CHAPTER ONE

Property Is Not an
Unalienable Right

Devise and Conquer: The Legal Foundations of Empire

In Lancaster County, Pennsylvania, residents have been trying to protect their community and environment from the Atlantic Sunrise pipeline since 2014. They organized under the banner “Lancaster Against Pipelines,” and on October 17, 2017, twenty-three members of the group were arrested for blocking a backhoe from tearing into land owned by a group of nuns, the Adorers of the Blood of Christ.

The pipeline is intended to transport natural [sic] gas from frack wells scattered throughout the commonwealth to export terminals on the coast. The nuns’ land, and an outdoor chapel they’d built on the part of their land seized through eminent domain, is in the path of the fossil fuel conduit. Eminent domain is government sanctioned appropriation of personal property for a supposed public use with compensation to the owner.

According to the York Daily Record, “The Adorers claim that the developer’s seizure of the rights to the easement via eminent domain violated their religious freedom, since reverence for the land was among their deeply held spiritual beliefs.”¹ The nuns had filed suit against the Federal Energy Regulatory Commission (FERC) for permitting the violation of their religious rights, but on this October day, as that law-suit went unanswered by the court, part of the shrine was dismantled and trenches dug, after the peaceful protestors were removed.

In July 2018, the US Third Circuit Court of Appeals ruled against the nuns’ claim that their religious rights were being violated. The community group Lancaster Against Pipelines put out a press release announcing the decision. They wrote, in part, “It’s crystal clear from this ruling that the Natural Gas Act supersedes even our most fundamental Constitutional rights.”

This confrontation reveals power dynamics that are important to understanding how our system of law arms wealth and disempowers those with less of it (or none). It’s a contest between anonymous humans pushing for the Atlantic Sunrise pipeline, the residents opposing it, and the nuns whose land was taken lawfully and given to a corporation whose owners have plans to profit from the confiscated property.

The first dynamic to notice is that the law transferred control of the commandeered property to a private business corporation. The corporate directors had no plans to put the land to use for a public benefit. They intended to use it to generate profit by exporting gas to foreign markets. Eminent domain handed owners of corporate property the legal right to take possession of the nuns’ property.

The second dynamic to notice is that, although rights vested in property under US law exceed the rights inherent in people and living systems, the law also distinguishes between wealth and mere possessions. The amount of property and whether it is personal property or privileged property makes all the difference.

The third dynamic to notice is that the law found greater value in the property rights of the owners of corporate property than the nuns’ right of ownership to their land. The nuns’ property and the preservation of their right to it do not serve the priorities of power and empire as much as advancing the corporation’s interests.

Herein is revealed the difference between privileged property and nonprivileged personal property. If all property were the same in the eyes of the law, the nuns might have expected the courts to protect their right to it. Whom the law works for and whom it works against are a matter of wealth.

The fourth dynamic to notice is that the rights of the residents of Lancaster County, including the ones arrested for their protest, were irrelevant to the legal permitting of the pipeline. Because they had no property interest in the land, the protesters had no “standing” before the law to have their grievances heard about safety, aesthetics, lost historic significance of disturbed Native American burial grounds in the path of the pipeline, and other perceived harms. Their only legal status was that of trespassers on condemned land and nuisances to the pipeline workers. The law didn’t represent their rights or interests.

The fifth dynamic to notice is that preserving the natural world did not factor into any of the legal proceedings. Nature is not a subject in the eyes of the law. It is an object, a collection of items to be owned and not a rights-bearing entity to be protected. If it is property, it may convey to the owner certain rights, but it has none itself.

Building Empire under the Radar: Because Nobody Wants to Say That’s What’s Going On

We need to untangle the braid of interacting rights in this case to understand where law begins and justice ends. My thesis is that federal constitutionalism serves wealth, not people and communities, and that the underlying logic used to rationalize this system of law and government is intrinsically and ethically flawed. To expose these flaws, let’s start with a simple assertion: Ownership of specific property is not an unalienable right.

Not all of us are born equally advantaged with wealth. Unalienable rights are distributed equitably to all. We can be voluntarily alienated from our property, as through gifting, sale, or lease. We can also be involuntarily alienated from property through taxation, garnishment, condemnation (eminent domain), theft, and other means. Hence, property is not an unalienable right.

