradigm. See generally Goodall, supra note 34. Gloria Grow and Dawna Grow of the Fauna Foundation in Québec, Canada have recorded details of the daily uses to which chimpanzees at their sanctuary put tools, as well as their impressive dexterity. Telephone Interview with Gloria Grow, Co-Founder of the Fauna Foundation (April 10, 2000). Fourteen of the fifteen chimpanzees open their own bottle tops; one ties and unties shoelaces; and most have no difficulty using keys, locks and bolts. Id. Several are adept at tea-making and washing dishes and toys. Id. Annie, the eldest chimpanzee at Fauna, frequently uses the squeeze nozzle to adjust the flow and direct the spray of a water hose in order to clean and remove foreign objects from gutters. Id. A chimpanzee who was extremely antisocial upon her arrival at the sanctuary has demonstrated a talent for removing splinters from Gloria’s and Dawna’s hands. Pepper removes the splinters with great care, using her thumbs as humans would. Id.
*51* See S.T. Boysen and G.T. Himes, Current Issues and Emerging Theories in Animal Cognition, Ann. Rev. of Psychol., Jan. 1, 1999, at 683. See also, e.g., BMF Galdikas, Orang-utan tool-use in Tanjung Puting Reserve, Central Borneo (Kalimantan Tengah), 10 J. Hum. Evol. 19-33 (1982).
*52*See generally Goodall, supra note 34; see also R.W. Byrne & A. Whiten, Machiavellian Intelligence: Social Expertise and the Evolution of Intellect in Monkeys, Apes and Humans. (Oxford Univ. Press. 1991)
*53* See Boysen and Himes, supra note 50, at 683 (describing the research of D. Premack & G. Woodruff, Does the chimpanzee have a theory of mind? 1 Behav. Brain Sci. 515-26 (1978)).
*54* See id.
*55* Although it provides further evidence of a consciouness which deserves consideration for Lockean persnhood, this "sophisticated level" of mental activity is not necessarily a valid test for determining whether an individual should have rights. See Gary L. Francione, Personhood, Property and Legal Competence, in The Great Ape Project, supra note 1, at 253. Professor Gary L. Francione has argued that it is not necessary to have human characteristics to have the right not to be treated as a human resource. Personal Interview with Gary L. Francione (Philadelphia, January 8, 2001). In contrast to Singer, Francione argues that the cognitive states attributable to most humans should not be the standard that defines personhood. Id. Sentience, argues Professor Francione, is sufficient evidence of self awareness:
To be sentient means that when I hold a lighter to you, you have a mind that prefers or wants or desires not to feel pain. If I am conscious of pain, then logically I am self-conscious, because I know that it is I who am feeling the pain and not some third party.
Id. For related discussion, see Gary L. Francione, Inroduction to Animal Rights 114-15, 140-41 (2000).
*56* See Boysen and Himes, supra note 50, at 683.
*57* Id. (citing GG Gallup, Jr., Chimpanzees: self-recognition. 167 Science 86-87 (1970)).
*58* Id. See also GG Gallup, Jr., Self-awareness and the emergence of mind in primates, 2 Am. J. Primatol. 237-48 (1982); GG Gallup, Jr., Toward a comparative psychology of self-awareness: species limitations and cognitive consequences, in The Self: an Interdisciplinary Approach 121-35 (GR Goethals & J. Strauss, eds. (1991).
*59* See Elizabeth Pennisi, supra note 49.
*62* See Lauran Neergaard, Startling insights about apes and us: Quick-thinking bonobo suggests human mental traits not unique, The Toronto Star, May 24, 1998, at F8.
*65* Fauna Foundation Home Page, at http://www.faunafoundation.org/home.html (last visited Nov. 17, 2000).
*66* Telephone Interview with Gloria Grow, Co-Founder of the Fauna Foundation (April 10, 2000).
*71* Telephone Interview with Gloria Grow, Co-Founder of the Fauna Foundation (April 10, 2000).
*73* See Boysen & Himes, supra note 50 (citing D. Premack & G. Woodruff, Chimpanzee problem-solving: a test for comprehension, 202(3) Science 532-35 (1978)).
*78* See Roger Fouts & Stephen Tukel Mills, Next of Kin: My Conversations with Chimpanzees (1997).
*79* Id., at 291.
*84* See Peter Singer, Practical Ethics, supra note 42, at 86.
*85* The 25 Most Intriguing People ’96, Binti-Jua: She Gave a Helping Hand to a Distant—Very Distant—Relation, People, Dec. 30, 1996, at 66.
*87* Anne Marie O’Neill, Mary Green, and Paul Cuadros, One Great Ape: Binti-Jua, A West African Gorilla, Flexes Her Maternal Muscles to Save a Little Boy’s Life, People, Sept. 2, 1996.
*88* The 25 Most Intriguing People ’96, Binti-Jua: She Gave a Helping Hand to a Distant—Very Distant—Relation, People, Dec. 30, 1996, at 66.
*89* See Sapontzis, supra note 3, at 36.
*90*Id. Sapontzis notes that morally-based actions on the part of non-humans, especially when such actions are associated with cognitive abilities, have been repeatedly unrecognized by scientists, who have been "complacently sure that animals were not aware and could not think." Id. at 61. Sapontzis compares this attitude with "the complacent assurance of gentlemen from ancient Greece to Victorian England concerning the intellectual and moral inferiority of women and of the embarrassing blindness to which that assurance led otherwise perceptive men." Id.
*91* Binti Jua: Returning the Favor, Bridging the Gap, Newletter of the Great Ape Project International, Mar. 1997, http://www.greatapeproject.org/newsletters/BtG1P5.html (last visited Nov. 17, 2000).
*92* Fouts & Mills, Next of Kin, supra note 78, at 44.
*98* This factor is therefore considered by Peter Singer in Practical Ethics, supra, note 42, at 86, although linguistic ability is not necessarily a valid test for determining whether an individual should have rights. As Patterson and Gordon point out, "[m]any human beings—including all infants, severely mentally impaired people and some educationally deprived deaf adults of normal intelligence—fail to meet the criteria for ‘having language’ according to any definition…[b]ut the existence of even basic language skills does provide further evidence of a consciouness which deserves consideration." Francine Patterson & Wendy Gordon, The Case for the Personhood of Gorillas, in The Great Ape Project, supra note 1, at 61.
*99* See generally Sue Savage-Rumbaugh & Roger Lewin, Kanzi: The Ape at the Brink of the Human Mind (1994).
*100* For various descriptions and further references, see Roger S. Fouts & Deborah H. Fouts, Chimpanzees’ Use of Sign Language, in The Great Ape Project, supra note 1, at 28-41; Francine Patterson & Wendy Gordon, The Case for the Personhood of Gorillas, in The Great Ape Project, supra note 1, at 58-77; and H. Lyn White Miles, Language and the Orang-utan: The Old ‘Person’ of the Forest, in The Great Ape Project, supra note 1, at 42-57.
