Constitutional Personhood for Genetically Enhanced Animals: A Political Question

Genetic engineers may eventually use transgenic technology to transfer genes to produce human traits in other species of animals, and thus may develop animals with “enhanced” characteristics, such as intelligence. Such genetically enhanced animals (or more likely their advocates) may ask the government to re-draw the legal boundary of personhood separating human beings from the non-human animals, which currently lack fundamental constitutional rights. This essay argues that any expansion of constitutional personhood to include a genetically enhanced animal is a “political question” -- a policy and value choice that properly belongs to state or federal political branches of government, not with the federal judiciary. The question becomes what process we should use to resolve the issue, rather than a question of what is the correct substantive choice of moral personhood. Such decision is best made by the political process because it is based on standards and morals containing arbitrary rationale. This essay first considers the technology and incentives to create animals approaching personhood. After considering and evaluating various moral theories to guide constitutional personhood, the essay turns to questions of law and fact in determining a “person” and the judicial protection of rights. This essay also considers the analogous situations of previous personhood determinations related to slavery, abortion, existing animal rights, and corporations. Finally, the consequences of determination of constitutional personhood for a genetically enhanced animal are evaluated with respect to the general public, the “owner” of the genetically enhanced animal, and the animal itself.