Protection of Dogs Under the Law

[KazooSkinsFan]

Not because he's a sick SOB but because of what he did to living, feeling, intelligent creatures. Those animals lived a nightmare of a life and by the time death came it was a blessing.

Let me give the too-short assertion up front: Dogs aren't moral agents, so we can't predicate that they have rights and protection under the law. If we want to discuss why I think this or consider alternative positions, then we'll have to do it in a thread in the Lounge (or, for those who can't handle that [not a swipe at you, Kaz], Smack).

OK, I'll bite (yuk, yuk). First, you're a mod and I don't take those comments as directed at me unless they clearly are, you need to moderate. Actually I don't take much personally.

But my view on Dogs:

- Federal - Dogs are not addressed in the Constitution, as fetuses are not addressed, as drugs are not addressed, as suicide is not addressed, and therefore by the 10th Amendment there is no Constitutional Authority for the Imperial Federal Government of the United States to have any position on the protection of dogs as all as those other issues. As I said I'm for nailing their hides to the wall, but not the Federal government. I have intellectual integrity. I'm pro-choice, but Roe V. Wade is a Constitutional abomination and a made up "right." I believe in the Constitution as written. If someone else doesn't, the process for changing it is in the Constitution. 2/3 of both houses and 3/4 the legislatures, not a 5/9 beauty contest by self appointed dictators. But I digress, back to the topic.

- State - By the 10th Amendment, it is a State right but not a responsibility to protect dogs (or other animals). I obviously think they should. In the Vick case, my opinion he didn't go to jail long enough was based on the crime he committed, not the process. I oppose the Federal government having dogfighting laws at all or prosecuting him, it should have been the State of Virginia based on Virginia law.

So anyway, I'm interested in the views you were alluding to, thought I'd clearify my view too.

[Irn-Bru]

I wasn't speaking as a mod but just as a conscientious board member. I can speak for the Staff when I say that we always try to be very clear when we are taking an official mod position or giving some kind of direction.

[Deadskins]

You don't need an amendment to the Constitution for Congress to enact a federal law, and the Commerce Clause is used as a catch-all to allow federal intervention in activities such as dog fighting.

According to the Tenth Amendment, the government of the United States has the power to regulate only matters specifically delegated to it by the Constitution. Other powers are reserved to the states, or to the people (and even the states cannot alienate some of these). The Commerce Clause is one of the Article Section 8 powers specifically delegated to Congress and thus its interpretation is very important in determining the scope of federal legislative power.

http://en.wikipedia.org/wiki/Tenth_Amen ... nstitution

Not saying it's right, but that's the way it is.

[Irn-Bru]

- Federal - Dogs are not addressed in the Constitution, as fetuses are not addressed, as drugs are not addressed, as suicide is not addressed, and therefore by the 10th Amendment there is no Constitutional Authority for the Imperial Federal Government of the United States to have any position on the protection of dogs as all as those other issues.

- State - By the 10th Amendment, it is a State right but not a responsibility to protect dogs (or other animals). I obviously think they should.

So anyway, I'm interested in the views you were alluding to, thought I'd clearify my view too.

Well my own basic view on rights, law, and morality rejects legal positivism, so I'm not going to accept something only because the Constitution allows it. It seems to me that the Constitution is a pretty good reference point insofar as it adheres to the higher laws its based on, and when it breaks away from moral or ethical constraints it is a Constitution of no authority.

So I'm not going to be able to make much of a legal argument in the context of US law, much less speak to current issues in animal treatment and cruelty within the United States, etc. But I can have somewhat intelligible conversation regarding the nature of morals, law, and rights. And the nature of animals precludes their capacity to act as moral agents.

Human beings may still have moral obligations towards animals (in fact I think we do), but moral obligations in themselves are not a sufficient justification for using force to ensure compliance. I think you also need a concept of rights to give legitimacy to force. No legitimacy for ordinary people means the State can't do it, either.

And since rights require that the prospective-rights-holder in question is a moral agent, not just a moral patient, it doesn't look to me like animals either currently enjoy rights or are likely to do so in the future.

[Deadskins]

Wow IB, I had never even considered the whole idea brought forth in that link. Interesting stuff. Pretty much makes all the nations of the world obsolete, doesn't it? I wonder how far that argument would get you in a court of law? "Your Honor, I never agreed to be bound by the Constitution, and as such, I cannot be punished for my supposed crimes."

[Irn-Bru]

Ha. You're right, probably not far.

