Normalizing the Preposterous

Opera is an acquired taste, probably because it’s so preposterous, but if you want to introduce someone to its charms, so to speak, you start with Puccini. The music is gorgeous and the plots are a hoot. There’s Manon Lescaut, with that tragic scene in the desert just outside New Orleans, and La Bohème, the ultimate tearjerker about starving artists and lost love, and Tosca has that woman jumping to her death from the parapet. Without the music most of this might make audiences groan or giggle, but the music saves it all, and makes it all rather fine. Puccini moved on to Madama Butterfly, set in Japan as the United States was attempting to open up trade relations with those folks, which isn’t that dramatic, but the doomed love story is. Puccini, like Shakespeare, never could come up with his own dramatic narratives. Butterfly was based on a story by the American author David Belasco, as was the Puccini opera that followed – La fanciulla del West (The Girl of The Golden West) – commissioned by the Metropolitan Opera in New York and premiered on December 10, 1910, with the Met’s Enrico Caruso singing the role of Dick Johnson. Puccini wrote that role for him, specifically, and this is Puccini’s cowboy opera. Actually it’s about the California Gold Rush, opening at a mining camp at the foot of the Cloudy Mountains. No, there are no Cloudy Mountains out here, just as there is no desert outside New Orleans, and watching crusty old prospectors belt out heroic arias in perfect Italian is a bit disconcerting – but the music is stunning. Sometimes it’s best to simply accept the preposterous, and smile, because what comes with it is so damned good.

Lerner and Loewe gave the same sort of thing a go in 1951 with their musical Paint Your Wagon – set in the California wilderness in 1853, the Gold Rush days, with the requisite crusty old miner, Lee Marvin in this case. Everyone was singing up a storm too, about being born under a wandering star and noting how they call the wind Maria and so on. It was just as preposterous as Puccini, skating the edge of absurdity, but the 1969 film version was irredeemable, no matter how catchy the tunes. Lee Marvin and Clint Eastwood, as hard as they tried, really couldn’t sing a lick, and Clint Eastwood had to sing, or half-growl, that wistful number that starts with “I talk to the trees, but they don’t listen to me…”

It went downhill from there, but maybe that’s where Clint Eastwood got the idea of talking to that empty chair, on stage at the 2012 Republican Convention in Tampa, pretending Obama was sitting in it. He talked to the chair, but it didn’t listen to him? Even back in 1951, however, Lerner and Loewe must have worried about that song. Sooner or later, some cynical wag in the audience, tipsy from a bit too much wine at his pre-theater dinner, was going to shout out – “Of course they don’t listen to you! They’re trees, you fool!”

Sometimes it’s best to simply accept the preposterous, but sometimes that’s asking too much. Humans do like to anthropomorphize most everything – your computer has a mind of its own, and you wonder what deep thoughts your dog is really thinking, and some nights the city itself seems menacing, and Mother Nature is pretty pissed off these days – but that’s all nonsense. Cowboys singing heroic arias, in perfect Italian over lush harmonics, are one thing, and that’s kind of cool in its way, but grown men talking to trees, and being disappointed that they don’t answer, is pushing it. Hobbits talk to Ents and that’s about it. That Lerner and Loewe song is only metaphor, a way of expressing how we’re all on our own in this indifferent world. Inanimate objects, and animals with not much cognitive ability and without the means of thought, which is language, are not people. They’re not persons. They don’t have personhood, so Clint Eastwood really shouldn’t have been talking to that chair. The clever can all too easily become the preposterous, and it’s dangerous to mess around with the idea of personhood.

Humans do like to anthropomorphize most everything anyway, and now corporations are people, and legally, that’s not a metaphor, and that’s trouble, but Slate’s Dahlia Lithwick argues that’s not the half of it:

Last week, the Supreme Court agreed to hear Hobby Lobby Stores Inc. v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius – a pair of cases probing whether the religious rights of a for-profit corporate entity allow it to refuse to provide for employees insurance that would include certain forms of birth control. In so doing, the court may now be forced to reckon with the question of whether the same corporate personhood that includes the right to free speech also encompasses rights to religious conscience. In other words, Corporate Personhood is back! And this time, it’s got God on its side.

But corporations aren’t America’s only new people. States and the U.S. Congress are also attempting to expand the definition of personhood in a different direction: Anti-abortion activists are attempting to redefine “personhood” to include the potential personhood of a fertilized egg. If the so-called personhood bills and ballot initiatives across the country succeed, a day-old zygote would have the same legal status as a person, with sweeping implications for criminal law, reproductive rights, and access to birth control.