Sometimes, as in the assertion of eminent domain against the Adorers of the Blood of Christ, the enforcement of law reflects this fact. The tenuousness of the right to personal property is made very clear. But the law’s deference to all sorts of rights in property is so integral to American constitutionalism that loss of property rights generally only occurs when the rights of one party conflict with the interests of another, wealthier party. Overriding this deference requires the full collaboration of government and wealth. In a conflict between personal property and privileged property, the law and court precedent favor privileged rights over personal rights. This is the big secret that everybody knows but no one talks about.

American law developed in a culture of colonial expansion. It intentionally protects the accumulation of privileged property (wealth). There is no wonder in this. Such accumulation is the engine of empire. Protection of personal property by law follows the logic of empire. Small fortunes may grow to larger ones, so they are to be protected. But that paternalism diverges from the absolute when doing so interferes with more effective means of acquiring and centralizing control over resources. Placing resources under the jurisdiction of law’s authority is how empires are built and is the purpose of legal protections for amassed property. The authority and rights developed over the years for large business corporations have been magnified for no other purpose than to facilitate this acquisition and centralization of power.

There are inadequate enforceable rules for safeguarding the earned wages and assets of less affluent people against the juggernaut of commercial empires both large and small. Today’s business corporation falls into both the large and small categories. Some are able to compete on a global scale, almost as nations without a land base. When law is used to protect the privileges of empire by declaring wealth and its uses exempt from public law and thus not responsible for harming the rights of individuals, communities, and the whole planet, then we are all are at risk.

The misapplication of eminent domain robs people of their certainty of justice, because to the average person property is property, and the law should not favor one possession over another. Like so many other confrontations between unalienable rights and rights vested in property, eminent domain exposes an undemocratic arrangement. An unacknowledged partnership exists between government and wealth in the guise of corporate power. The legalized expropriation of personal property, labor, public resources, and services when it benefits private accumulation of profit and wealth demonstrates what much of American law is all about.

The project of empire building is accomplished through legally sanctioned mechanisms for the appropriation of other people’s property, labor, savings, and rights. The more primitive methods involve physical violence. Domestically, those means have been largely replaced by procedural violence inflicted through agencies, departments, authorities, and the maddening bureaucracy of the courts.

The official misuse of eminent domain is only the most blatant example of how rights vested in property rule over all other considerations. The personal right to property lodged in each natural person yields to the powers lodged in the privileged property of wealth and exercised through the courts. The conflict between personal property and privileged property is a battle in which unalienable rights arrive disarmed by law, which protects privileges vested in property.

Those who gain possession of privileged property can invade the larder of common rights through many doors. They gain entry through expropriation, appropriation, inheritance, rent-seeking,² usury,³ garnishment,⁴ seizure, assumption, trade, litigation, annexation, conquest … in fact, theft. Setting aside illegal and unscrupulous ways of achieving wealth, we can ask: “Is the accumulation of property by legal means an unalienable right?”

The answer has nothing to do with legality. It has to do with basic logic. Because privileged property can be increased, then the legal rights conveyed by it can be increased. If those rights are unalienable, then unalienable rights can be compounded. If so, we would have to conclude that some unalienable rights are not equal rights. By extension, because some people can have more unalienable rights than others, then some unalienable rights could be withheld legally from the majority or a disfavored minority. The concept of unalienable rights would then be meaningless. The more rational conclusion is that unalienable rights are in fact equal for all and that property is not an unalienable right.

Unalienable rights, unlike wealth, cannot be compounded. They are not able to be increased by accumulation. They cannot be purchased. But the rights conveyed by privileged property facilitate an exponential increase in the amount of deference law pays to people in possession of it. Wealth accumulation isn’t just an increase in leisure and luxury. It represents a substantial decrease in rights for everyone else. A bias in the laws and Constitution of the US makes it so.

Over time, and under color of law, rights vested in property, which I’ll shorthand as the rights of property, have eroded the natural rights of everyone but the propertied class. Rights conveyed to the wealthy through privileged property are prized above all others under American law. There is a reason. The Federalists, who insisted on a strong central government and not a democracy governed by We the People, had the building of a continental empire clearly in mind. They made provisions in the Constitution for the addition of new territories and states. They made other provisions to accelerate and defend minority ownership of most of the property, along with the control of lawmaking and governance by that same minority.