[PulpExposure]

You don't need an amendment to the Constitution for Congress to enact a federal law, and the Commerce Clause is used as a catch-all to allow federal intervention in activities such as dog fighting.

That's absolutely right. And, in fact, the law was specifically written within the boundries of Congress' enumerated right to regulate interstate commerce (the Commerce Clause). The Animal Fighting Welfare Act specifically involves:

The Congress finds that animals and activities which are regulated under this Act are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this Act is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce

Specifically, 7 USC 2155 states:

(a) It shall be unlawful for any person to knowingly sponsor or exhibit an animal in any animal fighting venture to which any animal was moved in interstate or foreign commerce.

(b) It shall be unlawful for any person to knowingly sell, buy, transport, or deliver to another person or receive from another person for purposes of transportation, in interstate or foreign commerce, any dog or other animal for purposes of having the dog or other animal participate in an animal fighting venture.

Vick clearly violated this law, as he brought his dogs all over the South for purposes of dogfighting. If he had kept his dogs in Virginia...then he wouldn't have run afoul of this law

Maybe...see Wickard v. Filburn for an example where the Commerce Clause has been expanded:

Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate commerce clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

But there are exigent circumstances there, and I don't really feel like going more in depth with the Commerce Clause than I already have. I have important papers to push around my desk!

[Deadskins]

You don't need an amendment to the Constitution for Congress to enact a federal law, and the Commerce Clause is used as a catch-all to allow federal intervention in activities such as dog fighting.

That's absolutely right. And, in fact, the law was specifically written within the boundries of Congress' enumerated right to regulate interstate commerce (the Commerce Clause). The Animal Fighting Welfare Act specifically involves:

The Congress finds that animals and activities which are regulated under this Act are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this Act is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce

Specifically, 7 USC 2155 states:

(a) It shall be unlawful for any person to knowingly sponsor or exhibit an animal in any animal fighting venture to which any animal was moved in interstate or foreign commerce.

(b) It shall be unlawful for any person to knowingly sell, buy, transport, or deliver to another person or receive from another person for purposes of transportation, in interstate or foreign commerce, any dog or other animal for purposes of having the dog or other animal participate in an animal fighting venture.

Vick clearly violated this law, as he brought his dogs all over the South for purposes of dogfighting. If he had kept his dogs in Virginia...then he wouldn't have run afoul of this law

Maybe...see Wickard v. Filburn for an example where the Commerce Clause has been expanded:

Filburn argued that since the excess wheat he produced was intended solely for home consumption it could not be regulated through the interstate commerce clause. The Supreme Court rejected this argument, reasoning that if Filburn had not used home-grown wheat he would have had to buy wheat on the open market. This effect on interstate commerce, the Court reasoned, may not be substantial from the actions of Filburn alone but through the cumulative actions of thousands of other farmers just like Filburn its effect would certainly become substantial. Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

But there are exigent circumstances there, and I don't really feel like going more in depth with the Commerce Clause than I already have. I have important papers to push around my desk!

The last case you cited is how the federal government circumvents state medical marijuana laws.

[KazooSkinsFan]

You don't need an amendment to the Constitution for Congress to enact a federal law, and the Commerce Clause is used as a catch-all to allow federal intervention in activities such as dog fighting.

According to the Tenth Amendment, the government of the United States has the power to regulate only matters specifically delegated to it by the Constitution. Other powers are reserved to the states, or to the people (and even the states cannot alienate some of these). The Commerce Clause is one of the Article Section 8 powers specifically delegated to Congress and thus its interpretation is very important in determining the scope of federal legislative power.

http://en.wikipedia.org/wiki/Tenth_Amen ... nstitution

Not saying it's right, but that's the way it is.

I know that's the way it is, I'm saying it's not right. Using the commerce clause to make dog fighting illegal's completely bogus. I'm saying that even though I strongly oppose dogfighting and would put people who did what Vick did for a long, long time if not life it's not in the Constitution and it shouldn't be. It should be a State issue.

[KazooSkinsFan]

Human beings may still have moral obligations towards animals (in fact I think we do), but moral obligations in themselves are not a sufficient justification for using force to ensure compliance. I think you also need a concept of rights to give legitimacy to force. No legitimacy for ordinary people means the State can't do it, either.

