Wednesday, March 28, 2018

Dogs on Planes, Hunting, and Human Behavior

by Sherry F. Colb

In my Verdict column this week, I consider the question why the woman whose dog Kokito likely suffocated to death inside a United Airlines overhead bin did not release her dog to save his life. I suggest that the Milgram Experiment of the 1960's, a study that may not actually explain the Nazi phenomenon that it was intended to investigate, has something to tell us about what happened on that airplane. To boil it down to one sentence, the woman may have felt completely unable to disobey the flight attendant who told her that the dog carrier had to be in the overhead compartment.

The reason we might feel it necessary to explain the woman's behavior in this case is that many of us agree that the woman should have opened the bin and saved her dog. Why? Because Kokito was suffering and died unnecessarily, and many people believe that we have an obligation to prevent this from happening to a vulnerable and innocent animal.

So how do we explain hunting? How do we account for the fact that upwards of thirteen million people in the United States have gone hunting this year, if the numbers in 2011 are typical? Why do they do it? Hunters give an assortment of reasons. They say that they enjoy the outdoors, they like the kinship they develop with the other people with whom they hunt, they appreciate the challenge of having to track an animal, anticipate his or her movements, and finally aim and fire.

Although these explanations might sound like reasons, they are actually just motives. Hunters enjoy these aspects of hunting, and that is why they hunt. A serial killer might say some of the same things about his pursuit: he likes the thrill and the challenge of stalking his prey and of successfully bagging it. Hunters have another thing in common with serial killers: they often take a trophy from their victims, skin, hair, or a body part. In both cases, the killing gives the killer a sense of accomplishment and the desire to remember and relive the whole experience in the future.

I want to be clear that I am not saying that hunters are the same as serial killers. I am examining the justifications offered by hunters for hunting. And if those justifications are no stronger than what a serial killer might say to justify serial killing, then that might cast doubt on the legitimacy of both enterprises.

Ah, but hunters also provide some redeeming features for their acts, features not shared by the exploits of most serial killers. Hunters often donate the flesh of their animal victims to poor people to eat. Serial killers, by contrast, do not donate their victims' organs for transplantation. Hunters also say that the fees they must pay to hunt are used to support conservation. And best of all, they argue that hunting prevents animal populations such as the white deer from becoming too large, leading to starvation. Hunters also cite the fact that hunting is a tradition.

There are responses to each of these claims. First, one can help poor, hungry people without anyone having to aim a weapon at an animal. And if it is possible to do something charitable without killing anyone, then it becomes harder to justify an insistence on killing.

Second, if paying hunting fees supports worthwhile projects, then maybe we should all pay the fees and not kill anyone. We might think of our tax system as a method for collecting money to accomplish important objectives without the need to license any killing.

And what about the third redeeming act -- saving animals from overpopulation? Well, if that is a priority, then it is difficult to explain why so many hunters choose to aim their weapons at male deer victims rather than at does. If one wants to limit population through slaughter, one kills females, the members of the herd who provide a ceiling on possible offspring by their own number, not males, even a small number of whom can inseminate a large female herd. If one's goal were instead to collect an antler trophy or encourage the population growth of one's preferred killing targets, though, then shooting the males would actually make sense. And in any event, we would not countenance the murder of individuals to help stem overpopulation among humans, so why should we accept it when the victims are animals?

Fourth and finally, the fact that a particular form of violence is traditional is actually a reason to question it--because traditions have generally enjoyed a freedom from scrutiny--rather than a reason to think it is a beneficial or even innocuous activity. Some of the worst American practices, enslavement, racism, discrimination, xenophobia, female disenfranchisement, and lawful marital rape all endured for a very long time, despite being despicable, on account of their longstanding traditional nature.

Should we be surprised that the arguments that hunters and their allies make to support hunting do not survive careful scrutiny? The first "reasons" for hunting are in fact the real ones: people hunt because they like it. They use weapons to kill animals who want to live, who have families and others with whom they have bonded, who did nothing to harm or threaten the hunters, because hunters find it fun, exciting, and satisfying. The various allegedly redeeming features of the practice are there mainly to rationalize the practice after the fact. People can say, "I feel good about hunting, because I know poor people will be helped by my activity."