All of this is in sharp contrast to the aspirations of American revolutionaries and the expectations of newcomers to the United States. It’s antithetical to the idealism celebrated in songs and parades on the Fourth of July. What we have is the antithesis of what we want. The reason more than two hundred communities in the United States have enacted local community bills of rights that challenge wealth-privileging legal doctrines is that people have begun to wake up from the sinister spell that insists this is the way it has to be.

Lines in the Sand: Property Is Ink on Paper

Let’s ask the most basic question: Where does property come from?

From outer space, it’s not possible to see national borders or property lines on the earth’s surface. Our blue-green home doesn’t look at all like a Rand-McNally atlas or a municipal plat. State and town boundaries are invisible. Property lines are undetectable.

So if property in land and political borders can’t be seen empirically, where do they exist? The answer: They exist only in law and in the minds of people who believe that law reflects reality.⁵

To illustrate how “real property” becomes real in our heads, let me tell you a brief story about the colonization of the Western Hemisphere by Europeans. When Christopher Columbus returned from his exploratory venture to the Americas, he visited the monarchs of Portugal and Spain. Both kingdoms wished to claim the newly found lands for themselves. The dispute between them was settled by Pope Alexander VI. He drew a line on a crude map, from the North to the South Pole, and cut South America in two. He declared that to the east of the line, where present-day Brazil juts to the right into the Atlantic Ocean, Portugal would rule; to the west of that line, it would be Spain.

The pope’s pen was as powerful as a magic wand. The spell he cast was slow to take hold, but the ink on that map changed the course of history. It had no immediate physical effect on the planet. Yet that ink had the indelible effect of creating a law-based rationale for invading conquistadors. Meanwhile, it left indigenous people by the millions, and the whole of the natural world, without rights and without protection. The Doctrine of Discovery espoused by Pope Alexander VI in his “Inter Caetera” papal bull of 1493 legalized conquest, plunder, and exploitation.

Justifying Injustice: The Emperor’s Philosophers

Thirty-three years later, Francis Bacon published his Novum Organum, laying out the basis for scientific inquiry. He imagined that human beings could escape the limitations nature imposed on us by deducing its laws from observation. Where Pope Alexander VI drew a line and made a law that severed the physical world into parts and parcels, Bacon intended to dissect all of nature, own its secrets, and use those laws to similarly enrich whoever could command them. Bacon is quoted as saying: “My only earthly wish is … to stretch the deplorably narrow limits of man’s dominion over the universe to their promised bounds … [Nature will be] bound into service, hounded in her wanderings and put on the rack and tortured for her secrets.”⁶

The rituals of mechanical intervention into nature, like the pope’s ritual of dividing up the planet into estates, made world-spanning conquest possible. “I am come in very truth leading you to Nature with all her children to bind her to your service and make her your slave,” Bacon is purported to have said. “The mechanical inventions of recent years do not merely exert a gentle guidance over Nature’s courses, they have the power to conquer and subdue her, to shake her to her foundations.”⁷ These comments summarize the imperial spirit of the age.

Now, in the twenty-first century, we begin to see how both humanity and nature have been shaken and the bonds of equality and community severed. The world has been reduced to a matrix of possessions held together by a tangle of laws defining who owns what (and who owns naught). The pope’s ink on a map became a point of contagion for a political idea that now rules the world. The laws of possession separate the haves and the have-nots, making community into an atomized cloud of competition rather than a bond of mutual aid.

Similarly, Bacon’s extraction of mechanical rules from nature has severed humanity from nature’s community. The privatization of nature and other societies became the obsession of a culture experimenting with altering its place in the world. Many today predict a terrible endgame, when the laws of nature and human laws clash.

In the age of conquest, it was law as much as gunpowder that helped Europeans conquer whole continents. The law of boundaries, borders, enclosures, and property, armed with the distilled and lifeless laws of nature, had a hypnotic effect on European culture. A whole civilization was blinded to the horror and harm it would do.

No thought was given by Pope Alexander VI to the cascade of injustices his pen stroke would precipitate. The lives of the people already living in the lands he cavalierly assigned to Spain and Portugal were dismissed as irrelevant. There was no anticipation of the future clear-cutting of the Amazon jungle, the centuries of war, oppression, revolution, and sadness that the stroke of a pen would catalyze. The pontiff and his favored monarchs imagined only the wealth and power the lawful privatization of the Western Hemisphere would convey to them.