*101* See generally Sue Savage-Rumbaugh & Roger Lewin, supra note 99.
*102* See, e.g., Mark D. Bodamer et al., Functional Analysis of Chimpanzee (Pan troglodytes) Private Signing, in 9 Human Evolution 281-296 (1994); and Roger S. Fouts & Deborah H. Fouts, Chimpanzees’ Use of Sign Language, in The Great Ape Project, supra note 1, at 34.
*103* See Francine Patterson & Wendy Gordon, The Case for the Personhood of Gorillas, in The Great Ape Project, supra note 1, at 58-59.
*104* Id. at 58.
*106* Id. at 58; see also id. at 61 (for a chart that tracks the intelligence tests taken in 1975 and 1976, chronological age in months, mental age in months, and specific results).
*107* Id. at 64.
*109* Id., at 65.
*110* Id. at 58-59.
*111* Id. at 59.
*112* Id. at 58. See also Singer, supra note 41, at 175-176 (describing similar behavior in other non-human great apes).
*113* See Francine Patterson & Wendy Gordon, The Case for the Personhood of Gorillas, in The Great Ape Project, supra note 1, at 58.
*114* See The Great Ape Trial, Channel Four Television broadcast, December 27th, 1995, produced by Wall to Wall Television, 8-9 Spring Place, Kentish Town, London, http://www.greatapeproject.org/archives/gatrial.html. Goodall cites apes’ interests as they correspond to those that underlie human rights:
the family bonds that last through life, a life-span of fifty to sixty years, the fact that there’s a long childhood dependency, as in our own species, the fact that learning plays a very important part in the acquisition of adult behaviour, co-operation, [and] true altruism, which we’ve observed in the wild.…
Id. Great apes kiss, hold hands, slap each other on the back, and show aggression—much as humans do. Id. For a related discussion on the similarities of human and chimpanzee psychology, including mourning the death of mothers, see Roger Fouts, My Best Friend is a Chimp, Psychology Today, July 1, 2000, at 68.
*115* See generally Dale Peterson and Jane Goodall, Visions of Caliban (2000).
*116* See Vining, supra note 28, at 144.
*117* John chipman Gray, The Nature and Sources of the Law 27 (Roland Gray ed., MacMillan 1921) (1909).
*119* The idea of a "corporate person" is by no means new to the law, but one commentator has observed recently that the recognition of "corporate personality" incorporates an unspoken "agreement no longer to ask difficult questions about the "essence" of personality." David Graver, Personal Bodies: A Corporeal Theory of Corporate Personhood, 6 U. Chi. L. Sch. Roundtable 235, 239 (1999) (citation omitted). Nevertheless, the court has had to deal with the "essence" of corporate personality on a case by case basis, and has held that the corporate person does not have all the rights of a natural person. See, e.g., Bell v. United States, 417 U.S. 85 (1974) (holding that a corporation has no right against self-incrimination, that right being limited to natural persons); Hague v. Comm. For Indus. Org., 307 U.S. 496, 514 (1939) (holding that a corporation is not entitled to the benefits of the Privileges and Immunities Clause); Fed. Deposit Ins. Corp. v. Hulsey, 22 F.3d 1472, 1489 (10th Cir. 1994) (holding that a corporation is not entitled to damages for emotional distress because "it lacks the cognizant ability to experience emotions").
*120* See Youngberg v. Romeo, 457 U.S. 307, 324 (1982).
*121* See Attachment following this Brief.
*122* What is the ‘Community of Equals’?, The Great Ape Project – GAP FAQ, Section 3: Principles and Policies, 3.1, http://www.greatapeproject.org/gapfaq.html (last visited Nov. 17, 2000) (emphasis in original).
*123* See Romeo, 457 U.S. at 314 (1982). Substantive due process concerns involve the area of law surrounding the rights of "privacy and personhood." Justice Louis Brandeis defined the constitutional right of privacy as "the right to be let alone," calling it "the most comprehensive of rights." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting opinion); see also Tribe, supra note 29, §15-1, at 1302. In Washington v. Harper, 494 U.S. 210 (1990), the United States Supreme Court addressed the issue of a prison inmate given anti-psychotic drugs by the state of Washington, finding that an inmate’s interest in avoiding involuntary administration of antipsychotic drugs was protected under the Fourteenth Amendment’s Due Process Clause. The Court stated that "forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty." Id. at 229. T.D. v. N.Y. State Office of Mental Health, 650 N.Y.S.2d 173, 186 (1996), recognized that the right to reject treatment with anti-psychotic medication is not absolute, and that in certain emergency situations, "such as where the individual presents an imminent danger to himself or those in immediate proximity to him, that right may yield to compelling State interests." The Court stated, however, that State interests unrelated to the well being of the initial and others in immediate proximity do not outweigh the individual’s fundamental autonomy interest. Id.
*124*Youngberg v. Romeo, 457 U.S. 307 (1982). Justice Blackmun’s concurrence is even more properly aligned with world opinion on the matter, in the Declaration 2856 (XXVI): Declaration on the Rights of Mentally Retarded Persons is an indication. Art 1 of the Declaration states that "the mentally retarded person has …the same rights as other human beings." Declaration on the Rights of Mentally Retarded Persons, G.A. Res 2856, U.N. GAOR, 26th Sess., Supp. No. 29, U.N. Doc. A/8429 (1971).
Art 2 asserts a right to "such education, training, rehabilitation and guidance as will enable [development of] ability and maximum potential." Id.
*125* Romeo, 457 U.S. at 315 (quoting Ingraham v. Wright, 430 U.S. 651, 673 (1977)).
*126* See S.T. Boysen and G.T. Himes, Current Issues and Emerging Theories in Animal Cognition, Ann. Rev. of Psychol., Jan. 1, 1999, at 683.
*127* Christoph Anstötz, Profoundly Intellectually Disabled Humans and Apes: A Comparison, in The Great Ape Project, supra note 1, at 161-62.
*128* Id., at 165. In tests developed to measure the intelligence of human children, the abilities of non-human great apes have generally correlated with those of humans between two and three years old, with some skills of even older children. See H. Lyn White Miles, Language and the Orang-utan: The Old "Person" of the Forest, in The Great Ape Project, supra note 1, at 49.Such cognitive assessments are necessarily conservative, for they require non-human hominids to make sense of human meanings, in human settings. See Barbara Noske, Great Apes as Anthropological Subjects: Deconstructing Anthropomorphism, in The Great Ape Project, supra note 1, at 266.
*129* See Jane Goodall, Chimpanzees – Bridging the Gap, in The Great Ape Project, supra note 1, at 13. See also Christoph Anstötz, Profoundly Intellectually Disabled Humans and Apes: A Comparison," in The Great Ape Project, supra note 1, at 164.
*130* Christoph Anstötz, Profoundly Intellectually Disabled Humans and Apes: A Comparison, in The Great Ape Project, supra note 1, at 164-65 (for an analysis of Goodall’s study).
*131* Id. at 165.
