Could the 13th Am. prohibit the factory farming of animals?
(and offense)
Barksdale, Yvette
7barksda at jmls.edu
Tue Aug 8 16:14:07 PDT 2006
( yes this really is the last one - and I think this also addresses points raised in other posts as well - this time I rechecked before I posted [ smile] - although some more may of come in already) -
ok - Eugene, I would agree with you here [ see eugene's post below] , except for the fact that the law already was that all people were free, unless they were African-American. So the only remaining issue was whether African-American people had the same right not to be a slave as other people.
Perhaps I would have felt more comfortable with Mark's argument if it had been phrased as a "anti-forced labor" or "anti- involuntary confinement" argument (which is what the 13th Amendment now means) than as an "anti-slavery" argument. {and I am more convinced of this now by both marks (graber and stein's) responses}
Wnile all of these terms (including the prohibition against literal slavery) are now universal values, only the term "slave" is a racialized term - and yet that was the analogy that was made - thus implying that the analogy is animal to slave - not animal to person.
Finally, Eugene, as to your belief my true intent was really to shush Mark Stein - not so. I never ever said that Mark should not have submitted his post. I certainly do not believe that anyone on this list should censor arguments because of fear of a negative reaction (personal attacks of course would be different - but nobody does those.) Nor do i believe that Mark should simply abandon the argument post haste - just that he should think about the racial implications of it.
But, once the arguments are made, other people get to respond. And, this free flow helps the poster. I would think that anyone who is thinking about an argument and asking for comments would want to know that people might think the argument was racist.
ciao,
yb
________________________________
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Tue 8/8/2006 5:20 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: Re: Could the 13th Am. prohibit the factory farming of animals?
I agree with much of this post except for the "Nope." The issue
was whether slaves should be free, *and* whether African-Americans had a
right not to be a slave.
Eugene
> -----Original Message-----
> From: Barksdale, Yvette [mailto:7barksda at jmls.edu]
> Sent: Tuesday, August 08, 2006 3:17 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: Re: Could the 13th Am. prohibit the factory
> farming of animals?
>
> My last post on this - promise (smile)
>
> Eugene writes: "the issue in 1866 was whether slaves should be free"
>
> Nope - the issue in 1866 was whether African-Americans were
> sufficiently human to have a right not be a slave. The 19th
> century law of slavery (in all slave states, I am almost
> certain -Paul Finkelman will likely know this ) was that only
> Negroes were eligible to be slaves. Proof that a person was
> not a Negro (as defined by state law - which diverged from
> state to state) was a "get out of slavery free" card
>
> yb
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Tue 8/8/2006 4:39 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: Re: Could the 13th Am. prohibit the factory
> farming of animals?
>
>
>
> Seems to me that "'slaves and animals' have equal
> rights not to be slaves" is not far different from "'people
> and animals' have equal rights not to be slaves." Non-slave
> people are by definition already not slaves; , so that's one
> reason of speaking in terms of slaves having the right not to
> be slaves, but whether slaves should be free is pretty much
> the same as whether all people should be free.
>
> Mark Stein's argument was that just as slaves were
> rightly freed in 1866, so animals should be freed from what
> he sees as slavery today.
> That's a perfectly legitimate (though in my view
> substantively mistaken) position to take. To the extent that
> it involves a "comparison of 'slaves and animals,'" it simply
> involves a judgment that slaves and animals are both entitled
> to freedom, not a judgment that slaves are somehow inferior
> in the way that animals are. I therefore think it's
> important to defend the propriety of Mark Stein's making such
> an argument, and to encourage others not to feel any
> obligation to avoid making such arguments.
>
> Eugene
>
> > -----Original Message-----
> > From: Barksdale, Yvette [mailto:7barksda at jmls.edu]
> > Sent: Tuesday, August 08, 2006 2:13 PM
> > To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> > Subject: RE: Re: Could the 13th Am. prohibit the factory farming of
> > animals?
> >
> > Hi eugene
> >
> > The core of my position was not simply that people of color
> would be
> > offended, but that people of color would be offended because the
> > argument itself is fundamentally premised on as you yourself put it
> > below, on a comparison of "slaves and
> > animals," rather than of "people and animals" which would
> > lead to a much broader concept of animal rights that I don't think
> > anyone would advocate. Note, even you did not write that
> "people and
> > animals" both have rights not to be slaves, rather that "slaves and
> > animals" have equal rights not to be
> > salves. The willingness to move from "slaves to animals"
> > and not from "people to animals," is sublimally easier
> > because of the long association of slaves with people of color (at
> > least in particular persons of African descent) and Africans with
> > animals. That is the slippery slope that makes this
> argument seem a
> > more reasonable one than one premised instead on the equal
> status of
> > humans and animals.
> >
> > yb
> >
> >
> >
> > ________________________________
> >
> > From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> > Sent: Tue 8/8/2006 4:00 PM
> > To: CONLAWPROF at lists.ucla.edu
> > Subject: RE: Re: Could the 13th Am. prohibit the factory farming of
> > animals?
> >
> >
> >
> > 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)
> > >
> > >
> > > _______________________________________________
> > > To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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