In the second volume of his work on inequality, Jean-Jacques Rousseau wrote that

Another philosopher, John Locke, wrote that “government has no other end, but the preservation of property.”⁹ A hundred years later, American revolutionaries such as Thomas Paine when he wrote Common Sense and Thomas Jefferson when he wrote the Declaration of Independence had other aspirations. For them the purpose of government is to secure unalienable rights, including the right to one’s own labor and the product of it, and the right of the people to engage in self-government without deference to the priorities of wealth. But in America and in the nations around the globe whose social contract is rooted in conquest and colonialism, the ethics of power and possession prevailed.

Workers and the Law Serve Wealth

Understanding the distinction between personal property and privileged property is necessary to further illustrate why the accumulation of property is not an unalienable right. Going back to early American sources, we find Benjamin Franklin corresponding with the wealthiest man in the American colonies, the financier of the Revolution, Robert Morris. He wrote, “All the property that is necessary to a man for the conservation of the individual and the propagation of the species is his natural right, which none can justly deprive him of; but all property superfluous to such purposes is the property of the public, who by their laws have created it, and who may therefore by other laws dispose of it whenever the welfare of the public shall demand such a disposition.”¹⁰

Let’s be clear about whether there is a right to privileged property and where belief in that right comes from. Then let’s ask if there is a right to one’s personal property.

In all cases, law creates property. We aren’t born with it. Whether it is the nuns’ land and chapel in the woods or the pipeline company’s commandeered right-of-way through their sanctuary, law and government decide who owns what. That goes for all types of property. Because all property exists subject to legal consent, law can either recognize a claim of ownership or deny it. What law cannot legitimately deny is the right to be free of servitude, where the fruit of one’s labor belongs to another. What law cannot legitimately assert is that the value of the wages of servitude, in whole or in part, belongs to the master of the worker in pursuit of wealth. But, as we see, law readily and constantly does both. The Federalists who devised that law conflated the right of the wealthy to be free from community governance with the right of all people to be free of servitude. In further service to the opulent minority, the Federalists then denied freedom from servitude as a general right.

Let’s consider the case of earned wages for work done. American law has acknowledged a right to be free from involuntary servitude, including but not limited to slavery, since adoption of the Thirteenth Amendment in 1865. Section 1 of the amendment says that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

Prior to adoption of that language into the Constitution, ownership of one’s own labor was not recognized as a right. Although hailed as the end of slavery in the United States, the Thirteenth Amendment didn’t make freedom from involuntary servitude a recognized unalienable right. It allowed the enslavement of people convicted of crimes. With no cue from the amendment’s language, judges have also decided that it allows government to impose involuntary military conscription on those unable to find a legal escape hatch.

We’re examining the question of servitude to illustrate the difference between personal property and privileged property. The one, the right to own and control one’s own labor—that is, the use of one’s own body and mind to produce added value and thereby profit—is unalienable. It’s not the added value, the property itself, that is unalienable. It’s the liberty from labor for the benefit of another that is unalienable.

Liberty is one of three specific examples of unalienable rights mentioned in the Declaration of Independence. Servitude subtracts liberty from the person and is a direct violation of a fundamental right. But when rights are bestowed upon the property itself, as when corporate property becomes the repository of Bill of Rights protections, then law acts to protect additive acquisition (privileged property). It’s that word involuntary that so clearly reveals that the Thirteenth Amendment was never intended to end the legal advantages of masters over workers, or to guarantee freedom from servitude as a constitutionally protected right. The essence of unalienable rights is that they cannot be separated from the person, not even voluntarily. By including the word “involuntary” in the amendment, servitude of poor people to wealthy people was preserved as a legally allowable arrangement.

Even though labor can no longer be stolen lawfully from a worker through enslavement, the laborer can still be persuaded to “voluntarily” waive rights to fair compensation in exchange for employment. The law allows it. What can be sold, surrendered, or volunteered is not by law unalienable. And thus, in the eyes of the law, freedom from servitude is not an unalienable right.

Accumulation of privileged property (wealth) requires the confiscation of value from the past and future industriousness of many others. Legalized servitude makes wealth possible. Possession of privileged property, such as a corporation, affords its owner the legal tools to protect wealth from redistribution by the community at large, from which the wealth flows.

Thus law creates a one-way gated pump for work converted into added value to flow away from its human producers and into privileged property, from which only the propertied minority is authorized to withdraw.