Can we hold parents accountable for beating their kids? Dogs are living creatures, the use of force is not to force moral compliance, it's to protect the animals. They are not inanimate objects. They live, they feel, they we should protect them. You accurately brought up eating animals, but what is abuse is subjective. At least they kill without torturing them for their entire lives like Vick did. So is the definition of abusing your kids. So is what it means to accost someone on the street. If you have a proposal to eliminate gray other then anarchy, please do share. Anarchy doesn't work because bad people will band together, good will band to protect themselves, and then we have government again. The best we can do is have a limited Federal government and let the people of States have a more accountable local government and the people can live where their values are reflected. Unfortunately the Republicans only give lip service to that and the Left has completely rejected it, but it was the right model.

[KazooSkinsFan]

Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

That reasoning's sick. No wonder the Supreme idiots make the rulings they do. The intent of the interstate commerce clause was to smooth trade, not rationalize Federal power which is all that ruling does.

[Irn-Bru]

Can we hold parents accountable for beating their kids?

Of course!

Dogs are living creatures, the use of force is not to force moral compliance, it's to protect the animals. They are not inanimate objects. They live, they feel, they we should protect them.

Well OK, but if that's your principle than you'd better make CLL your policeman. Because as he points out, if "life" is the criterion, and all animate substances deserve protection, then I murdered a few people as I was driving today, and used my windshield wipers to clear the corpses. When they broke ground to construct the house you own, one poor creature was decapitated and several thousand more lost their home. A life is a life, right?

Something tells me you're going to modify this principle. What I'm saying is that the proper 'line' to draw is at personhood, that is, when a creature is a moral agent. (To use the examples you brought up: children are moral agents; dogs are not.)

If you have a proposal to eliminate gray other then anarchy, please do share.

First, how did this come up? I'm not necessarily arguing for anarchy just because I don't think dogs are moral agents.

But what the heck, I'll give this a shot: No person or group of persons have the right to initiate force against any person or group of persons. (Those against whom force is initiated may respond accordingly, including agents acting on their behalf.)

Anarchy doesn't work because bad people will band together, good will band to protect themselves, and then we have government again.

While this is a common argument, it is far from decisive, in my humble opinion. It is akin to the argument "the free market doesn't work because then a monopoly drives out competitors and then prices skyrocket and quality deteriorates." And you don't find that argument persuasive, do you?

Now, maybe it's just me but it seems possible to discuss personhood and moral agents without necessarily talking about government, anarchy, Republicans, and liberals. I mean, I'm happy to talk about this stuff too, but I thought I'd mention it.

[Deadskins]

Just curious IB. What makes a being a moral agent? Is it the ability to determine right from wrong? Or does reason come into the picture?

[Countertrey]

Just curious IB. What makes a being a moral agent? Is it the ability to determine right from wrong? Or does reason come into the picture?

This should be good.

Purely for discussion:

What makes one a "moral agent"?

Is it the ability to determine "right" from "wrong"? If that is the case, does the ability to understand social "rules" constitute an understanding of right and wrong?

If so, it is true that even canine society has a structure of rules that are applied to the pack. Canids are fully aware when they have violated rules, and demonstrate this awareness through a variety of body postures and submissive behaviors that say "I'm sorry, I was wrong... please don't hurt me". Are they, therefore, "moral agents"?

Is it the ability to recognize "self"? All apes are capable of this... but it's also true that there are other species that can recognize "self" in a mirror... elephants, some birds (especially parrots), and possibly some species of dolphin are able to recognize themselves in a mirror. Are they "moral agents"?

Is it the ability to grasp certain abstractions? That would eliminate about 20% of humanity, and leave an odd mix of humans, parrots, and chimps as the world's moral compass. That would certainly upset the apple cart.

[KazooSkinsFan]

Dogs are living creatures, the use of force is not to force moral compliance, it's to protect the animals. They are not inanimate objects. They live, they feel, they we should protect them.

Well OK, but if that's your principle than you'd better make CLL your policeman. Because as he points out, if "life" is the criterion, and all animate substances deserve protection, then I murdered a few people as I was driving today, and used my windshield wipers to clear the corpses. When they broke ground to construct the house you own, one poor creature was decapitated and several thousand more lost their home. A life is a life, right?

Something tells me you're going to modify this principle. What I'm saying is that the proper 'line' to draw is at personhood, that is, when a creature is a moral agent. (To use the examples you brought up: children are moral agents; dogs are not.)

I don't see how any of this establishes that we cannot protect dogs from torture. Other then as an intellectual fist pump, I don't see any connection between the bugs on your windshield and outlawing bashing dogs brains in and training them to tear each other apart. I have no problem with environmental laws preventing pollution causing acid rain even though I don't think the forests protected are moral agents. I have no problem prohibiting dumping toxic waste in rivers even though I don't think the rivers are moral agents.

