egd: egd says:

Dave N: Since Mr. Spock is half-Vulcan, half-human, does he only have half-standing?

Sarcastro: Spock is screwed, but his great-grandchildren may have standing!

In contrast to Sarcasto, I would submit that Spock would have a leg to stand on.

No. Spock’s great-grandchildren are still screwed: One drop rule.

We can’t recognize the rights of any martians. It will harm my marriage by undermining the sanctity of humankind.

Besides, there is nothing in my Bible about God creating martians, so they don’t exist. The deviants claiming to be martians are making a choice. The are plenty of Bible-based programs that can help martians become human again of they will only reject their sin.

If Johnson v. Eisentrager’s language gets clarified away from substance and towards jurisdiction, as may happen in the Court’s alien-combatant jurisprudence, a door could be open to a similar interpretation and clarification of Roe v. Wade’s language.

The rules in the United States are different from Canada, and within the United States the rules are different from state to State.

The judrisdiction of the U.S. courts is set by Article III, Section 2. That Article never mentions the word “person”.

A line of cases beginning with Johnson v. Eisentrager and including U.S. v. Verdugo-Uriquidez and U.S. v. Alvarez-Machain stand for the proposition that extraterritorial aliens are not “persons” as that term is used in the Bill of Rights. After all, Roe v. Wade concluded that the Due Process Clause lacks “prenatal application”, parroting the language Johnson v. Eisentrager used when it said the Clause lacks “extraterritorial application”. As the Court put it in United States v. Verdugo-Urquidez,

Indeed, we have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States. In Johnson v. Eisentrager, 339 U. S. 763 (1950), the Court held that enemy aliens arrested in China and imprisoned in Germany after World War II could not obtain writs of habeas corpus in our federal courts on the ground that their convictions for war crimes had violated the Fifth Amendment and other constitutional provisions. The Eisentrager opinion acknowledged that in some cases constitutional provisions extend beyond the citizenry; “[t]he alien . . . has been accorded a generous and ascending scale of rights as he increases his identity with our society.” Id. at 339 U. S. 770. But our rejection of extraterritorial application of the Fifth Amendment was emphatic:

“Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. Cf. Downes v. Bidwell, 182 U. S. 244 (1901). None of the learned commentators on our Constitution has even hinted at it. The practice of every modern government is opposed to it.”

Id. at 339 U. S. 784. If such is true of the Fifth Amendment, which speaks in the relatively universal term of “person,” it would seem even more true with respect to the Fourth Amendment, which applies only to “the people.”

Similarly, in Roe v. Wade, the Court specifically rejected consideration of “well-known biological facts” in determining what is and is not a “person.” It decided the matter, quite similarly to Johnson v. Eisentrager, based on two considerations: (a) an analysis of the meaning of the word “person” as used in the text of the various constitutional clauses, together with (b) an examination of the history of the acceptability of the challenged practices in United States.

If the fact that the Due Process clause lacks application to a class (what Roe v. Wade actually held) means the class isn’t “persons”, then it follows that extraterritorial aliens are also not persons. Yet they, like fetuses in state courts, can also have standing.

Personhood, not citizenship, is the sine qua non of standing. Though expressed in terms of speciation in the opinion above, the fundamental proposition is that a Martian is not a “person,” just as a horse is not a person. Others have noted the issue of personhood and 1st Amendment standing. It may yet be our last line of defense against PETA’s push to turn our pets into wards of the State, not to mention excluding the elephant citizens of Vatican City from our courtrooms.

We are demonstrably struggling with questions about access both to courts and government services even where illegal immigrants in the U.S. are concerned. Clearly their standing in court is not simply a function of their citizenship elsewhere, as you asserted in your initial comment.

Your reference to Roe v Wade does nothing to advance your exclusivity argument either. Quite the contrary, really. There is a substantive difference between a pregnant woman bringing suit and a pregnant woman bringing suit on behalf of her fetus, and Roe v Wade did not begin to address, let alone settle, the issues which derive from such a distinction. We’d already be living in a different legal world if they had.