Legal scholar Morris R. Cohen wrote,

Once personal constitutional protections are waived by private contract, public law and the protections of the Bill of Rights are powerless to intervene. The employee may be required to surrender freedoms of speech, assembly, privacy, and religion, and other rights on the job as a contractual condition of employment. Each unalienable right becomes alienable. Each conditional right becomes moot. Rights of persons are made subordinate to rights in corporate property. Private law (as noted earlier, law related to contracts and corporations) is given deference over public law (which sets policies and places sanctions on anti-social behavior. It deals with issues of general concern to the community at-large). Minority interests trump general rights.

The worker’s right to wages is limited and maxed out by whatever minimum wage (or lack thereof) is set in his or her political jurisdiction. Beyond that nominal regulation, the employer and not the worker or the law decides whether that right includes a paycheck adequate to cover the necessities of life. Ownership of privileged property gives the employer this power to decide.

When the worker’s income is taxed, there’s no assurance that his or her priorities will be represented in budgeting how the collected revenue will be spent. Often, the portion of wages taken by government will serve the interests of the employer and others similarly in possession of privileged property, and not those of the worker. There is no inherent reason for this. There is a bias in the law. A viable economy would still be possible if unalienable rights took precedent over property amassed as wealth. Empire, however, might not be possible.

Unequal Protection: The Myth of Equality before the Law

Law creates property in all its forms by sanctioning its existence. But how the law treats personal property contrasts sharply with how it treats privileged property, as we are beginning to see.

The species of privileged property have proliferated unchecked for a century and a half through modification of the law. From simple interest on loans to compounding interest; from mineral rights to intellectual property rights; from “naming rights” to copyrights; from stocks and bonds to future profits; from proprietary rights to corporate rights; from legal standing to engineered legal precedent—the number of institutionalized legal privileges for wealth has expanded with no sign of stopping.

It matters how all of this is understood. Adam Winkler, professor of constitutional law at UCLA School of Law, has written an entertaining book titled We the Corporations: How American Businesses Won Their Civil Rights. The author tells the story from the droll perspective of victimized corporations struggling for justice and how they gained constitutional rights from the Supreme Court. He compares the pursuit of legal advantages for wealthy people and their corporate property to a civil rights movement. It is a clever device. But Winkler makes a more serious historical observation that, whereas it only required that the wealthy ask for those rights for their chartered property, it took decades of abolitionist struggles, a civil war, and three constitutional amendments to free African Americans from the status of rightless property.

A laughably baseless interpretation of the Fourteenth Amendment let the Supreme Court change corporate property into a person with constitutional protections that rival those afforded to real people. That was in 1886, thirty-four years before the Constitution was amended to recognize the right of women to vote. To this day, women lack an equal rights amendment. Corporations have been guaranteed equal rights with men under the Fourteenth Amendment for over a century.

The lesson here is that the American system of law ensures that wealth has access to the Supreme Court to protect its rights, whereas ordinary people have no automatic entrée into the halls of justice to secure their rights.

IN THE LAST PAGES of his book, Winkler tells the story of Mora County, New Mexico, and the Mora Community Water Rights and Self-Government Act of 2013. It’s an ordinance I had a hand in drafting and shepherding to adoption at the request of community members and the county commissioner, John Olivas. Winkler holds our ordinance up as an example of how we might push back against the hegemony of wealth and the privatization of the federal Bill of Rights.

In a region where water is scarce and widespread hydraulic fracturing (fracking) was being proposed, county residents grew concerned. Fracking uses immense quantities of water to force natural gas out of the ground. In the process, the water is tainted with poisons and not reusable. That’s what prompted them to contact CELDF and eventually enact their ordinance in 2013.

The county law declared that, because water is indispensable to life, it is an unalienable right. It declared the corporation’s property interests in natural gas, its mineral rights, not to be unalienable. And it held that unalienable rights supersede the inferior rights in property.

Later that same year, the Independent Petroleum Institute of New Mexico and a couple of similarly interested individuals sued Mora County for adopting an ordinance banning the extraction of fossil fuels within the county. The lawsuit claimed that the ordinance violated the corporation’s First, Fifth, and Fourteenth Amendment rights. It was a civil rights suit against the county.