I totally agree dogs are not humans and they have no Constitutional protection. I don't WANT them to have Constitutional protection because that's the slippery slope that leads to the out of control Federal Government we have today which has destroyed liberty in this country. But there's NOTHING wrong and EVERYTHING right with LOCAL/STATE protection of animals. The States are a lot more accountable to the people then the Federal government is. I'm a whole heck of a lot less afraid of South Carolina (for example) allowing it then the Federal government banning it.

Anyway, at the State level, I reject your premise that protecting animals is binary for the absurdity that it is. Not allowing torture of dogs does not mean that you can't humanely kill cows and eat them (even though as a vegetarian I don't) and it has nothing to do with killing bugs driving your car or building your house. I'm sorry that gray bothers you that local governments are going to have to define what's "Torture" and therefore illegal, but welcome to life, it's gray.

[Irn-Bru]

Just curious IB. What makes a being a moral agent? Is it the ability to determine right from wrong? Or does reason come into the picture?

The ability to determine right from wrong is an aspect of reason. Otherwise its reaction (if an advanced, learned one). So yes, I'd talk about it in terms of reason.

One distinction that's helpful to make, and which many philosophers do, is 'personhood.' In order to be a person a living substance needs to be capable of thoughts like these: "I wonder if I'm going to die someday" and "I don't think I will ever understand you!" Any living thing has an 'I'-perspective as the first 'I' is used in that sentence. A first person perspective is the 'work' that second 'I' does.

Abstract thought might be another of the criteria; intentional states (i.e., what separates distinctly-human action from instinct or brute reaction) might be still another.

All of these, as I'm arguing anyway, would be preconditions for being a moral agent. So, just because dogs (for example) 'feel bad' after taking a crap in the house doesn't necessarily qualify them.

[Irn-Bru]

I don't see how any of this establishes that we cannot protect dogs from torture.

Well you are being vague here. Of course we can protect dogs from torture, in many ways. But can I prosecute someone with criminal charges on behalf of the dog? I wouldn't think so.

But there's NOTHING wrong and EVERYTHING right with LOCAL/STATE protection of animals.

Here we go talking about governments again. . .and you're begging the question.

Let me put it to you this way: I'm addressing a meta-political issue here. This isn't about whether the State or the Federal government should do it, or if the Constitution allows one or the other. This is about what qualifies something to become a law: that is, what are the boundaries of legalized violence (as this is what all laws are). Does that make things clearer?

The question isn't whether we can sleep better at night knowing that there are laws against dog torture. My question is: what are the necessary and sufficient conditions for making any law, and how do these conditions apply to animals?

[Irn-Bru]

This should be good.

Yes. . .I find this much more interesting than political discussions in general and infinitely more interesting than party-politics discussions.

What makes one a "moral agent"?
Is it the ability to determine "right" from "wrong"? If that is the case, does the ability to understand social "rules" constitute an understanding of right and wrong?

If so, it is true that. . .Canids are fully aware when they have violated rules, and demonstrate this awareness. . .Are they, therefore, "moral agents"?

See my earlier posts for a partial answer to this. I don't think that dogs display an abstract sense of 'right' and 'wrong,' only learned conditions.

Consider this example: a human person can sit and ponder the meaning of life for a week, and emerge from the room a completely "different" person with all kinds of personality changes and new behavior that are self-motivated. Environmental conditions and stimulus-and-response aren't sufficient for explaining behavior in human beings.

If a dog could show some similar capacity for self-directed changes it might make for a stronger case.

Is it the ability to recognize "self"? All apes are capable of this... but it's also true that there are other species that can recognize "self" in a mirror... elephants, some birds (especially parrots), and possibly some species of dolphin are able to recognize themselves in a mirror. Are they "moral agents"?

I would dispute your claim that we have evidence of self-awareness in apes, dolphins, and other higher-order species on non-human animals. (From what I've read dolphins appear the closest to have a sense of 'self'.) I've read a good amount of the literature on this, and even with many researchers who want to find the evidence there really haven't been any clear examples or demonstrations.

Is it the ability to grasp certain abstractions? That would eliminate about 20% of humanity, and leave an odd mix of humans, parrots, and chimps as the world's moral compass. That would certainly upset the apple cart.