We may be well on our way to normalizing the preposterous, from both ends:

What does it mean for actual human “personhood” – as well as for reproductive rights and corporate control – that, if the far right succeeds in stretching these two legal fictions to their illogical extremes, American “personhood” will begin at conception, diminish somewhat at birth, and regain its force upon incorporation?

That is skating at the edge of the absurd, but Lithwick argues that this had to happen:

In 2010 the Supreme Court determined in Citizens United v. FEC that corporations can be treated as persons for First Amendment speech purposes, although the notion of corporate personhood certainly long predated the case. While the final outcome of Citizens United didn’t rest solely on the idea that “Corporations are people, my friend” – that was Mitt Romney’s gloss – it certainly celebrated the notion that corporations have complex moral, political, and social needs that must be expressed in the same ways as the rest of us, you know, human beings.

There is almost no way now for the Supreme Court to analyze the Religious Freedom Restoration Act claims or the First Amendment claims raised in the two challenges to the birth control mandate without contemplating the prospect of corporate personhood. Certainly the two religious families that own the businesses challenging the birth control mandate argue that the law’s bar on government efforts to “substantially burden a person’s exercise of religion” applies to corporations as well as people. Hobby Lobby operates more than 500 arts-and-craft stores and employs about 13,000 people. It operates “in a manner consistent with biblical principles.” (It’s closed on Sundays, for instance.) Conestoga Wood Specialties is a Pennsylvania woodworking firm run by a Mennonite family that employs almost 1,000 workers.

At least some appellate courts have been more than open to extending the corporate personhood metaphor as unfurled in Citizens United to include religious convictions as a component of corporate personhood. As the appeals court judge in the Hobby Lobby challenge explained in his majority opinion: “We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.”

There’s only one problem with this:

Because there is no way for the courts to assess which religious convictions are heartfelt and which are merely opportunistic, there can be no limiting principle here. If for-profit secular corporations have religious beliefs, companies run by Christian Scientists can be free to limit medical treatment and those run by Jehovah’s Witnesses could object to paying for blood transfusions. Artificially created constructs that exist to shield owners from lawsuits will be able to shield owners from compliance with basic civil rights laws.

In short, it’s very dangerous to mess around with the idea of personhood, especially on what might be called the front end:

Across the land, the personhood movement has been attempting for several years now to confer the status of legal personhood to fertilized eggs, granting them all the same civil rights as actual people, and thus effectively banning abortions and some forms of birth control. The federal version of the proposed personhood bill would grant a “one-celled human zygote” all of the “constitutional attributes and privileges of personhood.”

It is a movement that has dramatically split the anti-abortion community into camps that seek either to champion the crisp intellectual purity of declaring that life begins at fertilization or to merely pragmatically push for earlier bans on abortion. The fracture within the anti-abortion community hasn’t stopped a slew of GOP members of Congress, various presidential hopefuls, and state activists from pushing for personhood legislation each year. Even when it makes no legal or rhetorical sense, it appears to be a powerful talking point.

These folks are on a roll, so watch out:

Conferring human attributes such as religious conviction and the capacity for embarrassment on a corporation is dangerous. Conferring human rights upon a fertilized egg is too. Progressives can be just as guilty as conservatives when it comes to this sort of metaphorical personhood creep, by the way. A suit filed this week in New York seeks to protect four chimpanzees as “persons” too. But whatever you may think of the ultimate goals here, when you designate a nonperson as a person, you devalue what it means, as a legal and policy matter, to be human.

This isn’t a Puccini opera or a Broadway musical, as this is tribal politics:

Hobby Lobby and Conestoga are ultimately so worrisome because they fuse together two of the most dangerous right-wing civil rights obsessions of our times: the ambition of large, for-profit corporations to see themselves as people, with faith, convictions, and consciences, and the attempt of citizens, using their own science and their own facts, to declare when legal personhood begins, and then impose universal laws based on those beliefs. The cases are a collision of two very insidious legal metaphors – that personhood begins when any one religion says it does and that religious personhood can be vested in corporations in ways that can be forced on workers.

It simply cannot be the case that in a country of 319 million people, we are ready to recognize zygotes and Walmart as legal “persons.” We can protect animals and unborn babies and corporations without also embodying them with a humanity they don’t possess. Turning everything and anything into a “person” ultimately also serves to turn persons into things.

