Could the 13th Am. prohibit the factory farming of animals?
Volokh, Eugene
VOLOKH at law.ucla.edu
Tue Aug 8 14:21:17 PDT 2006
If people find something offensive, they're of course entitled
to express this view -- my point was simply that the mere fact that some
are offended shouldn't strip the original author of his entitlement to
express his view, and to continue expressing it.
Eugene
> -----Original Message-----
> From: Frank Cross [mailto:crossf at mail.utexas.edu]
> Sent: Tuesday, August 08, 2006 2:19 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: Re: Could the 13th Am. prohibit the factory
> farming of animals?
>
>
> 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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>
> **********************************************************
>
> Frank Cross
> McCombs School of Business
> The University of Texas at Austin
> 1 University Station B6000
> Austin, TX 78712-1178
>
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