Again, I've never seen any evidence that any n-h animal is capable of abstractions. They can show that crows, for example, can count 1, 2, 3, and then after that they have a concept of "many." But while this shares some things in common with what humans can do—and hell, we should expect to see this kind of thing in beings that get 'close' to what humans can do—there still seems to be a difference in kind, not just degree, from what humans can do.

As for eliminating 20% of humans, I think we should be careful about who and what we qualify. Is an otherwise normal person who is sleeping not self-aware just because they aren't doing it that moment? I wouldn't think so. Children can't exercise these capacities but they have them potentially. Whenever a human appears to fail one of these 'personhood' tests we should keep in mind that there's something wrong (or developing) with the human being that can't exercise the capacity. But there's nothing "wrong" with the dog that can't; that's just what it means to be a dog.

[Countertrey]

Abstractions are grey, FFA. What shade is "many"? What shade is "infinity"?

My post was purely rhetorical, btw. I have no investment in any of the questions.

I do not see canids as moral agents, in the same way you don't.

I concur that there is room to protect animals under the law from cruelty, without endowing them with Constitutional rights.

I'm not certain that the Federal government has any standing, but that is really moot. The law, flawed though they are, are in place, and (clearly) being enforced.

[Irn-Bru]

Abstractions are grey, FFA. What shade is "many"? What shade is "infinity"?

I agree that there is grey. There are gradations and degrees, etc. But does it follow that there are no categorical differences? To infer that seems fallacious to me.

My post was purely rhetorical, btw. I have no investment in any of the questions.

Well that's OK. They are at least the right "kind" (no offense ) of question.

[PulpExposure]

Therefore Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.

That reasoning's sick. No wonder the Supreme idiots make the rulings they do. The intent of the interstate commerce clause was to smooth trade, not rationalize Federal power which is all that ruling does.

That's precisely the reason for it; to regulate interstate trade, you have to grant someone final arbitration between the states, and that's the role of the federal government (clearly delineated in the Necessary and Proper clause).

Dislike the ruling all you want, but this interpretation of the Commerce Clause is a unilateral one held by lawyers, even by those who espouse limited federal power, such as the noted federalists Scalia and Rehnquist.

Scalia's concurrence on the Commerce Clause in Raich v. Gonzalez (the medical marijuana case JPB22 aluded to above)

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As Lopez itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could … undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.

As Rehnquist wrote in US v. Lopez

Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

Now, of course, you as a businessman may have a better grasp on law than myself, as I'm just a lowly practicing lawyer, but are you really so egotistic to believe that you understand Constitutional originalism better than Scalia?

[Countertrey]

but this interpretation of the Commerce Clause is a unilateral one held by lawyers

Which means what, exactly? That the only ones who hold this view are lawyers?

[PulpExposure]

but this interpretation of the Commerce Clause is a unilateral one held by lawyers

Which means what, exactly? That the only ones who hold this view are lawyers?

No, sorry, maybe I wasn't clear enough. It's the commonly held view of the Commerce Clause, from legal theorists, to practicing lawyers. It's so commonly held that this interpretation isn't even controversial in the least...and that says a hell of a lot when you think about how contentious and self-important lawyers are (they all think their interpretation is correct). It's almost an absolute and completely accepted view of it (and I say almost absolute because I'm sure there's some legal crackpot out there who disputes it...but then again, there are "historians" out there who also believe the Holocaust never happened...).

Maybe your point is snarky in that you don't think the viewpoints on the law held by lawyers are valid. If so, I also suppose you deride the views that doctors hold about antibiotics...or surgery.

[Countertrey]

Most of us who believe that the 10th amendment actually means something just sit in astonishment when we see the Commerce Clause used to justify such insults and intrusions into state and individual rights as the US Department of Education. It's just astounding to me.

But then, that's not about the "Rights" of dogs, is it?

[Deadskins]

Is it the ability to recognize "self"? All apes are capable of this... but it's also true that there are other species that can recognize "self" in a mirror... elephants, some birds (especially parrots), and possibly some species of dolphin are able to recognize themselves in a mirror. Are they "moral agents"?

I would dispute your claim that we have evidence of self-awareness in apes, dolphins, and other higher-order species on non-human animals. (From what I've read dolphins appear the closest to have a sense of 'self'.) I've read a good amount of the literature on this, and even with many researchers who want to find the evidence there really haven't been any clear examples or demonstrations.

There was a very interesting article in the March issue of National Geographic (it was the cover article; "Inside Animal Minds" with a picture of a Border Collie), that discussed this very topic. If you get a chance, you should definitely check it out, if you haven't already.