*133* See Jane Goodall, Chimpanzees – Bridging the Gap, The Great Ape Project, supra note 1, at 13 (discussing chimpanzee’s capacity for suffering); see also Jane Goodall, supra note 32, at 241 (describing non-human great apes as naturally sociable and extremely active).
*134* U.S. Const. amend. V, "No person shall be…deprived of life, liberty, or property, without due process of law…" U.S. Const. amend. XIV, § 1, "nor shall any state deprive any person of life, liberty, or property, without due process of law…."
*135* Justice Harlan once explained,
[T]radition is a living thing…[The] full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points…It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints…which also recognizes [that]…certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.
Poe v. Ullman, 367 U.S. 497, 542-543 (1961) (Harlan, J., dissenting).
*136* See Walter F. Murphy et al., American Constitutional Interpretation 892-893 (2d ed. 1995).
*137* Williamson v. Lee Optical Co., 348 U.S. 461, 466 (1955).
*138* See Murphy, supra note 136, at 892-893.
*139* Charles Darwin acknowledged that species distinctions are not truly boundaries but merely categories of convenience. Charles Darwin, Origin of Species 98 (1859). Darwin wrote, "It is immaterial for us whether a multitude of doubtful forms be called species or sub-species or varieties....The mere existence of individual variability and of some few well-marked varieties, though a necessary foundation of the work, helps us but little in understanding how species arise in nature." Id. By 1872, Darwin had shown by detailed observations that the expression of emotions in nonhuman primates is closely analogous to that in human beings. See generally Charles Darwin, The Expression of the Emotions in Man and Animals (3d ed. 1998).
*140* "There is no natural category that includes chimpanzees, gorillas and orangutans but excludes humans." Richard Dawkins, Gaps in the Mind, in The Great Ape Project, supra note 1, at 82; see also Fouts & Mills, supra note 78, at 51-57.
*141* See David Cantor, Items of Property, in The Great Ape Project, supra note 1, at 280-89. Hundreds of chimpanzees, bonobos, gorillas, and orang-utans are used by the entertainment and advertising industries, kept on display at zoos, or sold to private owners. Id. at 280. About 2000 great apes, primarily chimpanzees, live in laboratory cages in at least seven biomedical research institutions in the United States. Id.
*142* See id. at 284 (for a detailed description of the conditions in laboratories, and cases of resultant psychosis and deaths of non-human hominids).
*143* See, e.g., Reed v. Reed 404 U.S. 71 (1971) (holding that an Idaho statute which provides that as between persons equally qualified to administer estates males must be preferred to females, was based solely on a discrimination prohibited by, and violative of, the equal protection clause of the Fourteenth Amendment).
*144* See Jay Katz, Health Law Symposium: Human Experimentation and Human Rights, 38 St. Louis U. L.J. 7, 15 (1993).
*145* See, e.g., T.D. v. N.Y. State Office of Mental Health, 650 N.Y.S.2d 173, 193 (1996). In T.D., the Supreme Court of New York took notice of the competition among players in the pharmaceutical industry to market new psychiatric drugs. Id. Justice Ross wrote,
It is evident that, given the motivation to test these medications and quickly bring them to market, industry-sponsored studies, which will not rely on Federal funds and therefore will not be strictly subject to Federal guidelines and oversight, will proliferate. These developments serve to highlight the importance of safeguarding the rights of incapable adults and minors, who may be potential subjects of greater than minimal risk studies involving psychiatric medications, through constitutionally acceptable protocols and guidelines promulgated by the appropriate agency.
Id. at 194.
*146* See McLaughlin v. Florida, 379 U.S. 184, 192 (1964) (describing racial classifications as "constitutionally suspect" under Bolling v. Sharpe, 347 U.S. 497, 499, and subject to the "most rigid scrutiny," under Korematsu v. United States, 323 U.S. 214, 216 (1944), and "in most circumstances irrelevant" to any constitutionally acceptable legislative purpose under Hirabayashi v. United States, 320 U.S. 81, 100 (1943)); see also Graham v. Richardson, 403 U.S. 365, 374-75 (1971) (holding that provisions of Arizona and Pennsylvania welfare laws conditioning benefits on citizenship were violative of the Equal Protection clause of the Fourteenth Amendment because "an alien as well as a citizen is a ‘person’ for equal protection purposes").
*147* Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 454 (1985) (Stevens, J., concurring) (discussing the mistreatment of the mentally disabled).
*148* U.S. Const. amend. V.
*149* U.S. Const. amend. XIV, § 2.
*150* Bolling v. Sharpe, 347 U.S. 497, 498 (1954).
*151* See Dworkin, Life’s Dominion, supra note 36, at 128.
*152* U.S. Const. amend. XIV, § 2.
*153* See Plyler v. Doe, 457 U.S. 202, 216 (1982).
*154* See, e.g., Romer v. Evans, 517 U.S. 620, 623 (1996).
*155* Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 466 (1985) (Marshall, J., concurring in part and dissenting in part). Justice Marshall invited the reader to contrast Plessy v. Ferguson, 163 U.S. 537 (1896) and Bradwell v. Illinois, 16 Wall. 130, 141 (1873) (Bradley, J., concurring), with Brown v. Bd. of Educ., 347 U.S. 483 (1954), and Reed v. Reed, 404 U.S. 71 (1971). Id.
*156* The Fifth and Fourteenth Amendments to the Constitution expressly protect life against any government action taken without due process. U.S. Const. amend. V ("No person shall be…deprived of life, liberty, or property, without due process of law…"); U.S. Const. amend. XIV § 1 ("…nor shall any state deprive any person of life, liberty, or property, without due process of law…").
*157* The Supreme Court has decided that certain rights not specifically enumerated in the Constitution are still fundamental ones. See, e.g., Griswold v. Connecticut, 381 U.S. 479 (1956). See also Laurence H. Tribe, Foreward: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1, 43 (1973). For a thorough analysis of substantive due process concerns involving the rights of privacy and personhood, see Tribe, supra note 29, ch. 15.
*158* The Supreme Court has required such a connection in, e.g., Adarand Constructors, Inc. v. Peña, 115 S. Ct. 2097, 2114, 2117 (1995).
*159* See Murphy, supra note 136, at 892-93.
*160* Jon Cohen, Overhauling AIDS Research: Views from the Community, 271 Sci. 590 (1996).
*161* Tribe, supra note 29, §15-2, at 1306.
*162* See, e.g., 45 C.F.R. §§ 46.05-46.06 (requiring stricter standards for research involving no prospect for direct benefit to the research subject).
*163* For example, according to the National Association of Crime Victim Compensation Boards, $248,717,660 was paid to crime victims by state compensation boards in 1997 alone. Statistics Bear out the Toll Crime Takes on Society, Sunday Patriot – News (Harrisburg, PA), Ap. 25, 1999, at A. When the cost of medical care, lost earnings, pain, suffering, and dimuntion of the qualtiy of life are all considered, it is estimated that the annual cost of violent crime in this country is $450,000,000,000. Id.
