In 1971, seven Asian elephants were captured from the wild, imported to California, and sold for $800 each to a safari park. As if to reinforce the indignity of taking these magnificent beings from their natural habitats and depriving them of lifelong relationships with members of their herd, their captors named them after Snow White’s seven dwarves.
Today, only four of these elephants survive. One of them, ironically named Happy, has been imprisoned for the last 40 years at the Bronx Zoo. She is now 49 and lives in a small, barren space that experts have said cannot meet the needs of any elephant. Until 2002, the zoo also imprisoned Grumpy, euthanizing her after two other elephants attacked her.
Happy was the first elephant to demonstrate self-awareness via the well-established mirror self-recognition test. In late 2018, she also became the first elephant to be the subject of a habeas corpus hearing. Happy’s case, brought by the Nonhuman Rights Project, will soon come before an appellate court in New York City. She has the chance to reclaim her dignity through recognition of her legal right to liberty and release to an elephant sanctuary.
Today, Happy is considered a “thing” with no rights that we as humans have any legal obligation to respect. That needs to change. The just course is for courts to recognize Happy as a rightsholder (in legalese, a person) and order her release to an environment suited to her needs.
That is why this week I submitted an amicus brief in support of Happy’s petition to be recognized as a holder of rights under the law. At a time when we are finally beginning to grope with America’s grotesque four-century history of racial discrimination, it cannot pass notice that enslaved African-Americans used the common-law writ of habeas corpus in New York to challenge their bondage and proclaim their humanity, even when the law otherwise treated them as mere things.
So too, women in England were once considered the property of their husbands and had no legal recourse against abuse until the Court of King’s Bench began in the 17th century to permit women and their children to utilize habeas corpus to escape abusive men. Indeed, the overdue transition from thinghood to personhood through habeas corpus must be deemed among the proudest elements of the heritage of that great writ of liberation, from its roots at Runnymede with Magna Carta’s signing in June 1215.
Imprisonment is the correct word to describe Happy’s solitary confinement in an environment where the only choice allowed her is the direction in which to stare from whichever part of the exhibit she’s made to stand in that day. Given all we know about who elephants are, it’s time to acknowledge this imprisonment is unlawful and to bring elephants into the circle of rightsholders.
Over a century ago, in 1903, humans used the newly harnessed power of electricity to kill an elephant in Luna Park at Coney Island for the public’s amusement. According to a news report at the time, Topsy died with “real benevolence in her eyes and kindness in her manner,” a detail that no doubt masks the torture unjustly inflicted on her but that will nonetheless surprise no one aware of the vast body of evidence documenting the undeniable sentience of these remarkable beings, their extraordinary cognitive complexity, their self-aware autonomy, their complex social and emotional lives, their capacity to care and grieve, and their warmth toward the species that continues to subject them to grievous harm and suffering.
Let 2020 be the year New York rejects elephants’ thinghood, recognizes their right to liberty, and celebrates the power of the law to nudge societies toward more embracing visions of justice.
Happy can recognize herself in the mirror — can we?
Tribe is the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard and the co-author, most recently, of “To End a Presidency: The Power of Impeachment.”
