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

[MARK STEIN]

Tribe also mentions that the 8th Amendment could apply to animals, in the article I cited in my original post, but he says the 13th Am is "best suited of all."

I think there are more hurdles in using the 8th against factory farming, beyond just extending it to animals.  The 8th would also have to be extended to private behavior, and the word "punishment" would have to be shorn of its meaning (plain and contextual) of punishing some person (or animal) for something it did wrong.  I can more readily see applying the 8th Amendment to the actual punishment of animals, in circuses and so forth.

Leslie and Paul (in a message that may not have made it to the list) observe that if slavery meant the same for animals as for people, all domesticated animals would be slaves.  I made the same observation in my original message:

" 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?"

Anyway, there would also be a problem of dual meaning with the 8th Amendment:  If we said that what is cruel and unusual with respect to people (when they are punished by government) is also cruel and unusual with respect to animals, we would prohibit all sorts of practices that even opponents of factory farming would condone.  Actually, the problem of dual meaning would be worse w/r the 8th Amendment, because purely private behavior to animals violating the (extended) 8th Amendment would NOT be considered a violation of the 8th if done to people by other people with no state action (right?).

Mark

Malla Pollack <mpollack at ajsl.us> wrote:        v\:* {behavior:url(#default#VML);} o\:* {behavior:url(#default#VML);} w\:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);}      st1\:*{behavior:url(#default#ieooui) }           I think your concept would work better with the 8th amd&#8212;cruel and unusual punishment would ok relatively kind confinement of animals, including eating them.  The Amd does not say &#8220;persons&#8221; &#8220;citizens&#8221;.  Of course, other textual problems exits.  Animals could not be within a ban on excess bail or fines.  &#8220;Unusual&#8221; may allow anything done by many &#8211; but if you are an originalist it does not allow factory farming which was unknown in 1789. 
   
      
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  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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