*164* See Geraldine Brooks, In Chimp Sell-Off, Military Finds It Has Monkey on Its Back, The Wall Street Journal, Dec. 30, 1997, at A1.
*165* See In Re T.A.C.P., 609 So. 2d 588 (Fla. 1992).
*166* Brooks, supra note 164, at A1.
*168*The Oath of Hippocrates, reprinted in Jay Katz, Experimentation with Human Beings 311 (1972).
*170* Id. For a general discussion of this trend, see Michael J. Loscialpo, Nontherapeutic Human Research Experiments on Institutionalized Mentally Retarded Children: Civil Rights and Remedies, 23 New Eng. J. on Crim. and Civ. Confinement 139 (1997). For a specific example, see Gary Lee, Final Data Released on Tests Involving Radiation Exposure, The Washington Post, August 18, 1995, at A23 (reporting that the United States Department of Energy found that researchers used 16,000 children, men, and women in radiation experiments from World War II to the mid-1970s).
*171* See Youngberg v. Romeo, 457 U.S. 307, 321 (1982).
*172* See generally Loscialpo, supra note 170.
*173* Jay Katz, Health Law Symposium: Human Experimentation and Human Rights, supra note 144, at 8.
*174*ee, e.g., Mackey v. Procunier, 477 F.2d 877, 877-78 (9th Cir. 1973) (prisoners); Begay v. U.S., 768 F 2.d 1059 (9th Cir. 1985) (Native American uranium mine workers); Mink v. Univ. of Chicago, 460 F. Supp. 713 (N.D. Ill. 1978) (pregnant women); Burton v. Brooklyn Doctors Hosp., 452 N.Y.S.2d 875 (N.Y. App. Div. 1982) (infants); United States v. Stanley, 483 U.S. 669, 671 (1987) (members of armed forces); Claire Alida Milner, Gulf War Guinea Pigs: Is Informed Consent Optional During War? 13 J. contemp. Health L. & Pol’y 199 (members of the armed forces). For an account of involuntarily hospitalized adults and children at Office of Mental Health psychiatric facilities who were adjudicated mentally incapable of giving or withholding informed consent to experimentation, see T.D. v. N.Y. State Office of Mental Health, 650 N.Y.S.2d 173 (1996) (citing failure to adequately protect common-law privacy and Fourteenth Amendment due process rights of potential subjects).
*175* See Henry K. Beecher, Ethics and Clinical Research, 274 New Eng. J. Med. 1354 (1966).
*176* Scott Allen, Radiation Used on Retarded, Boston Globe, Dec. 26, 1993, at 1. The non-therapeutic experiments, performed on adolescent subjects whose I.Q.s ranged from 46 to 75, led to the doctoral thesis of a Massachusetts Institute of Technology faculty member. See Loscialpo, supra note 170, at 143. The Quaker Oats Company provided funding, and the United States Atomic Energy Commission (AEC, now the Department of Energy) provided the radioactive isotopes. Id. at 143-44. See also Associated Press, Radioactive Oatmeal Suit Settled for $1.85 Million, The Washington Post, Jan. 1, 1998, at A17 ("reporting that the group of former students who ate radioactive oatmeal as unwitting participants in a food experiment will share a $1.85 million settlement from Quaker Oats and the Massachusetts Institute of Technology"). In an unrelated Fernald experiment, researchers justified the administration of an extremely dangerous amount of radiation to one ten-year-old child on the grounds that he was severely retarded and terminally ill with Hurler-Hunter syndrome. A Report on the Use of Radioactive Materials in Human Subject Research That Involved Residents of State-Operated Facilities Within the Commonwealth of Massachusetts From 1943 Through 1973, Task Force on Human Subject Research, Department of Mental Retardation B18, B27(1994). The researchers requested permission from the AEC to inject fifty microcuries of Ca-45 into the "moribund gargoyle," as the child was called in the report by Fernald’s superintendent. Nonterminally ill retarded children were given one microcurie. Id.
*177* Robert I. Field, Children as Research Subjects: Science, Ethics & Law (M. Grodin & L. Glantz, eds., 1994), 16 J. Legal Med. 311, 311 (1995) (book review).
*178* Id. See generally David J. Rothman & Sheila M. Rothman, The Willowbrook Wars (1984); Paul R. Friedman, The Rights of Mentally Retarded Persons (1976).
*179* Paul R. Friedman, The Rights of Mentally Retarded Persons 65 (1976).
*180* See generally Nat’l Research Act, Pub. L. No. 93-348, 88 Stat. 342 (1974) (codified as amended at 42 U.S.C. § 241 (1994)).
*181* See Robert J. Levine, Ethics and Regulation of Clinical Research 236 (1988).
*182* See Loscialpo, supra note 170, at 148. The DHHS was a separate agency from the DHEW until 1980.
*183* See 45 C.F.R. §§ 46.405-46.406 (1994) (elucidating the standards for children as vulnerable subjects; additionally in cases of "[r]esearch not involving greater than minimal risk" under § 46.404, "adequate provisions" must be made "for soliciting the assent of the children and permission of their parents or guardians," as set forth in § 46.408). Under 45 C.F.R. § 46.407(a) and (b), research in pursuit of generalized knowledge, i.e., "[r]esearch not otherwise approvable which presents an opportunity to understand, prevent, or alleviate a serious problem affecting the health or welfare of children," will be conducted or performed only if the research "presents a reasonable opportunity to further the understanding, prevention, or alleviation of a serious problem affecting the health or welfare of children; and the HHS Secretary," after consultation with a panel of experts in pertinent disciplines and following opportunity for public review and comment, has determined that
[t]he research presents a reasonable opportunity to further the understanding, prevention, or alleviation of a serious problem affecting the health or welfare of children; [t]he research will be conducted in accordance with sound ethical principles; and [a]dequate provisions are made for soliciting the assent of children and the permission of their parents or guardians.
*184* See supra note 9.
*185* See Sapontzis, supra note 3, at 174-175 (providing a discussion of the philosophical basis underlying a sentient being’s interest in life).
*186* See Meyer v. Nebraska, 262 U.S. 390, 399-400 (stating that the liberties, such as those protected by the Due Process Clause of the Fourteenth Amendment, "may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect"). Moreover, the Supreme Court has ruled that even though a governmental prupose is legitimate and substantial, that prupose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. Kusper v. Pontikes, 414 U.S. 51, 59 (1973); Police Dept. of Chicago v. Mosley, 408 U.S. 92, 102 n.8 (1972); Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 602 (1967); Elfbrandt v. Russell, 384 U.S. 11, 18-19 (1966); Aptheker v. Sec’y of State, 378 U.S. 500, 508 (1964); see also Miller v. Murphy, 143 Cal. App. 3d 337, 342-43 (1st Dist. 1983) (under strict scrutiny analysis of a legislative regulation, in order to by upheld, it is required that the law be shown "necessary, and not merely rationally related to, the accomplishment of a permissible and compelling interest" (citation omitted)).
