Could the 13th Am. prohibit the factory farming of animals? (and
offense)
Bob Sheridan
bobsheridan at earthlink.net
Tue Aug 8 17:25:17 PDT 2006
Barksdale, Yvette wrote in an earlier post:
"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."
***
Comment: Query whether this observation is likely to be correct. I
think what it shows is the extraordinary sensitivity sometimes exhibited
by some blacks to alleged issues of color or race where whites not only
don't see the issue, or 'get it,' but probably never will, perhaps
because of extraordinary dullness. When viewing the world through such
different lenses, one cannot always see the other side, even when it is
pointed out.
As I read the Mark Stein query, he seemed to be looking for a clause on
which to hang his hat to make an argument protecting animals from
perceived mistreatment under a regime he terms 'factory farming.'
Clearly it's a stretch to hang a constitutional argument banning such
practice on one clause or all clauses of the Constitution as it is
generally understood, assuming it is generally understood to cover 'We
the people.'
Prof. Stein's mind lit on the 13th Amendment for whatever reason and he
queried this list. Had I made such a query and been told I was verging
on racism and that all blacks were likely to see me as a form of Mel
Gibson, I'd be surprised. Although I know full well that the Civil War
Amendments were designed to consolidate the gains won by the North on
the battlefield by protecting blacks legally, I'm also aware that the
amendments have been drafted, used, and interpreted to protect people
generally regardless of race, color, etc. Try as I might, I'm having
difficulty imagining a subliminal or any other disparagement of people
in general or blacks in particular by trying to borrow the 13th to
protect other forms of life from mistreatment as a constitutional matter.
The slippery slope argument seems one that is easily alleged and
difficult to establish except in ones imagination.
Why are all slopes 'slippery?'
Aren't there ratchet-faced slopes down which one doesn't slide easily,
if at all?
Let's assume that some folks will say that their feelings are hurt over
the making of an argument or use of a perhaps unhappy term. Let's
assume that their feelings are hurt. I'm not sure this makes the person
who made the argument or used the unhappy term an offender of any sort,
intentional or negligent. The things that offend people change without
notice. The most sensitive, caring, or solicitous person, of others
feelings, can mis-step as we march through a field of eggshells in
seeking to have a discussion. In writing this I wondered whether it was
wrong not to capitalize 'black,' or even to use the term. When I was a
kid, it was a bad word. The good words I learned have all but been
discarded in what must be a bit cosmic irony, for good reason, no
doubt. No one provided official notice. I decided to go with
lower-case, no harm intended.
Isn't this the problem called 'political correctness'? The problem in
which because someone's feelings might be accidentally hurt, one should
not only watch ones language, but bite his tongue and refrain from
speaking? I see it as the kind of censorship that the principle of free
mind and expression struggles against, whether imposed by government or
privately.
Respectfully,
rs
sfls
> ( 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)
>>>>
>>>>
>>>> _______________________________________________
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>>>
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>>>>
>>>>
>>> _______________________________________________
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>>>
>>> Please note that messages sent to this large list cannot be
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>> viewed as
>>
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>>>
>> messages that are
>>
>>> posted; people can read the Web archives; and list members can
>>> (rightly or wrongly) forward the messages to others.
>>>
>>>
>>>
>>>
>> _______________________________________________
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