Yep, leave that stuff on stage, or in Tolkien’s Middle Earth, where the trees talk.

At the New Yorker site, Amy Davidson says it’s time to give it a rest:

Hobby Lobby is arguing that it counts as a person whose religious expression, according to the Religious Freedom Restoration Act of 1993, shouldn’t be “substantially burdened” by a law unless there is a “compelling government interest.” … But the burden of complying is missing and the compelling interest is clear. The owners of Hobby Lobby aren’t the ones taking Plan B.

The government, in a reply to the company’s SCOTUS filing, quoted the opinion of a judge who, writing about a related case, said that the mandate would not “encourage (the corporations’) employees to use contraceptives any more directly than they do by authorizing (the corporations) to pay wages.”

Personhood isn’t an issue, as health benefits are no different that wages, and companies can’t tell their employees how to spend the money they pay them – yet – and Scott Lemieux adds this:

One argument that has been made again and again by supporters of the legal challenges is that the religious consciences of employers are being burdened so that employees can get “free” contraception. But this is an erroneous argument that misapprehends the basic concept of employer-provided health insurance. Contraception provided by health insurance isn’t “free” – it’s earned. Companies get substantial taxpayer subsidies for partly paying employees in health insurance instead of cash. In exchange, this insurance has to be comprehensive enough to provide value to the employee. Women getting basic health-care needs covered by insurance they’re receiving as compensation are not receiving any kind of free ride.

This point underscores just how weak the legal challenge to the mandate is. The employers in question are claiming that there’s a major religious freedom issue at stake – depending on whether employees obtain contraception through direct wages or through the insurance employers get tax benefits for paying employees with instead. But there isn’t. The “burden” imposed by the mandate is utterly trivial, and the argument that it violates Religious Freedom Restoration Act should be rejected by the Supreme Court.

There really is no reason to mess around with the idea of personhood here, but some just can’t resist. It’s such a cool idea, and as Lithwick noted only in passing, this isn’t confined to the odd right-wing civil rights obsessions of our times, as the left seems enamored with personhood too:

On Monday, the Nonhuman Rights Project filed papers suing the state of New York for the emancipation of a privately owned chimpanzee named Tommy. They plan to file two more suits on behalf of another privately owned chimp named Kiko, and a pair of research chimps called Hercules and Leo.

The group uses the legal argument of habeas corpus, which requires a person under detention to be brought before a court, especially to end unlawful imprisonment. It was notably used by the antislavery movement to define human beings as legal persons, not legal property. Chimpanzees, because of their awareness of self and of passing time, should also have rights to bodily liberty, the group argues.

That is pushing it, even if the prospect of seeing these three chimpanzees sitting quietly in court next to their human lawyers, as they argue their habeas corpus motions, is amusing. Were Puccini alive today he might have to write another opera, about this – or not. He knew he was pushing it with his Bel Canto Cowboys. An aria for a chimpanzee would be absurd, but Ben Richmond wonders about how far one can take this argument:

The group’s essential argument is that a chimpanzee can be recognized as “legal person” without biologically being a person. Just as corporations can be people under the Fourteenth Amendment, “legal personality may be granted to entities other than individual human beings, e.g. a group of human beings, a fund, or an idol.” The memorandum of law for Tommy’s case cites a case in New Zealand where the Whanganui River Iwi was designated as a legal person, as well as two separate examples from India where a mosque and an idol were granted legal personhood. If Tommy can be recognized as a legal person then, the case argues, he deserves to be set free under the common law writ of habeas corpus, unless the owner of Santa’s Hitching Post, a tourist attraction where Tommy is kept, can prove that “their imprisonment of Tommy is legally sufficient.”

And Clint Eastwood can talk to the trees too, and in Time’s Science section, Bryan Walsh argues here that this suit is “potentially revolutionary” from a legal perspective:

Habeas corpus allows someone being held captive to seek relief by having a judge force his captors to explain why he is being held. It’s frequently used in cases alleging unlawful imprisonment, including those of detainees in Guantánamo. The lawsuit makes reference to a famous 1772 English case that dealt with an American slave named James Somerset, who had escaped from his owner in London, been recaptured and was set to be returned from slavery. … With testimonials from experts like Jane Goodall, [the suit] makes the case that chimpanzees have qualities that allow them to have the very basic legal right not to be imprisoned. It’s not that chimpanzees are the legal equivalent of human beings. Rather, the court filing – obtained by James Gorman at the New York Times – argues that chimpanzees are enslaved, and that the courts already recognize that slavery is wrong.