I have been reading a comprehensive book about the history of American racism, Stamped From the Beginning. I did not realize that the racist lies that our founding fathers told about African men and women emerged only after Europeans began kidnapping and selling them, not beforehand. That is, it was not white supremacist, racist beliefs that led people to engage in the African trade in enslaved persons. It was instead the desire to buy, sell, and own enslaved persons that led to the trade in enslaved persons. Once slavery was up and running, though, people felt the need to come up with arguments for why it was somehow okay to carry out the evil of slavery, so they did. They said, without evidence, that whites were superior. Nowadays, the racist lies persist but serve a different function; they provide many white people with an account of white success in this country that relies on white "merit" rather than on a society saturated in racism, racism that allowed an utterly unqualified white man to become President of the United States. And for whites who have not succeeded, racism allows them to feel wronged by successful African Americans like Barack Obama who supposedly took what was rightfully theirs.

In some ways, then, I have been asking the wrong question about hunters. I have asked what explains hunters' willingness to carry out violence against gentle and harmless individual animals. I mistakenly thought that this question was similar to the one I posed about the woman whose dog died in the overhead bin on a United Airlines flight. But in that case, there was a riddle, because the woman almost certainly wanted to free her dog from the overhead bin. The riddle was why she failed to do what she wanted to do and what was the right thing to do. But hunters want to hunt, and that is why they do it. There is no need to search for other explanations. The rationales that people articulate are flimsy and unpersuasive, because they were never meant to persuade anyone who regarded the behavior as unnecessary violence and cruelty to animals. Like a fake i.d. used by high school students, rationalizations for hunting are held up by perpetrators and winked at by bystanders, neither of whom has any real desire to challenge what is going on. Like many such rationalizations, people come up with them only after making and carrying out the decision to commit an immoral act.

A discussion of hunting would be incomplete without a mention of animal consumption. Some people criticize hunting as cruel and/or violent while simultaneously consuming meat, dairy, and eggs. Hunters sense the hypocrisy here and say "at least I do it myself rather than paying for it and picking up the end result at the supermarket." The hypocrisy may play a role in inhibiting gun control advocates from saying, as they should, "I don't care if gun control might interfere with hunting; hunting is violent and immoral." Instead, such advocates say that they "respect" the hunter and that the gun control they propose would not negatively affect him. Why does federal law have to take hunting into account? Is it because of a specious and unconvincing interpretation of the Second Amendment that a 5-4 split Court produced in District of Columbia v. Heller? Maybe, but given that citizens and politicians alike regularly propose unconstitutional measures without worrying about the courts, I think it may be something else.

It may be a desire to avoid the appearance of hypocrisy. When someone eats meat, dairy, or eggs, or  wears leather, they do pay for someone to commit violence and cruelty against animals. There are no "humane" animal products. And hunters are right to point this out, although most hunters in the U.S. are likely consuming animal products from the supermarket and slaughtering them in the woods. If you are moved by the argument that hunting is wrongful violence, then allow yourself to say so. You may discover that you are not alone, as only about six percent of the country hunted in the last year. And once you give voice to that sentiment, remember the approximately one million land animals slaughtered every hour in this country for food products. Remember too the even greater number of fishes, who also bond with one another and have feelings and thoughts, who die for people's tables. And remember that you can opt out of both slaughterhouse and hunter violence against animals, by going vegan, starting today.


MasterGrisha said...

I believe that, for meat-eaters, hunting is a more natural and animal-friendly way to source food than factory farms and the like. Unfortunately, hunted meet is too scarce and too expensive to be available for mass consumption.

Kara said...

So basically this whole thing was a vegans-are-superior and meat-eaters-are-Bambi-murderers screed ... and nothing more.

I've come to expect better from Dorf on Law.

Joe said...

Michael Dorf and Sherry Colb have written repeatedly -- though Sherry Colb does do so in stronger terms -- about their vegan beliefs in detail. They have even written a book on the topic while Colb wrote her own. They do argue that being a vegan is "superior" since animals deserve better than the alternative. It does look like this issue particularly causes Colb to be passionate though some bite does come thru from time to time in her often more academic style. "Screed" is a tad inexact -- she spent time to make her case, which is basically the m.o. around here.

