Saturday, September 24, 2016

Who Speaks for the Trees?

On the corner of South Finley and Dearing Streets in Athens, Georgia, the small college town where I grew up, there is a tall white oak, and a small weathered stone plaque that reads:

For and in consideration of the great love I bear this tree and the great desire I have for its protection, for all time, I convey entire possession of itself and all land within eight feet of the tree on all sides.

—William H. Jackson

The Tree That Owns Itself is a beloved local landmark, one I visited many times as a child. Standing under its branches provoked a subtle awe, a respect not usually granted to mere plants. The Tree was imbued with rights, not an object but a subject, animate, existing with a kind of inviolability and autonomy. It had also achieved that elusive quality that so many self-possessing humans desire: fame.

The Tree got its first taste of notoriety in a front-page Athens Weekly Banner article published on August 12, 1890, under the headline “Deeded to Itself,” although in truth, the Tree had been in self-possession for more than half a century by that time. Another half-century after the Banner article was published, the original oak, so beloved by Mr. Jackson, fell after an unusually strong storm. The community rallied to plant a seedling cultivated from one of the Tree’s acorns; the new oak has thrived in the same plot since 1946. Thus, as noted on another small plaque, the Tree That Owns Itself is technically “the scion” of the Tree That Owns Itself. Nevertheless, the Scion of the Tree inherited its parent’s unusual claim to independence. This claim is not necessarily binding, because Georgia common law, like that of all other states, does not recognize the capacity of trees to hold property, since plants, like nonhuman animals, have the legal status of things and thus lack the right to have rights. Yet the Tree’s self-possession is an accepted part of local identity and lore and has never been challenged in court. In the minds of Athenians, the Tree owns itself and its plot.

Perhaps in the near or distant future, the Tree That Owns Itself will not be regarded as a charming curiosity but as a political pioneer, the embodiment of an imaginary and ethical leap that foreshadowed what will seem, from the future’s transformed vantage point, the inevitable and necessary expansion of rights to the natural world. In 1972, law professor Christopher Stone provided a sketch of what such a future might look like in a groundbreaking scholarly essay, written on a whim after he found himself arguing “the unthinkable” in a class lecture. Still widely read more than forty years later, Should Trees Have Standing? doesn’t go so far as to contend that all flora should be given a deed to the soil in which they are planted—like our arboreal outlier in Athens—but it does systematically and dispassionately make the case for granting baseline “legal rights to forests, oceans, rivers, and other so-called ‘natural objects’ in the environment—indeed, to the natural environment as a whole.”

It’s not as strange as it may sound, for the uncanny entity that is the nonhuman “person” is already omnipresent. “The world of the lawyer is peopled with inanimate rights-holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, and nation-states, to mention just a few,” Stone reminds us. Corporations were granted legal personhood in 1886—and oddly, it happened in an almost backhanded way. The Supreme Court did not directly rule on the matter. In a headnote that wasn’t part of the formal opinion in Santa Clara County v. Southern Pacific Railroad Co., the court reporter (who had sympathies with the railroads) noted that chief justice Morrison Waite affirmed the personhood of corporations under the Fourteenth Amendment in a passing comment as proceedings began. Of course, railroad attorneys and business interests had been opportunistically demanding for years that the “equal protection” clause of the amendment designed to secure equal rights for former slaves be twisted to apply to corporations. The Santa Clara trial affirmed their Gilded Age aspirations as fact, even though the suit was decided on other grounds: “defendant Corporations are persons within the intent of the . . . Fourteenth Amendment.” Later cases built on that thin precedent. Today, corporations are entitled to an ever-expanding array of constitutional protections, from the Fourth Amendment ban on warrantless search and seizure to the First Amendment guarantee of free speech.

“Convincing a court that an endangered river is ‘a person,’” Stone acknowledges, “will call for lawyers as bold and imaginative” as Southern Pacific Railroad’s counsel—and, one might add, considerably less mercenary. That’s because extending rights to other forms of nonhuman life entails fighting to counteract the rights of corporations and the remarkable power personhood allows profit-seeking ventures. The intrepid lawyers and citizens who have taken up this gauntlet challenge our legal and economic systems, while chipping away at the moral framework of human separateness and superiority that has evolved and solidified over millennia.

by Astra Taylor, The Baffler |  Read more:
Image: Kathy Boake