*187* The "compelling interest" prong of strict scrutiny requires not only that a compelling government interest exist, but also that the conduct be a substantially effective means for advancing that interest: if the challenged government action makes only a remote or speculative contribution to achieving the government’s prupose, strict scrutiny is not satisfied. See, e.g., The Fla. Star v. B.J.F., 491 U.S. 524, 540 (1989) (holding that strict scrutiny was not satisfied in part because of "serious doubts whether Florida is, in fact, serving, with this statute, the significant interests"); Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 226 (1989) (explaining that, in the particular case, the government failed to show how the government action advanced its asserted interest); McDaniel v. Paty, 435 U.S. 618, 628-29 (1978) (concluding that the alleged threat addressed by the statute under review (an infection of the political process by clerical participation) was speculative, as it did not have a historical record of occurrence, and was therefore insufficient to establish the act’s constitutionality under strict scrutiny).
*188* The General Assembly of the United Nations has defined torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons." See The Declaration on the Protection of All Persons from Being Subjected to Torture, General Assembly Resolution 3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N.Doc. A/1034 (1975), art. I. The Declaration expressly prohibits any state from permitting or tolerating torture or other cruel, inhuman or degrading treatment or punishment. Id. at art. III. The Declaration directs each state to take effective measures to prevent torture and other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction, and to "ensure that all acts of torture as defined in article I are offenses under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture." Id. at art. VII. Legislative history of United Nations organs underscore the view that nonconsentual biomedical experiments are torture. The United Nations Preparatory Committee on the Establishment of an International Criminal Court included biological experiments, unlawful deportation and confinement as sub-categories of "offences as wilful killing, torture or inhuman treatment." See Preparatory Committee for International Criminal Court Concludes Session, M2 Presswire, Dec.18, 1997.
*189* See Declaration on the Protection of All Persons from Being Subjected to Torture, supra note 188, art. III. A jus cogens, or peremptory, norm is defined by article 53 of the Vienna Convention as "a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, T.S. No. 58 (1980), reprinted in 8 I.L.M. 679-713 (1969), entered into force Jan. 27, 1980, art. 53.
*190* Declaration on the Protection of All Persons from Being Subjected to Torture, supra note 188, art. III.
*191* See Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment of Punishment, Model Treaty on Extradition, G.A. Res. 45/116, U.N. GAOR, 45th Sess., Supp. No. 49A, U.N. Doc. A/45/49 (1991). The international consensus surrounding torture has found expression in numerous international treaties and accords. See, e.g., The American Convention on Human Rights, art. 5, OAS Treaty Series No. 36 at 1, OAS Off. Rec. OEA/Ser 4 v/II 23, doc. 21, rev. 2 (English ed., 1975) ("No one shall be subjected to torture or to cruel, inhuman or degrading punishment or treatment"); International Covenant on Civil and Political Rights, U.N. General Assembly Res. 2200 (XXI)A, U.N. Doc. A/6316 (Dec. 16, 1966) (identical language); European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 3, Council of Europe, European Treaty Series No. 5 (1968), 213 U.N.T.S. 211 (semble ). Because Evelyn’s personhood places her within the curtilage of humanity for the purposes of these fundamental rights, petitioner invokes such conventions before this Court.
*192* That such plans fit the definition of torture is clear upon consideration of life in the laboratory. The history of Jean, an actual laboratory chimpanzee, is typical. Pharmaceutical giant Merck, Sharp & Dohme donated Jean (CH-562) to the Buckshire Corporation in 1981, when she was six years old. In 1988 she arrived at the Laboratory for Experimental Medicine and Surgery in Primates (LEMSIP), at New York University. There, she was continually given vaginal washes and cervical biopsies, and often reported to have self-inflicted wounds. In 1993 she was inoculated with HIV. Following a subsequent study in 1995, Jean suffered a nervous breakdown. She was heavily medicated for the next two years; yet throughout this time she experienced a series of aggressive seizures during which she removed her own fingernails, screamed incessantly, and thrashed out at anyone who came near her. In 1997 LEMSIP shut down and most of its non-human residents were shipped to Frederick Coulston’s laboratory in New Mexico for further invasive research. Jean, along with fourteen of her lab mates, was released to a private sanctuary at the insistence of Gloria Grow of the Fauna Foundation, who built a spacious indoor and outdoor facility to house as many chimpanzees as village zoning rules would allow. To this day, Jean suffers from "phantom hand" syndrome, a disorder that causes her to fight off her own hand as though it were attacking her. See Carlos Soldevila, Reuters News Service, Carignan, Québec (July 16, 1998, "A dozen chimpanzees used for biomedical research went out recently for a breather." Further information about Jean and the Fauna Foundation is available from <firstname.lastname@example.org>.
*193* See Goodall, supra note 133 (discussing non-human great apes’ capacity for suffering).
*194* See, e.g., Attorney Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 909-10 (1986) ("[If] there are other, reasonable ways to achieve [a compelling state purpose] with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose ‘less drastic means’" (citation omitted)).
*195* See Tribe, supra note 29, § 15-9, at 1334-35. Professor Tribe discusses the reciprocity requirement in physical intrusions, noting that such a requirement "serves to minimize the danger that a bodily invasion will be justified solely on the bais that the greater good of the society is served thereby; that one person’s two good eyes, distributed to two blind neighbors, might yield a net increase in happiness on the theory that one blind person will experience less misery than two, cannot justify a governmental decision to compel the exchange." Id.
*196* The Declaration on the Protection of All Persons from Being Subjected to Torture, General Assembly Resolution 3452, 30 U.N. GAOR Supp. (No. 34) 91, U.N.Doc. A/1034 (1975).
*197* Louis Henkin, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 Am. J. Int’l. L. 341, 347-48 (1995)
In 1988 President Reagan sought Senate consent to United States ratification of the Convention against Torture with reservations, and with a declaration that it shall not be self-executing. The executive branch apparently decided that the Convention should not be ratified until Congress enacted implementing criminal legislation required by the Convention. Congress finally enacted such legislation in April 1994 and the United States ratified the Torture Convention in October 1994.
*198* Theodor Meron, On A Hierarchy of International Human Rights, 80 Am. J. Int’l L. 1, 11 (1986). Meron explains that the prohibition against torture is a fundamental right, observing its status as a non-derogable right under the American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123, 9 I.L.M. 673, art. 4(1).
*199* See Filartiga v. Peña-Irala, 630 F.2d 876, 882. (2nd Cir. 1980). Stating that "there are few, if any, issues in international law today on which opinion seems to be so united as the limitations on a state’s power to torture persons held in its custody," id. at 881, the Filartiga court found the prohibition against torture to be a basic principle of customary international law: "The treaties and accords… as well as the express foreign policy of our government, all make it clear that international law confers fundamental rights upon all people vis-à-vis their own governments…[W]e hold that the right to be free form torture is now among them." Id. at 885.
*200* The Constitution states, states:
[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, § 2, cl. 2 (emphasis added). See generally Kathryn Burke, et al., Application of International Human Rights Law in State and Federal Courts, 18 Tex. Int’l L.J. 291 (1983).