Anyway, I thinking hunting and fishing can meet the test for unenumerated rights and in a vacuum would warrant extra concern as a liberty interest. But, time has shown the problems with both, including harm to third parties, so there is a strong enough state interest at least many cases to restrain it.

John Barron said...

Has the world gone mad? Whereas a district judge in New York granted a habeas motion for a chimpanzee, David Grimm, Judge’s ruling grants legal right to research chimps, Science Insider, Apr. 20, 2015, according to retired District Judge Nancy Gertner, judges are quite literally trained on “how you get rid of [pro se civil rights] cases.” Nancy Gertner (blog reply), Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations, Hercules and the Umpire (blog of Senior Judge Kopf of the District of Nebraska), Oct. 22, 2013.

The last time monkeys had more rights than humans in America, Charlton Heston was the star.

Back in the day, I used to be a vegetarian; I did it for the health benefits. But back then, no one exhibited the Talibani religious fervor of Ms. Kolb. Today, I have gone Paleo and again, for the health benefits. By our nature, we're omnivores, and the best diet we can adopt is the one we are genetically and environmentally suited to.

Vegan "go-to" foods like soybeans aren't that good for you, truth be told.

The cat that owns us (cats are management; dogs are employees) enjoys catching birds for sport. She doesn't need to (or, even bother to) eat them; we have adopted a "catch-and-release" program. That is simply her nature; we don't think of her as a hypocrite. By the same token, it is absurd to call us hypocrites for acting as nature designed.

barcrunchsub said...

Prof. Colb seems to be conflating nature’s norms and society’s values. We do not tolerate serial killers because we cannot have a society where people are free to kill other members to satiate any urge. Hunters would point out that they were not in society when they hunt, they are in nature, and a part of it. In fact that is the appeal.

After reading this, I was wondering what Prof. Colb thinks of infantrymen. Infantrymen do all sorts of things that no one would tolerate in their society. They kill people on sight, they are trained to do so, and those that get good at it are given special recognition or rewards. Yet no one compares them to serial killers (or flight attendants) because most people realize that infantrymen are not in society when they commit these acts - they’re on a battlefield. And as unpleasant as a battlefield can be, they do require different rules, and these rules have some appeal to people who volunteer for our armed forces. (And i’m not saying nature is a battlefield necessarily, I’m only using it as another example where societal norms are inapplicable.)

The real sin is when we bring animal into our society, airplanes or anyplace else - domestication.

Joe said...

I'm not sure -- if you grant animals have interests ["natural rights" if one likes] we must respect -- how much the nature point really helps. We have determined that some minimum degree of respect for [at least some] animals is necessary as well. The animals are not merely in "nature" either -- the hunting is done on U.S. territory and so forth.

The reply also references the battlefield and its "different rules," but there is still some bottom line limit there. War repeatedly involves heinous activity and non-civilized impulses, which very well might lead us to compare soldiers to "killers" (in fact, they repeatedly are) or worse. Bare "societal norms" do have some application.

Anyway, as seen in the first part of my comment, animals aren't merely "out there" -- they are part of the nation as a whole. People also go out of their way "into" their habitat, which would seem to be a bigger "sin" in certain ways. The particular animals that are domesticated in large numbers are those who have over thousands of years evolved into domesticated animals. Civilization is "home" for dogs and cats generally.

Like humans, they at times aren't properly cared for, but that's another matter.

robert moss said...

I'm missing something. If the woman "should have opened the bin and saved her dog," the dog was already in the bin. I inferred from the accounts that no audible sounds of struggle emanated from the bin, and the woman was unaware that the dog had no oxygen. Or does Sherry mean "should have opened the bin as soon as no flight attendant was looking?

Shag from Brookline said...

Here's some perspective from Mark Twain's "The Lowest Animal" on the subject of war:

"The higher animals engage in individual fights, but never in organized masses. Man is the only animal that deals in that atrocity of atrocities, War. He is the only one that gathers his brethren about him and goes forth in cold blood and with calm pulse to exterminate his kind. He is the only animal that for sordid wages will march out, as the Hessians did in our Revolu­tion, and as the boyish Prince Napoleon did in the Zulu war, and help to slaughter strangers of his own species who have done him no harm and with whom he has no quarrel."