Indeed, it is telling that despite the inevitable Roe v Wade questions put to judicial nominees, the Pro-Life movement shifted focus a decade or so ago, and has been actively engaged in promoting legislation which explicitly establishes the fetus as a person in law. In the Unborn Victims of Violence Act of 2004, for example:

[T]he term `unborn child’ means a child in utero, and the term `child in utero’ or `child, who is in utero’ means a member of the species homo sapiens, at any stage of development, who is carried in the womb.’.

Legal personhood was the basis upon which the murder of a pregnant woman was officially transformed into the double homicide of a woman and her unborn child. That transformation is also being advanced incrementally by similar, sometimes superficially insignificant, changes in legal language, where even measures designed to assist a pregnant woman have also become assistance to a woman and her unborn child. Such changes are what will, in fact, undo Roe v. Wade once there is a sufficient body of law to argue that the interests of the unborn child, as a separate individual, may or may not coincide with those of the mother. It is at that point that the State, and by extension, the courts, will have the same legal interest in the unborn child’s protection that it does in every other minor child. It will also be in a position not only to dispute the wardship of a mother, whose standing will not be a function of citizenship at all, but to intervene in prenatal care. The State necessarily has an interest in all persons within its borders, citizens or not.

Citizenship itself, of course is no guarantee of standing in the first place, and while you may believe that it should be the font from which all else flows, and which renders all else irrelevant, that is clearly not the current state of the law.

Mithras:
Those dastardly minorities, always wanting something.

Thank goodness we have institutions like the Senate to protect them from enforced tyranny like socialized health-care.

I’d prefer that they attain their rights by this route rather than by some of the other means that have been used by persecuted minorities through the ages.

Those dastardly minorities, always wanting something.

Syd Henderson: Lightcon says:PersonFromPorlock: On the other hand, doesn’t this precedent mean that any actual Martian who lands in Ontario can be shot out of hand? Could be awkward.
Depends whether it was Martian season and the person with the gun had a hunting license.

There *is* no season for Martians and they are not a ‘specially protected mammal’ (assuming martians belong to class mammalia). So no hunting license would be available or required.
Except, that you could not hunt martians in a provincial park, since you need a hunting license to have a firearm in the park and you can only hunt within the limits of the license you possess.
And you can’t hunt in most municipalities, since hunting is, per se, forbidden with the municipality limits. So that would be improper use of a firearm.
And of course, up here, you would need to have your Firearms Acquisition Certificate, and Firearms registration in order.

But you would be really dipped in it, if your Martian were actually a representative from Mars (Take me to your leader!) and thus an ‘Internationally Protected Person’….Hhhmm…shoot it quick! Before it can say ‘Take me….etc’, so you can deny having the mens rea of intending to harm an Internationally Protected Person…You were just hunt’n!
Better yet, call the Men in Black.

“What other legal system could be so far removed from reality, as ours is, as to reason that ‘plaintiff can not file a suit because he is a martian’ ?”

No. Madame Justice Epstein was entirely realistic within the structure of the laws and rules of civil procedure in Ontario. If he *is* a martian, then he cannot claim the other persons conspired to harm him by asserting he was not a Martian, since they could only be liable if they conspired to harm *a person*, and he is NOT a person for the purposes of Ontario law.

That result, of course, ignores the fact, that under the laws of Ontario, non-humans, even if sentient, have no standing to sue.
I can see at least 3 grounds for appeal from this finding. Thank DoG he wasn’t my client. No points for wondering why he was pro se.

tim maguire says:

It seems to me the second reason, in addition to possibly being boring, negates the first reason. Reason #1 assumes the truth of plaintiff’s Martianhood. Reason #2 dismisses plaintiff’s assertion of Martianhood outright.

No, the first assumes the truth. The second dismisses the claim as being frivolous because even if he is a martian he cannot prove any damages as against the defendants, from their actions to deny his ‘martianhood’ on the same grounds as #1: within the structure of present law, they can only conspire together to do illegal acts for the purpose of causing damage to a person, or legal acts maliciously for the purpose of causing damage to a person, and *he* is, by his own admission, not a person. (Apparently the Claim of conspiract was not particularly well pleaded…)

*******
For those Americans who think that we Ontario lawyers get all the good stuff, elsewhere in the Endorsement, Madame Justice Epstein notes that the third case is against the CIA and others. (Problems with forum non-conveniens, sovereign immunity etc. etc. not adverted to!). She did not strike it out: it was not before her to be struck.