*201* See U.S. Const. art. VI, § 2, cl. 2. See also Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, T.S. No. 58 (1980), reprinted in 8 I.L.M. 679-713 (1969), entered into force Jan. 27, 1980, art. 2. Treaties prevail over conflicting state law. Missouri v. Holland, 252 U.S. 416, 432 (1920). A treaty is ratified when the President signs it on the Advice and Consent of two-thirds of the United States Senate. U.S. Const. art. II, § 2, cl. 2.
*202* The U.S. has also ratified the International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, reprinted in 6 I.L.M. 368 (1967), adopted by the United States Sept. 8, 1992.
*203* U.S. Const. amend. VIII prohibits "cruel and unusual punishment."
*204* 136 U.S. 436, 447 (1890).
*205* 217 U.S. 349, 378 (1910). Justice McKenna’s majority opinion stated that "[t]ime works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth." Id. at 373.
*206* Estelle v. Gamble, 429 U.S. 97, 106 (1976).
*207* 356 U.S. 86 (deeming §401(g) of the Nationality Act of 1940 unconstitutional).
*208* Id. at 100-01.
*209* See Tribe, supra note 29, §15-9, at 1332.
*210* Mackey v. Procunier, 477 F.2d 877 (9th Cir. 1973).
*211* In the words of Justice Powell, "if it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional to confine the involuntarily committed—who may not be punished at all—in unsafe conditions." Youngberg v. Romeo, 457 U.S. 307, 316 (1982).
*212* 27 U.S. (2 Pet.) 253, 314-15 (1829).
*213* See Jordan J. Paust, Self-Executing Treaties, 82 Am. J. Intl. L. 760, 782 (1988) (concluding that all treaties are presumptively self-executing, but excepting those which, by their terms considered in context, require domestic implementing legislation or seek to declare war on behalf of the United States: "All treaties are supreme federal law, but some treaties, by their terms, are not directly operative.")
*214* Foster, 27 U.S at 314-15 (where Chief Justice Marshall analogized such a treaty to a contract that awaited congressional "execution").
*215* Restatement (Third) of the Foreign Relations Law of the United States § 111 cmt. h (1987). The intent of the United States determines whether an agreement is to be self- executing in the United States or should await implementation by legislation or appropriate executive or administrative action. Id. Persuasive evidence of U.S. intent includes "any statement by the President in concluding the agreement or in submitting it to the Senate for consent or to the Congress as a whole for approval, and of any expression by the Senate or by Congress in dealing with the agreement." Id.
*216* See, e.g., Richard Lillich & Frank Newman, International Human Rights: Problems of Law and Policy 71 (1979) ("At a minimum, [the Supremacy Clause] means that treaty obligations are automatically incorporated into U.S. domestic law, a situation that contrasts with that of most other domestic legal systems").
*217* Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), 1971 I.C.J. 16, 57.
*218* 242 P.2d 617 (Cal. 1952).
*219* Id. at 621-22. For a critique of the Sei Fujii decision, and the failure of federal courts to accommodate international law, most notably the United Nations Charter and the Universal Declaration, see Richard B. Lillich, The Role of Domestic Courts in Promoting International Human Rights Norms, in International Human Rights Law and Practice: The Roles of the United Nations, the Private Sector, the Government and Their Lawyers, 105, 130-31 (James C. Tuttle, ed., 1978). See also Virginia Leary, When Does the Implementation of International Human Rights Constitute Interference Into the Essentially Domestic Affairs of a State?, in International Human Rights Law and Practice, supra, at 15, 21. Leary concludes that "gross violations of human rights can no longer be considered a matter essentially within the domestic jurisdiction of the offending state under the U.N. Charter, although there are limitations on the permissible actions of the U.N. in response to such violations in the absence of the finding of a direct threat to international peace." Id.
*220* See People v. Mirmirani, 636 P.2d 1130, 1138 n.1 (Cal. 1981) (Newman J., concurring); see also F. Newman & D. Weissbrodt, International Human Rights: Law, Policy and Process 294 (1990) (citing Frank Newman, Interpreting the Human Rights Clauses of the U.N. Charter, 1972 Revue des Droits de l'Homme 283). Newman and Weissbrodt argue that the International Bill of Human Rights provides the authoritative interpretation of the more vague language of articles 55 and 56 of the United Nations Charter. Id. at 582. The greater specificity that the International Bill of Human Rights offers therefore rebuts any suggestion that its provisions may be considered non-self-executing due to vagueness. Id. This position is known as the Newman-Berkeley thesis. Id. at 582 n.14.
*221* Vienna Convention on the Law of Treaties, supra note 189, at art. 2(1)(d), and art. 19.
*222* Art. 4(2) of International Covenant on Civil and Political Rights ("ICCPR"), supra note 191, stipulates that State parties may not derogate from article 7: "[N]o derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision."
*223* See Vienna Convention on the Law of Treaties, supra note 189 at art. 53 (defining a peremptory norm as a norm from which no derogation is permitted); see also Nadine Strossen, Recent U.S. and International Judicial Protection of Individual Rights: A Comparative Legal Process Analysis and Proposed Synthesis, 41 Hastings L.J. 805, 816 (1990) (defining customary norms as "those that are so widely accepted by the international community that they are binding even on states that have not ratified treaties embodying them").
*224* Vienna Convention on the Law of Treaties, supra note 189, at art. 53.
*225* See Restatement (Third) of the Foreign Relations Law of the United States § 102 reporter’s n.6 (1987); see also David Heffernan, America the Cruel and Unusual? An Analysis of the Eighth Amendment Under International Law, 45 Cath. U. L. Rev. 481 (1996).
*226* 48 Revue Internationale de Droit Penal Nos. 3 & 4 at 208 (1977).
*227* See U.S. Const. amend. VIII ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted").
*228* As stated by Chief Justice Marshall in The Nereide, 13 U.S. (9 Cranch) 388, 423 (1815), in the absence of a congressional enactment, United States courts are "bound by the law of nations, which is a part of the law of the land."
*229* See Elizabeth Anderson, Value in Ethics and Economics 71 (1993).
*230* U.S. Const. amend. XIII, § 1.
*231* See The Civil Rights Cases, 109 U.S. 3, 33 (Harlan, J., dissenting).
*232* United States v. Rhodes, 27 F. Cas. 785, 788 (D. Ky. 1866).
*233* Hall v. Sims, District Court, 35 F. 152 (1888).
*234* Id. at 152-53.
*236* Id. at 154.
*237* See People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1271 (Nev. 1995).
*238* Id. at 1272-73.
*240* Id. Similar accounts are available in the context of the circus industry. See, e.g., Helen Johnstone, Chipperfield Admits She was Wrong to Whip Chimp, The Times (London), Home News, Feb. 8, 1999 (describing circus trainer Mary Chipperfield’s conviction for twelve counts of cruelty to an 18-month-old chimpanzee who was kicked and whipped and spent fifteen hours out of twenty-four in a darkened box).