Since Twain wrote this essay, much worse has happened, and continues.

Twain provides many other examples to contrast "The Lowest Animal" from other animals. But I don't think he was a vegan.

Asher Steinberg said...

I'm generally sympathetic to your positions on these issues, but one question that's always troubled me in this context that I'd appreciate your thoughts on is whether omnivorous non-human animals, that could survive on plant life, behave wrongly when they hunt and eat other non-human animals. If not, why not, and if it's incorrect or a sort of category mistake to say that an omnivorous non-human animal does act immorally in hunting and eating other animals, what, if anything, does that tell us about whether non-human animals have rights? (Which isn't to suggest that positive rights on animals' part are exhaustive of the reasons we have not to kill animals.)

John Barron said...

Animals compete for resources. Male lions will kill the cubs of other males, whereupon the females go into estrus. This keeps the population down, as lions have few predators to worry about.

War is part of the human survival strategy. Always has been. We've just gotten really good at it. And that's why we need those guns you hate.

[Off-topic for Shag:

Feel free to go at it: (Barnett/Bernick)]

Shag from Brookline said...

[John's Off-topic: Is that B/B cite their "Ghostbusters Spirits" originalism that comes into play in the New Originalism's construction zone? One needs a scorecard for the various theories of originalism.]

By the Bybee [expletives deleted, despite Gina], if war is what we're really good at, perhaps Revoltin' John Bolton is arriving just in time. But even really better are those with bone spurs and bad knees who evade wars so that they might later get others to serve. And Dick Cheney makes it a trio.

John Barron said...

As General Patton once said, "War isn't about dying for your country. It's about making the other SOB die for his." The list of Republican chicken-hawks is too long to repeat here, and any list is far from complete. E.g., overlooks Mint Rmoney and Tom Tancredo (psychiatric issues).

[OT: Really don't get you, Shag. You would rather live under the brutal thumb of a band of black-robed dictators who dispense an arbitrary and capricious brand of ad hoc, ex post facto "law" than embrace a rational, principled, transparent, and repeatable way of interpreting anything from the Bible to your grocery list. While I'm sure we'll have an opportunity to revisit the topic when ES pimps his latest steaming pile of sophistry, I thought you might be interested in B/B's research on "due process of law." Every term of art in COTUS comes from the common law and common sense--even the relatively opaque ones.]

Greg said...

While most of these points are well-reasoned, I don't feel that the land management and overpopulation point is adequately addressed. Professor Colb quite rightly points out that even though land bureaus push for hunting of does over bucks, hunters generally prefer bucks for display purposes. This is a legitimate condemnation of hunting practice, but doesn't address whether the need for population control is real.

Since I'm not an expert in land management, I will trust the experts that certain forms of hunting are necessary to control animal populations so that the larger ecosystem is improved due to controlling competition for limited resources. Presumably doing so preserves those resources for other animal populations and ensures that even the hunted animal does not have mass deaths due to starvation. This proposition is certainly refutable, but Professor Colb does nothing to refute it.

If we accept the need for population control, then Professor Colb's only response is to question the legitimacy of killing one group of overpopulated animals to ensure that other animals don't die of starvation or that the resource levels are sustainable. Essentially her argument is that it is more moral to let habitat be devastated and allow mass animal starvation through human inaction than to hunt, thus causing animal deaths through human action. While that may be a philosophically morally defensible position due to the action/inaction distinction, it's a damn cold view of causing significant damage and suffering through inaction.

I'll accept that we don't explicitly morally permit killing of humans to prevent overpopulation, but I would argue that the reasons for this are twofold. First, what is often termed overpopulation really isn't, but is instead a problem of wealth distribution. There is plenty of food to go around, it's just that we fail to distribute that food to hungry people. My second argument would be to reject the broader premise altogether. We DO implicitly allow killing of people due to overpopulation. We call it war. People have been fighting wars over limited resources for millennia, and it's often considered justified. We dress it up in words about oppression or ethnic hatred but often that's just window-dressing for what is really a fight over land and resources. In a truly resource-constrained society, it isn't clear that some form of population control that included killing humans (perhaps above a certain age?) would be morally wrong, or worse than the alternative of constant war over those limited resources.

