Could the 13th Am. prohibit the factory farming of animals?
Frank Cross
crossf at mail.utexas.edu
Tue Aug 8 14:19:06 PDT 2006
Sure, but I presume you don't object to posts observing that people would
find a given position to be deeply offensive, do you? That's all I saw
At 04:00 PM 8/8/2006, Volokh, Eugene wrote:
> I'm sure fellow list members recognize that I quite disagree
>with Mark Stein's arguments on the merits. But I don't think that he or
>others who support this views ought to be stopped by the concern that
>some people would be "deeply offended" by their position. The position
>that both slaves and animals should be seen as having rights to freedom
>from slavery is perfectly legitimate, and in no way suggests that slaves
>(or blacks or any other human group) are morally inferior; the argument
>rather is that animals (or certain animals) shouldn't be treated as
>morally inferior, either. If some people are offended by this position,
>they're naturally entitled to be. But I see no obligation on others'
>part to therefore refrain from making such an argument.
>
> The same can be said, of course, of claims (which I've heard
>made) that it's offensive to analogize sexual orientation discrimination
>to race discrimination. I realize that there are many people, including
>many blacks, who find homosexual conduct to be morally improper, and
>thus conclude that discrimination based on sexual orientation is on a
>very different moral footing from discrimination based on race. But
>this hardly makes it improper for others to argue the contrary.
>
> Eugene
>
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> > Barksdale, Yvette
> > Sent: Tuesday, August 08, 2006 1:46 PM
> > To: MARK STEIN; conlawprof at lists.ucla.edu
> > Subject: RE: Re: Could the 13th Am. prohibit the factory
> > farming of animals?
> >
> > Hi folks:
> >
> > Regarding this particular line of argument - Politically, I
> > think all should be aware that there is likely not an
> > African-American person (or a person of color, likely) in the
> > country that would not be deeply offended by this particular
> > line of argument.
> >
> > The foundation of the battle against slavery, which
> > culminated in the adoption of the Thirteenth Amendment, was a
> > fight to recognize the equal humanity of all persons - and
> > the recognition of certain basic rights which were guaranteed
> > to all persons. This rejection of the concept of the
> > equality of all humans, was at the core of the institution of
> > slavery which premised on the proposition that persons of
> > African-descent, were "less than fully human" and thus were
> > not entitled to rights. The Thirteenth and Fourteenth
> > Amendments were a repudiation of that line of thinking.
> > Instead, those amendments, at a minimum, substituted a value
> > system based upon the equal humanity of all persons. Even
> > post-Reconstruction Jim Crow rhetoric, which was used to
> > justify segregation, an institution which clearly was
> > premised on the persistent belief of the inferiority of
> > people of color, required at least the legitimating language
> > of equality: "separate but equal."
> >
> > To apply these amendments to animals would turn this history
> > on its head - and would essentially readopt the same line of
> > thinking that was previously rejected after much struggle -
> > that is the view that black people are no different than
> > animals, and if they deserve rights, then animals must as
> > well. . (Indeed, I heard a speaker on one of the WPA
> > recordings of former slaves, say specifically, that during
> > slavery "we were treated like livestock, the same as if we
> > were a cow or a mule - no different" )
> >
> > Of course, one could argue that all people (regardless of
> > race) and all animals are the morally the same, and equally
> > entitled to rights, but if so, the same reasoning would have
> > to apply to all constitutional rights - not just Thirteenth
> > Amendment ones - if people and animals are morally the same
> > - what is the basis for not giving all "human rights" to
> > animals. (And the mental capacity argument does not work -
> > because even unconscious, or severely retarded, human beings
> > still have constitutional rights which can be exercised by
> > others acting on their behalf.)
> >
> >
> > So the thirteenth amendment seems to fit, people of color
> > will quickly conclude, because the move from "Negro" to
> > animal has been, and still, is such a subliminally easy one
> > in this country's sociology.
> >
> > yb
> >
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of MARK STEIN
> > Sent: Tue 8/8/2006 2:05 PM
> > To: conlawprof at lists.ucla.edu
> > Subject: Fwd: Re: Could the 13th Am. prohibit the factory
> > farming of animals?
> >
> >
> > I'm not completely sure what I mean by that either. If I
> > wanted to find precision, I might start by reading your
> > download of the week on Dworkin's fallacy,
> >
> > http://lsolum.typepad.com/legaltheory/2006/08/download_of_the.html
> >
> > Mark
> >
> > Lawrence Solum <lsolum at gmail.com> wrote:
> >
> > Date: Tue, 8 Aug 2006 12:09:04 -0500
> > From: "Lawrence Solum" <lsolum at gmail.com>
> > To: "MARK STEIN" <markstein at prodigy.net>
> > Subject: Re: Could the 13th Am. prohibit the factory
> > farming of animals?
> >
> > Certainly it is true that language can change meaning,
> > but three additional points then become relevant. First, on
> > many theories of constitutional interpretation (e.g. original
> > meaning originalism), the change in meaning in ordinary
> > language would not authorize a change in the constitutional
> > interpretation. Second, the point about possible future
> > changes in meaning seems to support the conclusion that the
> > 13th amendment could not properly be applied to animals given
> > current linguistic conventions. Third, "language is as
> > language does" isn't terribly clear to me. What does this
> > mean? Is this an invocation of some general view in the
> > theory of interpretation or the philosophy of language, and
> > if so, what view?
> >
> >
> > On 8/8/06, MARK STEIN <markstein at prodigy.net> wrote:
> >
> > In response to Larry and Jon Roland,
> >
> > Language is as language does. Metaphorical
> > meanings have in the past become real. Which is not to say I
> > expect it to happen here.
> >
> >
> > Mark
> >
> >
> > Lawrence Solum <lsolum at gmail.com> wrote:
> >
> > Considering this topic for the first
> > time, it seems to me that the concept of slavery is limited,
> > either to humans or to persons. Uses of the term to refer to
> > animals are metaphorical uses. It is simply not part of the
> > grammer of slavery to use it to refer to animals.
> >
> > If this is correct, then 13th amendment
> > cannot be applied to animals--except possibly very
> > intelligent animals that might be considered persons. Of
> > course, there might be some unenumerated constitutional
> > principle--an emanation or penumbra--that would be related to
> > the 13th amendment and would cover animals.
> >
> >
> > On 8/8/06, MARK STEIN
> > <markstein at prodigy.net > wrote:
> >
> > 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:
> >
> > 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
> >
> >
> >
> >
> >
> >
> >
> >
> >
> > --
> > Lawrence Solum
> > John E. Cribbet Professor of Law
> > University of Illinois College of Law
> > 504 East Pennsylvania Avenue
> > Champaign, IL 61820-6909
> > 217.244.3960
> > lsolum at gmail.com
> > http://lsolum.typepad.com/legaltheory/ (blog)
> > http://home.law.uiuc.edu/~lsolum/
> > <http://home.law.uiuc.edu/%7Elsolum/> (homepage at the
> > University of Illinois)
> >
> >
> >
> >
> >
> > --
> > Lawrence Solum
> > John E. Cribbet Professor of Law
> > University of Illinois College of Law
> > 504 East Pennsylvania Avenue
> > Champaign, IL 61820-6909
> > 217.244.3960
> > lsolum at gmail.com
> > http://lsolum.typepad.com/legaltheory/ (blog)
> > http://home.law.uiuc.edu/~lsolum/
> > <http://home.law.uiuc.edu/%7Elsolum/> (homepage at the
> > University of Illinois)
> >
> >
> > _______________________________________________
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>_______________________________________________
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**********************************************************
Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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