*241* See George Christie & Patrick Martin, Jurisprudence 90 (2d ed. 1995).
*242* Aristotle, Animals are for Our Use, reprinted in Political Theory and Animal Rights 57 (Paul A.B. Clarke & Andrew Linzey eds., 1990).
*243* Id. at 56-57.
*244* Geza Teleki, They Are Us, in The Great Ape Project, supra note 1, at 301.
*246* Two investigators, posing as buyers, were offered five chimpanzees in one day in the markets of Istanbul. See Gareth Jenkins, Baby Chimps Starve in Booming Turkish Trade, The Sunday Times (London), July 5, 1998, at 20.
*247* Robert Liston, Slavery in America 32 (1970).
*248* John Henrik Clarke, Introduction to Tom Feelings, Middle Passage: White Ships/Black Cargo (1995).
*249* Liston, supra note 247, at 35-36.
*250* The term "chattel" symbolizes the parallel between the institution of human slavery and the exploitation between species; the word "cattle" is derived from "chattel." See Paola Cavalieri & Peter Singer, The Great Ape Project – and Beyond, in The Great Ape Project, supra note 1, at 304.
*251* Daggs v. Frazer, 6 F.Cas. 1112 (D. Iowa. 1849).
*254* Thomas D. Russell, Articles Sell Best Singly: The Disruption of Slave Families at Court Sales, 1996 Utah L. Rev. 1161, 1162 (1996).
*255* See Tessa M. Gorman, Back on the Chain Gang: Why the Eighth Amendment and the History of Slavery Proscribe the Resurgence of Chain Gangs, 85 Calif. L. Rev. 447 (1997).
*256* 7 Statutes of South Carolina, at 359-60 (Act of 1696, ch. 314). Barbara L. Bernier noted that castration was deemed a medical procedure, and state laws throughout the south permitted it to be performed by slaveholders. Barbara L. Bernier, Class, Race, and Poverty: Medical Technologies and Sociopolitical Choices, 11 Harv. Blackletter L. J. 115, 121 (1994). Bernier refers to Winthrop D. Jordan, White Over Black: American Attitudes Toward the Negro, 1550-1812, 154, 156 (1968), which explains the common practice as stemming from the perception of slaves as chattel to be controlled by their owners, and a method of both punishment and sexual control.
*257* William W. Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia, From the First Session of the Legislature in the Year 1619 (1823) 481 (Act of 1680, ch. 10).
*258* Kenneth Scott, The Slave Insurrection in New York in 1712, 45 N.Y. Hist. Soc’y Q. 43, 62 (1961).
*261* See William M. Wiecek, Part I: The Origins of the Law of Slavery in British North America, 17 Cardozo L. Rev. 1711, 1733 (1996).
*262* Id. at 1734; see also Arthur O. Lovejoy, The Great Chain of Being: A Study of The History of an Idea (1936).
*264* Winthrop D. Jordan, White over Black: American Attitudes Toward the Negro, 1550-1812 228 (1968).
*265* Id. at 218-21 (examining Linnaeus’s 1758 work Systema Naturae).
*266* Id. at 220-21.
*267* See Thomas Gossett, Race: The History of an Idea in America 69-70 (1997).
*268* William M. Wiecek, supra note 261, at 1734-35 (quoting David Hume, Of National Characters (1753-54 ed.), in Essays Moral, Political, and Literary (1898)). Similarly, Dr. Samuel Morton in Crania Americana stated that skulls from different races consistently differed from ancient times. Morton expounded the idea of race as a separate species. See D. Marvin Jones, Darkness Made Visible: Law, Metaphor, and the Racial Self, 82 Geo. L. J. 437, 481 n.178 (1993).
*269* See, e.g., J. A. C. Thomas, The Institutes of Justinian: Text, Translation and Commentary 6 (Book I, Tit. II) (1975) ("long-practised customs endorsed by the acquiescence of those who observe them take on the mantle of law").
*270* See The Slave, Grace, 2 Hag. 94 (1827) (stating that "ancient custom is generally recognised [sic] as a just foundation of all law").
*271* See The Antelope, 23 U.S. (10 Wheat) 66, 115 (1825) (noting that the slave trade, and a fortiori slavery itself, "has claimed all the sanction which could be derived from long usage, and general acquiescence").
*272* See Wiecek, supra note 261, at 1775.
*273* See generally The Antelope, 23 U.S. (10 Wheat.) 66 (1825).
*274* Regarding the influence of Barbados on mainland slave codes, see M. Eugene Sirmans, The Legal Status of the Slave in South Carolina, 1660-1740, 28 J. S. Hist. 462, 462-73 (1962). Beginning with the premise that Africans were "brutish," the Barbadian 1661 slave code imposed a violent police regime. Id.; see also Richard S. Dunn, Sugar and Slaves: The Rise of the Planter Class in the English West Indies, 1624-1713 283-342 (1972).
*275* See A. Leon Higginbotham, Jr., In the Matter of Color, 189 (1978)
Gradually, the legislature began to realize that slaves were subjected to brutal acts by their masters, whether in the form of physical injury or failure to provide adequate provisions, and the legislature then made some efforts to protect the slaves. The tension between the master’s absolute right to control his slave and a societal concern for the minimum well-being of slaves and for maintaining a viable slave system becomes apparent. However, the statutes were devoid of any enforcement power to protect the slave from his master’s abuses.
*276* See Wiecek, supra note 261, at 1778-79.
*277* See id. at 1779.
*278* See id. at 1743, (citing Article 91, The Laws and Liberties of Massachusetts 4 (Max Farrand ed., 1929)).
*279* Leviticus 25:46.
*280* Leviticus 25:44.
*281* Wiecek, supra note 261, at 1741-42 (quoting Simeon E. Baldwin, Theophilus Eaton, First Governor of the Colony of New Haven, in 7 New Haven Colony Hist. Soc’y Papers 11 (1908)).
*282* See Wiecek, supra note 261, at 1753.
*283* Id., at 1754.
*285* See generally Reports of Cases Determined in the General Court of Virginia (Thomas Jefferson ed., 1829) (reporting forty-two cases, twenty-three of which involve slavery).
*286* See Letter from Emanuel Downing to John Winthrop, 1745, in Documents Illustrative of the History of the Slave Trade to America 7 (Elizabeth Donnan ed.).
*287* See T.H. Breen, A Changing Labor Force and Race Relations in Virginia 1660- 1710, 7 J. Soc. Hist.J 3, 18 (1973) (stating that, despite the possibility for a few decades "to overlook racial differences, a time when a common experience of desperate poverty and broken dreams brought some whites and blacks together," "[b]y 1700, whites had achieved a sense of race solidarity at the expense of blacks. Negroes were set apart as objects of contempt and ridicule. The whites, even the meanest among them, always knew there was a class of men permanently below them").
*288* Wiecek, supra note 261, at 1713.