It was all but preordained that without the overriding guidance of conscience and with a near-sacred sense of obligation to precedent, a judge would eventually overturn Mora’s water rights ordinance as a violation of the civil rights of a corporation. And that’s what happened. In federal district court, it was not the people’s right to water but the mineral rights belonging to the corporate property and the corporate property’s rights to free speech, due process, and equal protection of the law that prevailed.

There was no appeal. A well-funded political campaign to oust the commissioners who enacted the ordinance succeeded in replacing them with industry-friendly commissioners who walked away from the defense of the people’s right to water.

Mora’s ordinance is one of hundreds drafted by CELDF and enacted across the country. Wealth has deployed its arsenal of legal advantages against a few of them, punishing municipalities financially, even threatening to bankrupt them, while blaming CELDF for bringing grief and costly litigation upon them. Lower courts, unwilling to make decisions about constitutional issues, generally rely on such mechanisms as state preemption to safeguard the interests of property and wealth. Federal courts lean on Supreme Court precedent to protect the civil rights previously bestowed on corporate property.

One of the successes we’ve come to expect from campaigns like the one in Mora is the exposure of the legal substructure that arms the priorities of wealth with power to neutralize the unalienable rights of people. That may not seem like much of a win, but in the context of public obliviousness to the true nature of American law, it is a necessary first step toward building a community rights movement.

The Land Must Be Liberated: Emancipating the Planet

The community rights movement into which you are being invited conceives of a much more inclusive definition of community than the framers of the US Constitution had in mind. For them, white men who own property were the legitimate rulers of the nation. Women, Native Americans, African Americans, paupers of all sorts had no place in the governance of the community or the nation. It’s time to open the gated fortress where people and their possessions separate themselves from nature, fellow human beings, and responsibility to them, smug in their presumed superiority. We can reconstitute community as it should exist: people living in harmony with nature, rather than as parasites.

Nature is the greater community, and we are a part of it. We are not helpless to begin the task of correcting and making amends for the cultural, genocidal, and ecocidal errors of the past. Or if we are, then the visceral longing for freedom and real justice and preservation of the planet are lost causes. But that is an intolerable outcome.

Liberating the planet from those who claim to own it must coincide with liberating We the People and all of us in nature from the dictatorship of property. These inextricably interwoven causes have the same goal: right relationship and true freedom.

IN 2006, I WAS working with clients in the borough of Tamaqua in Schuylkill County, Pennsylvania. It’s anthracite coal country, where a century and a half of mining has left the landscape pockmarked with holes and rubble and a shallow-rooted forest of perpetual saplings that will never become full-grown trees. Once the Industrial Revolution switched from coal to petroleum for most of its energy, the same communities from which natural “resources” had been stripped became the dumping ground for toxic waste. Gaping strip mines and deep mine shafts were eyed for “reclamation,” meaning they’d be filled with industrial waste, coal fly ash, urban sewage solids, and river dredge.

The people of Tamaqua thought that was a bad idea. I worked with them to draft a local law that included provisions my colleagues and I had been developing for a few years. At the heart of the ordinance was this concept: Unalienable rights come first.

As we worked on the draft ordinance, I had a conversation with Cathy Miorelli, a member of the borough council and full-time school nurse. She wasn’t concerned that the draft law for the little town would take on the “well-established” constitutional rights of the Lehigh Coal and Navigation Corporation and the preemptive authority of the Commonwealth of Pennsylvania. No. She went to the heart of the matter and raised the issue of property rights. How could Tamaqua prohibit landowners from doing whatever they want with their property, to the point of creating serious hazards for the community? She knew the reverence for property central to American law. How could we challenge such a foundational doctrine?

It wasn’t a question. It was a challenge. “No, really: How can we do it?”

As it turned out, CELDF’s executive director, Thomas Linzey; our historian and mentor, Richard Grossman; and I had been having quiet, internal conversations about an idea that was raised in the 1970s by Christopher Stone, professor of law at the University of Southern California, in his book Should Trees Have Standing? Its subtitle was Toward Legal Rights for Natural Objects. Professor Stone asked how society could really protect the environment when nature has been subdivided into privatized parcels. Under Western law, ecosystems and nature have but one legal status: that of property. Owners of property have few enforceable obligations to others when it comes to how they treat their property. If only nature had legal rights of its own, Stone mused; then maybe something could be done to protect it.

