Wesley J. Smith is, as usual, all het up about animal rights activism - this time on Constitutional Law grounds. I can hardly understand what he’s trying to say, but it makes little sense (again, as usual).

A few years ago, animal rights/liberation activists successfully convinced Florida voters to grant pregnant pigs the state constitutional right to have enough space within which to turn around. Now, that may be a perfectly fine and humane animal husbandry policy. But, pigs do not belong in human constitutions.

Human constitutions should be about guaranteeing human rights and establishing our democratic methods of governance. Animal protection measures belong in legal statutes. In this way, it isn’t the animals having a “right,” but rather, humans having the affirmative obligation to act toward them in appropriate ways.

But, of course, protecting pigs was not the point of that exercise. Blurring the crucial distinction between animals and humans was the real agenda.

Though I agree with Smith that animal-rights groups often go too far, I’m having a hard time seeing this as some sort of conspiracy. But Smith is aghast at the potential consequences. In the post linked above, he quotes his own editorial on the same subject:

If we are to avoid “speciesism,” [animal rights advocates’] thinking goes, we must give up our belief that life has ultimate value simply because it is human. This objective standard, in their thinking, being steeped in religion or outmoded notions of natural law, must be replaced by a “rational” approach that accords value to each individual — animal or human — based primarily on the level of the individual’s perceived level of consciousness or the ability to feel pain.

One expression of this view is the bioethical theory of “personhood,” according to which rights are based on whether one’s “quality of life” is sufficient to qualify for membership in the “moral community” made up of sentient, self-aware “persons.” Since value is based on gray matter and not genome, non-sentient humans — including newborn infants, Alzheimer’s patients, the severely retarded, and the comatose, among others — would be excluded from this community. At the same time, some “nonhuman animals” would be included in the moral community, including dogs, pigs, elephants, dolphins, whales — perhaps all mammals.

The consequences of such a radical shift in core societal beliefs would be profound. As animal rights author and lawyer Steven M. Wise recently told the Village Voice, establishing legal personhood for animals would grant them “the [same] fundamental rights that we humans have.” This would mean, according to Wise, that “If you wanted to do something to violate the animals’ rights, at the very least they should have a guardian appointed to represent their interests, the way a human child or any severely impaired human would.”

Of course, it is a long way from granting limited constitutional rights to pregnant pigs to expanding coverage of the Bill of Rights to all animals. But it would definitely be a first step on the proverbial thousand-mile journey.

This is a fair characterization of the thinking of some animal-rights advocates (and of many bioethicists who do not go so far as to include animals in the sphere of personhood). But it is a far cry from accepting mental capacity as a criterion for moral personhood to imagining that writing animal rights into a state Constitution will establish animals as persons in the legal sense. Though this is a much-honored tactic of the anti-choice right wing, who have been feverishly writing fetal-protection statutes into the law wherever they can manage it, in the expectation that calling a fetus a person will make it a person, it is just as irrational in the case of fetuses as it is in the case of animals. The entire enterprise (if indeed this is what animal-rights activists are attempting to do, as Smith imagines) is logically backward: for “rights” for these entitities to make any sense, you must first demonstrate that they are moral persons; then you can talk about what legal status they ought to have. But merely imposing certain legal regulations on the treatment of a given entity does not make it a moral (or a legal) person. You can mandate legal protections for non-persons (and we do so all the time: flags, parklands, national monuments, dead bodies, etc.). You can demand “humane” or non-harmful treatment for non-persons as well, as again we do in many cases (pets, farm animals, etc.). But simply declaring that we think certain entities should be treated in certain ways does not mean we think those entities are persons. Even declaring that we think they should be treated in the way that they would have to be treated if they were in fact persons does not make them persons. (You can treat something as if it was a person even when it’s not one.) The claim that a given entity is a person is logically prior to the claim that the entity enjoys the rights of personhood by virtue of being a person, and nothing can change that.

Strangely, Smith seems to believe that legal constitutions must not contain anything that does not pertain to specifically human rights.

Granting animals constitutional rights would cheapen these charters. Indeed, it would undermine constitutions as exclusively establishing and protecting human rights.

But it’s clear that constitutions do much more than that. They establish the structures of government and the law, stipulate terms, powers, and privileges of offices, decree relations between the constitutional entity and other entities, declare and regulate the rights of subjects, and many other things. Democratic government may embody certain notions of human rights, but nothing about human rights is invoked in stipulating that a President shall serve for 4 years, or 6, or 7, or what have you. Whether the government includes a unicameral or bicameral legislature is of great political significance but has nothing to do with personhood and almost nothing to do with rights. Smith states that animal-protection is all right in the statutory laws, but takes on some sort of ominous moral significance if written into the constitution; this seems not only a distinction that makes very little moral difference, but one founded on a delusion about what a constitution is. And the fact that many US states use their constitutions as a kind of repository for laws passed by referendum (California’s state constitution is over 200 pages long and has been amended over 400 times), without trespassing on any grave moral concepts in doing so, makes it clear Smith is working from assumptions that have nothing to do with legal reality.