*289* Dred Scott v. Sandford, 60 U.S. 393, 404-05 (1856).
*290* Id. at 407.
*292* Contrast Frontiero v. Richardson, 411 U.S. 677 (1973) with Muller v. Oregon, 208 U.S. 412 (1908).
*293* See Barbara L. Bernier, supra note 256, at 120.
*294*Todd L. Savitt, Medicine and Slavery: Diseases and Health Care of Blacks in Antebellum Virginia 293 (1978).
*295* Barbara L. Bernier, supra note 256, at 118-119.
*296* Id. at 119.
*297* Id. at 120 (explaining that, "[a]s a result of Jefferson's efforts, vaccinations became an established procedure in Virginia and ultimately throughout the United States").
*298* Id. at 119-120.
*299* T.D. v. N.Y. State Office of Mental Health, 650 N.Y.S.2d 173, 177 (1996).
*300* Ronald Dworkin, Law’s Empire, supra note 36, at 390.
*301* See, e.g., Prepared Statement of Richard Lattis, Senior Vice President and General Director, Zoos and Aquarium Wildlife Conservation Society[and] President, American Zoo and Aquarium Association, Before the House Committee on Resources Subcommittee on Fisheries Conservation, Wildlife and Oceans, Federal News Service, June 20, 2000. Testifying on H.R. 4320 - the Great Ape Conservation Act - Richard Lattis stated that the American Zoo and Aquarium Association [AZA] mission is "to support membership excellence in conservation, education, science and recreation." Id. Collectively, AZA institutions "teach more than 12 million people each year in living classrooms, dedicate over $50 million annually to education programs that focus on, among other things, the devastating effects of the loss of vital species habitat and the illegal trade in endangered species parts and products, invest over $50 million annually in scientific research and support over 700 field conservation and research projects in 80 countries." Id. Lattis also stated, "AZA member institutions have established the Species Survival Plan (SSP) program- longterm plan involving genetically-diverse breeding, habitat preservation, public education, field conservation and supportive research to ensure survival for many threatened and endangered species, including all the great apes--chimpanzees, gorillas, orangutans and bonobos (a.k.a., pygmy chimpanzees)." Id.
*302* Id. (testifying that "the AZA Ape Advisory Group scientifically manages apes in zoological environments and promotes primate conservation in the wild.")
*303* See What is the Great Ape Project's policy on sanctuaries for non-human great apes?, The Great Ape Project – GAP FAQ, Section 3: Principles and Policies, 3.2 http://www.greatapeproject.org/gapfaq.html (visited Nov. 17, 2000).
*304* See generally Gary L. Bostwick, Comment, Taxonomy of Privacy: Repose, Sanctuary, and Intimate Decision, 64 Cal. L. Rev. 1447 (1976). Repose refers to privacy as (i) freedom from unwanted stimulii; (ii)sanctuary, which is protection against intrusive observation; and (iii) intimate decision, which is the autonomous making of life choices. Id. The importance of the interest in sanctuary can be brought into sharp focus when we consider the now-famous Mende group, captives from the mutineered ship "Amistad." Although they were not made slaves, the group’s members lived in a New Haven jail for two years, ostensibly for their own safety. Jean Thompson, Where the Walls Speak, The Baltimore Sun, Mar. 1, 1998, at 1R. There, they were tutored in English speech and etiquette, and examined by phrenologists, who believed that the shape of one’s head revealed intellect and personality. Id. Plaster casts were made of their heads, followed by wax figures designed for a travelling exhibit. Id. The jailer, meanwhile, collected 12½ cents from thousands of tourists who came to have a look at the captives. Id. The U.S. District Court declared them free in January 1841, a decision upheld by Supreme Court in March of the same year. Id.; see also Jean Thompson, Tracing the Steps of Amistad Survivors, The Baltimore Sun, Mar. 1, 1998, at 1R (describing the Mende group’s subsequently restricted lives in Connecticut, where slavery continued until 1848).
*305* See What is the Great Ape Project's policy on great apes kept in zoos?, The Great Ape Project – GAP FAQ, Section 3: Principles and Policies, 3.3 http://www.greatapeproject.org/gapfaq.html (last visited Nov. 17, 2000).
*306* See What is the Great Ape Project's policy on sanctuaries for non-human great apes?, The Great Ape Project – GAP FAQ, Section 3: Principles and Policies, 3.2, http://www.greatapeproject.org/gapfaq.html (last visited Nov. 17, 2000).
*307* The Great Ape Project defines a sanctuary as an institution where the needs, interests and rights of the apes come first, and where the facilities, long-term financing, expertise and resources necessary to satisfy those needs, interests and rights are provided. See id.
*308* 457 U.S. 307, 314 (1982).
*309* See Prepared Statement of Richard Lattis, supra note 301. Lattis called the severe endangerment of non-human hominids’ lives "an ecological and societal problem of enormous proportions. Id. It is a problem of political unrest compounded by unregulated resource exploitation through logging, mining, farming and poaching. It is also a problem which is not specifically limited to the African continent as similar situations have arisen in Brazil, Sumatra, and Borneo, where the orangutan population has declined by 90%. Id.
*310* John Rawls, A Theory of Justice 141 (Cambridge: Harvard University Press, 1971); see also Sapontzis, supra note 3, at 108 (for a similar analysis with respect to relations among species).
*311* The Declaration on Great Apes was first published in The Great Ape Project: Equality Beyond Humanity (Paola Cavalieri & Peter Singer eds., 1994). See What is the 'Community of Equals’?, The Great Ape Project – GAP FAQ, Section 3: Principles and Policies, 3.1, http://www.greatapeproject.org/gapfaq.html (last visited Nov. 17, 2000). The long-term goals of the Declaration supporters are: (1) a United Nations Declaration of the Rights of Great Apes; and (2) the designation of guarded territories to enable chimpanzees, bonobos, gorillas, and orang-utans to live freely in their own ways. See What is the Great Ape Project?, The Great Ape Project – GAP FAQ, Section 3: Principles and Policies, 1.1, http://www.greatapeproject.org/gapfaq.html (last visited Nov. 17, 2000).
*312* In arguing for this right, The Great Ape Project does not advocate throwing the gates open at every zoo. See What is the Great Ape Project's policy on great apes kept in zoos?, The Great Ape Project – GAP FAQ, Section 3: Principles and Policies, 3.3, http://www.greatapeproject.org/gapfaq.html (last visited Nov. 17, 2000). The overarching concern is that liberty not be denied for the purpose of human gratification. Id. The concerns of the individual in confinement are considered paramount. Id. A sanctuary conducive to future safety, designed in such a way that privacy and autonomy are maximized, may be the best possible life for great apes who could not be expected to revert successfully to survival in the wild. Id. Recognition of the liberty interest would mean that in the future, non-human hominids would not be captured or bred for human purposes of experimentation, entertainment, or public display. Thus, if non-human hominids can voluntarily place themselves in view of the public, there should be a sign clearly saying that these are the last generation of great apes in zoo captivity. See id.