Offense

Tue Aug 8 15:00:13 PDT 2006

Hi Marty, 

Thanks a lot for this. Posts came in while I was a drafting my most recent response - I am having a hard time keeping up. 

 I do want to say that I was not trying to shut Mark up. If he had not posted, then the issue would never have been raised - I think that it was good that  the issue was raised so that we could have a discussion about it. My objection was not so much to his throwing out the argument, as it was to the argument itself - which as I keep saying, I think is racist.  

yb

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Marty Lederman
Sent: Tue 8/8/2006 4:45 PM
To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
Subject: Offense

No, of course not -- the "mere fact" that one fellow listserv participant is offended should not necessarily deter someone from posting their views.  Not standing alone, anyway.  (No one, surely not Yvette, has said anything about entitlements to post or obligations not to do so.)

But when a thoughtful, careful writer such as Yvette -- a trusted and valuable member of our small community here -- suggests that someone has unwittingly phrased an argument in a way that does, in fact, deeply offend a great number of readers, surely the only proper thing to do, the only civil course of action, is to regret having caused such offense, and to think hard about whether there's an alternative way to put the point in a way that will not be so offensive, no?

Eugene, I take it your point is that it was not reasonable for Yvette (and if she's correct, all persons of color) to be offended by the analogy.  In light of the source, and the civil manner in which she carefully phrased her objections, I would hesitate long and hard before reaching such a conclusion about what should and should not offend people of color.  But be that as it may, even if one concluded that she was being unreasonable, why on earth wouldn't you nevertheless regret the offense, and do what you can to make the analytic point in a way that is not so hurtful?

Or am I misconstruing your point?

P.S.  This thread, and its current civility offshoot, has been rather odd, to say the least.  It's not as though there aren't tons of live, very important ConLaw questions percolating out there that could benefit from our discussion.  And yet the list has been fairly quiet for weeks.  But when Mark offers a provocative yet very unorthodox suggestion -- i.e., one that surely won't be in the mainstream of 13th Amendment doctrine for quite a while, if that -- it prompts so many posts that my In-Box can barely stand the volume!  Not that there's anything wrong with it, of course . . . but it is interesting what piques folks' interests . . . 

----- Original Message ----- 
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu <mailto:VOLOKH at law.ucla.edu> >
To: <CONLAWPROF at lists.ucla.edu <mailto:CONLAWPROF at lists.ucla.edu> >
Sent: Tuesday, August 08, 2006 5:21 PM
Subject: RE: Re: Could the 13th Am. prohibit the factory farming of animals?

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 <mailto: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>  
> > > [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 <mailto: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