Could the 13th Am. prohibit the factory farming of animals?

[Malla Pollack]

I think your concept would work better with the 8th amd-cruel and
unusual punishment would ok relatively kind confinement of animals,
including eating them.  The Amd does not say "persons" "citizens".  Of
course, other textual problems exits.  Animals could not be within a ban
on excess bail or fines.  "Unusual" may allow anything done by many -
but if you are an originalist it does not allow factory farming which
was unknown in 1789. 

 

________________________________

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of MARK STEIN
Sent: Monday, August 07, 2006 9:27 PM
To: lawcourts-l at usc.edu; conlawprof at lists.ucla.edu
Subject: Could the 13th Am. prohibit the factory farming of animals?

 


Is there any way to interpret the Constitution so as to prohibit the
factory farming of animals?  Among the inhumane practices that fall
under the heading of "factory farming" are the confinement of animals,
for their entire lives, in spaces so small that they cannot turn around.
See Peter Singer's work on animal welfare, such as his recent online
piece "Time to Reconsider the Ethics of Eating," available at 

http://www.utilitarian.net/singer/by/200606--.htm


The most obvious line of attack against factory farming would be the
13th Amendment, which prohibits slavery.  The 13th Amendment covers
private as well as governmental behavior, and it does not explicitly
limit its protection to "persons," as does the 14th Amendment.

The idea of extending the 13th Amendment to cover the treatment of
animals has been suggested by Laurence Tribe, in "Ten Lessons Our
Constitutional Experience Can Teach Us About the Puzzle of Animal
Rights: The Work of Steven M. Wise," Animal Law 7, no. 1 (2001), p. 4.

Section 1 of the Thirteenth Amendment states:  "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." 

It might be thought that the proviso, "except as a punishment for
crime...," means that the protection of the Thirteenth Amendment is
confined to people: animals are not convicted of crimes.  But just
because the proviso applies only to people does not mean that the
Thirteenth Amendment as a whole applies only to people.  Also, the
proviso can be read as creating an exception only for "involuntary
servitude," not for slavery.  After all, we do not normally consider the
imprisonment of criminals to be "slavery."  

If the Thirteenth Amendment is to extend protection to animals, the term
"slavery" must be read to cover a narrower class of activities with
respect to animals than with respect to people.  We have to say that
while it is possible to enslave an animal in violation of the 13th
Amendment, treatment that would constitute slavery if done to a person
is usually not slavery if done to an animal.  Otherwise, all
domesticated animals, no matter how well treated, would be considered
slaves under the 13th Amendment.

Is there precedent for extending constitutional protection to a class,
but granting it less protection than other classes?  Certainly there is
such precedent under the multi-tiered equal protection doctrine.  Are
there other constitutional provisions under which a class of
rights-holders (e.g. aliens, corporations) receives some protection, but
less protection than other classes?  

Some may wish to consider how extending constitutional protection to
animals would comport with the original intent of the 13th Amendment.
There is an impulse among some originalists to assume that lofty general
principles must be read to ratify every sordid practice that was
widespread when the principles were enunciated.  (This impulse is most
strikingly exhibited in Taney's opinion in Dred Scott, which argues that
the signers of the Declaration of Independence must be understood to
have ratified slavery.)  Here, however, the impulse to give evil the
benefit of the doubt has little purchase, as factory farming did not
exist when the 13th Amendment was written and ratified (at least, I
think it didn't).  

For more on the originalist aspect of this topic, see my forthcoming
article The Original Understanding of Animal Rights: The Flounder's
Constitution

 (No, just kidding about the last, but the rest of the post is serious.)

Mark

  

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