Michael Todd simply sighs:

“Personhood” is a big step beyond just calling for an end, say, to animal experimentation or pigeon shoots.

A lot of observers, including some in the animal rights movement itself, see it as quixotic or loaded with a raft of unintended, and potentially unwelcome, consequences. But we already know that corporations are people, possibly even having rights like freedom of religion, so what might have once seemed absurd now merely seems a stretch.

Yeah, but at Above the Law, Elie Mystal sees the logic here:

Whatever you think of the cognitive abilities and emotions of chimps, I think we can all agree that they are different from, say, chairs. They’re different from cars. Treating these animals as mere property is simply wrong. We do, of course, have a class of persons in this country who don’t have maximum rights but are more than mere property. They’re called “children,” and most of them have considerably less intelligence than a chimpanzee. So there is precedent for extending legal protection to “human-like” creatures who throw poop and change the channel during the last two minutes of a football game.

Some might find that analogy compelling, but that curmudgeonly law professor Stephen Bainbridge just isn’t buying it:

The problem, I believe, is that attempts to define the debate in moral or philosophical terms ignore the basic fact that the rationale for corporate personhood sounds in neither. Instead, it is based on practicality and utility. Put another way, we treat the corporation as a legal person because doing so has proven to be a highly efficient way for real people to organize their business activities and to vindicate their rights. Put yet another way, we treat the corporation as a legal person because it is a nexus of contracts between real persons – which is something no animal can ever be.

That is simply to say that if you’re going to mess around with the idea of personhood, you really ought to think about why you’re making the stretch. Does it serve some useful purpose? And consider this:

If the Nonhuman Rights Project is successful in New York, it could be a significant step toward upending millennia of law defining animals as property and could set off a “chain reaction” that could bleed over to other jurisdictions, says Richard Cupp, a law professor at Pepperdine University in Malibu, California, and a proponent of focusing on animal welfare rather than animal rights. “But if they lose it could be a significant step backward for the movement. They’re playing with fire.”

Playing around with personhood is always playing with fire. Chimpanzees are people too? Corporations are people too? Day-old zygotes are people too? What about that river tribe in New Zealand and that mosque in India? Are trees people too? Are chairs? Those last two caused Clint Eastwood no end of trouble, when people laughed derisively at the preposterous. Puccini made the preposterous glorious, wrapping it in amazingly gorgeous music, but there’s no soundtrack here, and maybe that’s the problem. We either need some stunning music, right now, or we need to begin to laugh derisively, often and loudly. And since we won’t be getting any music with any of this, the choice is obvious.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to Normalizing the Preposterous

  1. Rick says:

    Some semi-unconnected thoughts:

    (1) Here I am, in my late sixties, and I still seem to learn something new every day! You mean to say that Kingston Trio hit, “They Call the Wind Maria” is not an old traditional folk song, but was actually written by (gasp!) Lerner and Loewe?

    I’m flabbergasted! I should have known, since, to begin with, it has neither the structure nor the authentic sound of the old west — which may help explain why it’s always been one of my least-favorite of Kingston Trio songs.

    (2) “…the prospect of seeing these three chimpanzees sitting quietly in court next to their human lawyers, as they argue their habeas corpus motions, is amusing.”

    Are the chimps dressed in little coats and ties, like in the movies? Because if they aren’t, especially if they’re naked, can’t they be cited with contempt of court, just like a real person would be?

    (3) “Chimpanzees, because of their awareness of self and of passing time, should also have rights to bodily liberty, the group argues.”

    So does Cooper, my dog. When I say his name, he looks up at me, knowing I’m referring to him; and in fact, when I forget when it’s time to feed and walk him, he reminds me. I would not, however, think this comes close to making him a person.

    (4) “It simply cannot be the case that in a country of 319 million people, we are ready to recognize zygotes and Walmart as legal ‘persons.’ “

    So does this mean Walmart might someday marry a zygote?

    (5) In fact, working backward here to controversies of days gone by, if the idea of a corporation having religious convictions somehow eventually gains currency, would it be too late for the Catholic Church to get in on some of that action?

    Still, neither of those should be allowed to happen, since, as Amy Davidson points out, the “owners of Hobby Lobby aren’t the ones taking Plan B” — and nor, for example, are the Catholic hospitals. After all, the U.S. Constitution protects the rights of actual people, not wannabe people.


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