Professor Colb is likely right in her overall point that most hunters hunt because they like to hunt, not because they like paying the state to do the state's work for them. This doesn't mean that there are no land management contexts where hunting is necessary and proper.

Shag from Brookline said...

John's OT closes with this:

"[... Every term of art in COTUS comes from the common law and common sense--even the relatively opaque ones.]"

Does this suggest that the Constitution is to be interpreted and construed in the manner of the common law? Didn't the common law reflect "judge-made" law? Check out "The Living Constitution" by David A. Strauss at:

Joe said...
This comment has been removed by the author.
Joe said...

"I will trust the experts"

I will bet my non-existent farm that Prof. Colb can find experts to show hunting is not necessary.

John Barron said...

[Shag: Easy answers to your challenge, but let's have this discussion in a forum where it is on-topic. Be happy to address your points there.]

We see serious predators--cougars and bears--from time to time in the 'hood. And the deer and elk have learned to hang around houses because they know that predators prefer to avoid them. Rational population management requires a periodic culling of the herd, and a raccoon can cause an awful lot of damage to your house.

Professor Colb can be as squeamish as she wants to be. My wife insists that I get rid of whatever the cat drags in--which has ranged from a bat to a bunny to the occasional snake--but we are current members of PETA (People Eating Tasty Animals), and can see no reason to change. We're going to be worm-food soon enough, and the circle of life will continue.

Joe said...
This comment has been removed by the author.
Joe said...

"This proposition is certainly refutable, but Professor Colb does nothing to refute it."

She does refute how hunters operate, thus questioning their motives:

And what about the third redeeming act -- saving animals from overpopulation? Well, if that is a priority, then it is difficult to explain why so many hunters choose to aim their weapons at male deer victims rather than at does. If one wants to limit population through slaughter, one kills females, the members of the herd who provide a ceiling on possible offspring by their own number, not males, even a small number of whom can inseminate a large female herd. If one's goal were instead to collect an antler trophy or encourage the population growth of one's preferred killing targets, though, then shooting the males would actually make sense. And in any event, we would not countenance the murder of individuals to help stem overpopulation among humans, so why should we accept it when the victims are animals?

"If we accept the need for population control, then Professor Colb's only response is to question the legitimacy of killing one group of overpopulated animals to ensure that other animals don't die of starvation or that the resource levels are sustainable."

Her final point is a last argument after questioning the motives of hunters. In a single post, she does not provide a comprehensive discussion of her views of land management. If pressed, I'm fairly sure she would offer a range of other options, including ones that do not favor a few animals that hunters target. The selective nature of hunting -- including favoring certain populations -- underlines how "land management" is a questionable argument to justify the practice.

She used the term "murder." So, she doesn't necessarily deny that might be moral in certain cases to use certain means of euthanasia or more likely birth control to reduce animal populations. The use of "killing" is rather confused there.

"This doesn't mean that there are no land management contexts where hunting is necessary and proper."

It is still fairly unclear to me that hunting is necessary and proper. The rather arbitrary usage of war doesn't really help the argument in my view & she is likely to expand on that if given the chance.

Shag from Brookline said...

Is it la egal blog norm for a commenter who starts "Off Topic" can then shut it down?

I understand that cremation and "burning in hell" are ways to avoid becoming worm-food.

Query: Is war a form of human population management?

John Barron said...

Shag, I merely wanted to apprise you of the fact that there was an open forum for us to have a discussion of our favorite topic that wouldn't disturb other readers. "The Killer Bs" added material historical support to the originalist understanding of "due process of law," and it would have been a fertile field for us to debate in.

As for Strauss: Next time, you'd be better off quoting Bach or Wagner. He needed so much straw to build that edifice, he had to import it from Peoria. All he had to do to have it interred was to ask Posner.

[Hoping ES can do better.]

John Barron said...

Thread Name: Mad Magazine parodies
Subject: RE: Mad Magazine parodies


Ok from memory, so don't crucify me.

