Could the 13th Am. prohibit the factory farming of
animals?- argument analysis turn
Malla Pollack
mpollack at ajsl.us
Wed Aug 9 07:17:22 PDT 2006
This discussion is a wonderful example of using history as an argument
against someone making a proposal s/he thinks leads to progress in
morality. It is quite similar to arguing that we should not leave Iraq
(Vietnam, Korea etc) because to do so dishonors the soldiers who have
already died (been wounded, etc) in the war effort.
What I am not sure of is whether this counts as making the
perfect the enemy of the good? Any comments?
-----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 4:13 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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