And that is what Cathy Miorelli was curious about. What could be done to stop the owner of the Springdale coal mine from filling it with toxins? Up to that point, no one had taken Christopher Stone’s question seriously enough to test it. So, we did.

On September 19, 2006, Tamaqua became the first government on earth to recognize legally enforceable rights for ecosystems. Section 7.6 of the ordinance states:

It was a first. The law still stands, not having been challenged with corporate or state litigation. Lehigh Coal and Navigation Company did not go forward with its dumping plans. It cannot be said that the ordinance or this new approach to protecting the environment won the day once and for all. But it did gain international attention.

By now the rights of nature have become something of a cause célèbre. Beneath the legal fight to protect the planet and its living systems is a battle to the death—or to life—over legal rights in property and the status of nature in the eyes of the law. Word of what Tamaqua had done traveled far and abroad. For those who doubt that what we do locally in our hometowns can have any important or lasting effect, take note.

Following news of Tamaqua’s brave leap into uncharted territory, Ecuador recruited CELDF staff to guide their Constitutional Assembly in drafting a key part of what would become their new national constitution. They wanted to include rights for Pachamama—Mother Earth. By popular vote in 2010, with overwhelming support, Ecuador’s new national constitution recognizing fundamental legal rights for nature became its new law of the land. The English translation of the constitutional provision on which my colleagues worked says this: “Natural communities and ecosystems possess the unalienable right to exist, flourish, and evolve within Ecuador. Those rights shall be self-executing, and it shall be the duty and right of all Ecuadorian governments, communities, and individuals to enforce those rights.”

What Tamaqua had done, and what Ecuador did, became an example for bold American communities and nation-states around the globe. Readers may be familiar with the changed legal status of nature and natural systems in New Zealand, Bolivia, India, Colombia, and elsewhere. Here in the US, through our community rights organizing, we’ve added the rights of nature to all the local laws we draft for American communities.

The “no fracking” Community Bill of Rights enacted by Pittsburgh in 2010 recognized the rights of ecosystems, saying: “Natural communities and ecosystems, including, but not limited to, wetlands, streams, rivers, aquifers, and other water systems, possess inalienable and fundamental rights to exist and flourish within the City of Pittsburgh. Residents of the City shall possess legal standing to enforce those rights on behalf of those natural communities and ecosystems.”

Our associate director, Mari Margil, has traveled the globe to help officials and activists develop rights-of-nature legislation and constitutional provisions. We were not involved in New Zealand’s settling with the aboriginal Maori people to recognize legal rights for the Wanganui River. The movement for nature’s rights has begun to take on a life of its own.

Here in the US, more than forty cities, municipalities, and counties have enacted laws recognizing nature as a rights-bearing entity. No longer mere property in which special privileges are stored, later to be enjoyed by its human owners, nature is recognized in those communities as fully qualified to enjoy its own rights and to have them defended in court.

The reason that nature needs recognition for her legal rights is not that nature should be considered a legal person. We’ve changed our understanding and approach since our first venture into unalienable rights of nature in Tamaqua. Nature is not a human being. And it’s not a mere “juristic person,” or corporation. It has its own priorities and deserves and needs these protections because Western law and the rule of property treat nature as the slave of its many owners.

It is the privilege to destroy that makes the owners of land and “resources” dangerous to life on earth. The rest of us, who do not “own” the world, have unalienable rights, including the right to withdraw presumed privileges of property ownership when they threaten others’ rights and do harm to the world. The privilege to destroy is among the cache of governing powers conveyed to landowners by the rights of property. It has brought to the world the climate crisis, a mass species die-off, and the ecocide of the oceans, not to mention the proliferation of disease, dislocation, misery, and suffering for people and life in general. To argue that the community has no authority to bring this carnage to an end is a blithe absurdity.

There is no doubt that making the needed changes to privileges associated with property will be one of our culture’s greatest challenges. Freeing nature from bondage to its “owners” will alter the meaning of the word property in ways that will defy centuries of institutionalized privilege for those who possess the lion’s share of everything. The propertied class will resist any change that diminishes their dominion over us and the entire living world. They will employ uninformed friends, family, and strangers as their armed workforce to resist our efforts. They will engage in propaganda and misinformation, name-calling, villainization, and criminalization of our efforts, our gatherings, even our thoughts, to stop us from wresting total control from them. The stakes could not be higher. To lose is to lose everything. Your help is needed in this struggle for survival.