This Endorsement was, naturally, the object of some interest and was published in the Lawyers Weekly (trade newspaper) shortly after its release, and ISTR also in the Ontario Reports. The Lawyers Weekly interviewed the plaintiff. He was quite happy, as she had acknowledged his ‘martianhood’. Elsewhere in the Endorsement, she notes that the question of his competency had been raised, and she found that he was quite competent to present his claim, pro se, and in fact had done so quite well. (Even thought, as we see, he is not quite connected to reality.)

About six weeks later, I attended a Trial Scheduling Court before Justice Epstein. In the Toronto district, these Courts are a cattle-call of all set-down actions, to schedule a final pre-trial conference and set trial dates. They take place in the largest courtroom in Toronto and 200 plus lawyers attend.

Working her way down the list, Justice Epstein called a matter forward. About 10 lawyers stood up. She made a comment about whether this was a lawsuit, or a pickup basketball game. The lead lawyer responded something to the effect: “Your honour, this is a complex medical malpractice action. There are however no allegations that the plaintiff is not a person, nor does she claim to receive radio messages through her teeth.”

Everyone in the room broke up. It sounded more like a basketball game than a courtroom. Eventually things quieted down and Justice Epstein said “So it’s actually a simple matter. I can start you next week.” Which broke the place up again as she was actually scheduling trials out a year or more in advance and for trials over 5 days about 2 years! She *always* starts by saying ‘You are all supposed to be ready for trial. Who wants to start on Monday?’. Of course, there have never been any takers!

See also Cordwainer Smith’s Underpeople:
Derived from animal DNA: Not human.

And of course, “Jerry was a Man.” by Heinlein:
Rich lady funds lawsuit to prevent termination
of superannuated superchimp.

Theoretical, for now.

This progressively got out of hand as the original citizenry clamored for the “constitutional rights” of the artificial “person”. Today, most all rights and citizenship flow from the federal government, rather than being apart from it as originally intended.

(But the Martian part of this topic is just nutty.)

Let the logic twisting begin.

As to reason 1, standing, is it correct as a matter of law that standing is determined by assuming every fact pled is true, even when the supposed fact cannot be true? I doubt it, since if that were so, many complaints could survive a “standing” challenge merely by pleading facts that aren’t true. There should be more analysis of this. Reason 1 is really just a rhetorical retort, pointing out that the claim as pled defeats standing; it ought go on to say that since the claim as pled cannot be taken as true, there is standing, because plaintiff is a human being.

As to reason 2, it is entirely conclusory, a bunch of adjectives and attitudes. Instead, it should say that because the fact necessary to achieve standing (the plaintiff is a human being) inescapably defeats the claim (which is based on the claim that plaintiff is not a human being), the complaint defeats itself and thus is frivolous.

Judge, my client wasn’t even there the night of the shooting. Even if he was there, he didn’t have a gun. Even if he did have a gun, he’s not the one who shot the victim. Even if he is the one who shot the victim, it was an accident, the gun just went off. And anyway, he was insane at the time when he shot the SOB.”

So here, the judge is just saying to the plaintiff: “If you’re a martian, you lose because you don’t have standing. If you’re not a martian, you lose anyway, because this is just ridiculous.”

This post was mentioned on Twitter by fortinbras: Rampant Speciesism http://bit.ly/2wxWFH...

Since Mr. Spock is half-Vulcan, half-human, does he only have half-standing?

I suppose that, in his case, the vast sweep of the law would become merely half-vast.

Dave N: Since Mr. Spock is half-Vulcan, half-human, does he only have half-standing?

Sarcastro: Spock is screwed, but his great-grandchildren may have standing!

In contrast to Sarcasto, I would submit that Spock would have a leg to stand on.

PersonFromPorlock: On the other hand, doesn’t this precedent mean that any actual Martian who lands in Ontario can be shot out of hand? Could be awkward.

Depends whether it was Martian season and the person with the gun had a hunting license.