WAR (sung to to the tune of More)

War helps to keep the population down.
War means less people in a crowded town.
War let's us try out new artillery.
War gives our soldiers foreign trips for free.

War helps the USO.
Yes, War brings a Bob Hope show.
Yes, War gives us lots enjoyment
And it cuts down unemployment.

John Barron said...

[OT: Just for you, Shag, I'll respond to Strauss:

Strauss: “For an originalist, the command was issued when a provision became part of the Constitution, and our unequivocal obligation is to follow that command. But why?”

Because the alternative is that “my Ruler [would be] a majority of the nine lawyers on the Supreme Court.” Obergefell v. Hodges, 576 U.S. ___, ____ (2015) (Scalia, J., dissenting; slip op. at 2).

Abraham Lincoln summarizes the problem ably: “[N]o man is good enough to govern another man, without the other’s consent." Abraham Lincoln, Speech (on the Kansas-Nebraska Act, Springfield, IL), Oct. 16, 1854. We have a document in hand [the Declaration of Independence] declaring our lack of consent. If you would not willingly suffer my absolute rule, by what right do you claim absolute rule over me? See, John Dickenson and Thomas Jefferson, Declaration of Causes and Necessity for Taking Up Arms, Continental Congress (U.S.), Jul. 6, 1775.

By stark contrast, it is logically impossible for me to tender effective consent to your Living Constitution, as I have no idea what is in it. And neither do you. As Suetonius records, the Roman emperor Caligula imposed taxes on food, lawsuits, and wages, but did not publish his tax laws; as a result, “great grievances were experienced from the want of sufficient knowledge of the law. At length, on the urgent demands of the Roman people, he published a law, but it was written in a very small hand, so that no one could make a copy of it.” Suetonius, The Lives of the Twelve Caesars 280 (trans. A. Thomson; Bell, 1893), Ch. 4, § LXI. If anything, our predicament is even worse: We can read the laws until we go blind, but we cannot rely on them. We literally endure a regime of “unknowable law,” wherein even the hidebound pronouncements of the United States Supreme Court barely even qualify as polite suggestions.

Under a living Constitution, words mean nothing and doctrine, even less.

The doctrine of stare decisis creates a reliance interest, allowing people to plan their affairs with confidence and bolstering public faith in the judiciary as “a source of impersonal and reasoned judgments,” . Moragne v. States Marine Lines, 398 U.S. 375, 403 (1970). Conversely, if a judge is free to decide a case one way on Tuesday, and decide a factually indistinguishable case the other way on Thursday, it shatters the illusion of the rule of law. Significant uncertainty in application of the law impairs everyone’s liberties, for when “one must guess what conduct or utterances may lose him his position, one necessarily will ‘steer far wider of the unlawful zone,’” Speiser v. Randall, 357 U.S. 513, 526 (1958) (citations omitted); “the value of a sword of Damocles is that it hangs -- not that it drops.” Arnett v. Kennedy, 416 U.S. 134, 231 (1974) (Marshall, J., dissenting). “Liberty finds no refuge in a jurisprudence of doubt.” Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 844 (1992).

This is the evil Raoul Berger identified 40 years ago. Either we are a Republic governed by law, or a judocracy governed by men. There is no third option.

Shag from Brookline said...

Didn't Raoul Berger claim evil in Brown v. Bd. of Educ. (Unanimous, 1954)? John, The Ghostbusters Spirits have gotten to your version of originalism. Was America a Republic governed by law during the many Jim Crow decades?

You, john, was the one who said:

"[... Every term of art in COTUS comes from the common law and common sense--even the relatively opaque ones.]

I guess Strauss is too constitutionally melodic for you (although, as Bob Hope used to sing, "Thanks for the Memories" for your rendition of "War" and its connection to human population management which has some relevance to this post.)

John Barron said...

Strauss is the PBR of constitutional interpretation--damn near impossible to swallow. Even Eric has more game. But all of your tired objections have been asked and answered over at Volokh,, which is where I wanted (and, still want) to have this convo.

You're still avoiding the critical issue more aggressively than Agent Orange, avoiding Stormy Daniels questions....

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