For once, California is right about something: its attempt to improve the treatment of livestock.
For once, California is right about something: its attempt to improve the treatment of livestock.
T he “Melian dialogue” in Thucydides’ History of the Peloponnesian War recounts an extraordinary exchange. The ancient Greek historian recounts how Athens gave an ultimatum to the neutral city-state Melos: Join our side in the war against Sparta or else. A delegation of Athenian generals abandoned any pretense to moral principle in explaining their position to the Melians: “You know and we know, as practical men, that the question of justice arises only between parties equal in strength, and that the strong do what they can, and the weak submit.” Their slogan might have been: The strong can do no wrong.
The story doesn’t have a happy ending. When Melos refused to comply, the Athenians destroyed the city and recolonized it for themselves. Things turned out badly for Athens, too, once Sparta won the war and dominated them. The philosophy of power that the generals had articulated probably seemed less appealing at that point. Of course, sadly, this wouldn’t be the last time in history that one group of humans with the upper hand acted as if power and its exercise were self-justifying.
“Might makes right” is a bad principle. Morally, we must consider the interests of weaker parties. We shouldn’t treat other human beings as expendable because they’re less technologically advanced, because they’re less politically powerful, or for any other reason. The same, I believe, is true about our relationship with other creatures. We shouldn’t treat sentient animals as inanimate objects that exist for our exploitation. They’re not humans, but their well-being still matters.
Consider the tens of billions of pigs and chickens each year who are doomed to live miserable lives in concentrated animal-feeding operations (CAFOs) — factory farms — so that we can have meat, eggs, and dairy as cheaply as possible. Predation is natural, but these ruthless methods, which are only about a century old, are neither natural nor moral.
Californians, say what you will about them, have had some appropriate scruples about this. In 2018, by a margin of 63 percent to 37 percent, California voters passed Proposition 12, which “prohibits confining farm animals (egg-laying hens, veal calves and breeding pigs) in a cruel manner and prohibits the sale of products . . . from farm animals confined in a cruel manner into California commerce.” The law also addresses sanitation and health concerns, but I’ll focus on ethics.
Consider the treatment of female pigs used for breeding. Currently, most farmed sows spend their four-month pregnancies in “gestation crates” that aren’t much larger than their bodies, leaving them unable to turn around or perform other basic movements. This causes boredom and distress, as it would for any animal that in nature would roam freely, and a host of physical ailments, such as lesions from rubbing up against the sides of their crates in frustration.
Upon the birth of their piglets, they’re transferred to different crates that prevent them from making nests and interacting normally with their young. Supposedly, this is for their good, because it prevents them from accidentally crushing their young and protects them from other pigs. But it’s necessary only because they’re confined so closely in the first place. They could hardly have survived as a species if they couldn’t avoid crushing their young in the wild. Proposition 12 requires that each adult pig have 24 square feet of floor space. That might sound generous, but a four-by-six-foot pen is still quite small for an animal the size of an adult pig.
This isn’t the first time that California has passed such a law. In 2004, under Governor Arnold Schwarzenegger, they passed a law banning foie gras, a delicacy created by force-feeding geese and ducks until their livers expand to up to ten times their natural size. This ban remains in effect for restaurants, though a 2020 circuit-court ruling limited the law, allowing individual citizens to purchase it.
Proposition 12 survived a litigation challenge at the circuit level, and the decision has been appealed. The U.S. Supreme Court will start hearing arguments in the case of National Pork Producers Council & The American Farm Bureau Federation v. Karen Ross [the secretary of the California Department of Food and Agriculture] et al. in October.
The challenge comes, predictably enough, from Big Agriculture. They object that Proposition 12 unconstitutionally regulates commerce in other states, violating the so-called “dormant” commerce clause of the Constitution, since pork producers in all states must adopt California’s standards if they want to sell their products in California. Yet major companies such as Hormel, Tyson, and Smithfield have announced that they’re willing and able to comply with the law, even if they’re not overly enthusiastic about it.
A group of lawyers points out in an amicus brief responding to the petitioners that this implicit clause is typically invoked to prohibit protectionism between the states. For instance, California couldn’t impose an import tax on goods from Oregon. But if states were prohibited from passing any law that had economic ramifications for other states, that would leave no room for states to be “laboratories of democracy.” So the challenge lacks a sound legal basis.
The Biden administration and the U.S. Department of Agriculture endorse the challenge, siding with Big Agriculture and against states’ rights, the most plausible interpretation of the Constitution, and the 7.5 million citizens who voted for the measure. Of course.
Law and morality don’t always coincide, but morality is relevant here. The amicus briefs filed in favor of the petitioners implicitly concede as much. They characterize the Proposition 12 standards as “extreme” and always refer to it as an attempt to regulate commercial activities that Californians “deem” cruel or “perceive” as cruel. This sort of language suggests that the practices Proposition 12 bans might not really be cruel.
The question that I’d like to see put to the petitioners in court is whether California must allow the importation of products that are cruel to animals — not merely perceived as being cruel, but truly cruel — against the will of a majority of California voters. Suppose that spectacle dog-fighting was legal and was big business in some states. Does the dormant commerce clause entail that other states must allow tickets to these events to be sold there? That would be an extremely onerous limitation of states’ rights.
The North American Meat Institute’s amicus brief asserts that “California’s legitimate interest in protecting farm animals from perceived ‘cruelty’ extends only to animals in California, and is fully met by Proposition 12’s separate restriction on how farmers in California house their animals.” That’s absurd. Presumably, if Idaho has a legitimate interest in banning the sale of tickets to spectacle dogfights that take place within its borders, on moral grounds, then Idaho also has a legitimate interest in banning the sale of tickets to dogfights that take place on the other side of the Utah border.
The petitioners might concede that this regulation would fall within states’ legitimate interests but insist that the kind of confinement that Proposition 12 bans isn’t cruel. The burden should then be on them to explain why not. If a dog were confined for months in such a way that it couldn’t turn around, wouldn’t you call that cruel? Pigs are similarly intelligent creatures. They have the misfortune of not generally being considered as cute as dogs, but that, surely, doesn’t matter to their moral standing.
I hope California’s law is allowed to stand. That’s partly because I believe in federalism, but mostly because I believe humanity should abandon cruel agricultural practices in favor of genuine stewardship. Those who worry about animal ethics are often accused of overlooking the fact that humans are different from animals. But that’s the point: Only we can be humane.
Intelligence without moral direction is merely power, and it confers no more right to dominate than a club, a sword, a gun, or an atom bomb. Human intelligence guarantees that we’ll rule the world as long as we’re around (though who knows how much longer that will be?) The question, so long as we are around, is whether we’ll use it to rule wisely or continue to tyrannize our fellow creatures, and each other, just because we can.