September 24, 2007

Judge Posner: "a state is permitted, within reason, to express disgust..."

Upholding the Illinois Horse Meat Act, which banned the production of horse meat for human consumption.

Cavel International -- a Belgian company -- had been slaughtering 60,000 horses a year and exporting the meat to places where people like to eat horse meat: Belgium, France, and Russia. It was the last horse slaughtering plant in the country.

Here's Posner's opinion for the 7th Circuit (PDF):
Horse meat was until recently an accepted part of the American diet--the Harvard Faculty Club served horse-meat steaks until the 1970s. No longer is horse meat eaten by Americans..., though it is eaten by people in a number of other countries, including countries in Europe; in some countries it is a delicacy. Meat from American horses is especially prized because our ample grazing land enables them to eat natural grasses, which enhances the flavor of their meat.
The question was whether the law violated the negative Commerce Clause or the Due Process clause, and both issues depended on whether the law was wholly irrational. Posner serves up a meaty opinion.
[Cavel argues:] The horses will be killed anyway when they are too old to be useful and what difference does it make whether they are eaten by people or by cats and dogs? But the horse meat used in pet food is produced by rendering plants from carcasses rather than by the slaughter of horses, and the difference bears on the effect of the Illinois statute. Cavel pays for horses; rendering plants do not. If your horse dies, or if you have it euthanized, you must pay to have it hauled to the rendering plant, and you must also pay to have it euthanized if it didn't just die on you. So when your horse is no longer useful to you, you have a choice between selling it for slaughter and either keeping it until it dies or having it killed. The option of selling the animal for slaughter is thus financially more advantageous to the owner, and this makes it likely that many horses (remember that Cavel slaughters between 40,000 and 60,000 a year) die sooner than they otherwise would because they can be killed for their meat. States have a legitimate interest in prolonging the lives of animals that their population happens to like....

Of course Illinois could do much more for horses than it does--could establish old-age pastures for them, so that they would never be killed (except by a stray cougar), or provide them with free veterinary care. But it is permitted to balance its interest in horses' welfare against the other interests of its (human) population; and it is also permitted to take one step at a time on a road toward the humane treatment of our fellow animals....

But even if no horses live longer as a result of the new law, a state is permitted, within reason, to express disgust at what people do with the dead, whether dead human beings or dead animals. There would be an uproar if restaurants in Chicago started serving cat and dog steaks, even though millions of stray cats and dogs are euthanized in animal shelters. A follower of John Stuart Mill would disapprove of a law that restricted the activities of other people (in this case not only Cavel's owners and employees but also its foreign consumers) on the basis merely of distaste, but American governments are not constrained by Mill's doctrine.
Go to the PDF if you want to see how Posner manages to work in a photograph of a lion eating a birthday cake made out of horse meat. John Stuart Mill... a photograph of a lion eating a birthday cake made out of horse meat... I love these erudite opinions!

119 comments:

Mortimer Brezny said...

I found this opinion disturbing. I would appeal, and cite Schechter Poultry and Lochner, as well as Lawrence v. Texas. No, I am serious.

Mortimer Brezny said...

Oh, yes, and this law is a thinly-veiled Bill of Attainder.

Richard Dolan said...

Today seems to be a day for food opinions from the federal courts. An opinion by a magistrate judge in NH, using Green Eggs and Ham as the motif, was circulating earlier. (It related to a prisoner suit complaining that he didn't get the kosher food he wanted in prison, and was particularly disgusted with the hard boiled eggs served in prison. He included one of those eggs with his complaint; the magistate decided to have it striken from the record, and physically tossed from the docket. For those who are interested, here's the link:
http://blogs.wsj.com/law/2007/09/21/law-blog-federal-magistrate-of-the-day-james-muirhead/.)

Posner's brand of economic rationalism would be a remarkable engine of destruction it were applied generally in Due Process cases challenging legislative enactments -- destructive, that is, of the challenge rather than the legislature's handiwork, as it was here.

Christy said...

I was wondering why people keep giving my brother horses. Who knew they were so expensive to render?

Wade Garrett said...

I'd like Posner to show me some authority for the statement in the title of this post.

paul a'barge said...

our ample grazing land enables them to eat natural grasses, which enhances the flavor of their meat.

right.

that's why American meat producers deliberately pull cows off grass and feed them a diet of mainly corn.

What works on cows would work on horses. If any of these folks were being either honest or smart.

paul a'barge said...

States have a legitimate interest in prolonging the lives of animals that their population happens to like.

Have any idea what the quality of life will be like for unwanted horses who have outlived their value to their owners?

Hint: it will suck beyond belief.

Humane slaughter is preferable to a life of unspeakable suffering.

Seven Machos said...

States are permitted to make laws. People can govern themselves.

Maybe it's a bad law. But it's what the people of the state want. It's clearly not a violation of any aspect of the Commerce Clause because it's merely saying that you can't kill horses in Illinois for food.

Nor is it a bill of attainder. Come on. If this is a bill of attainder, then all of zoning law is one giant bill of attainder.

Wade -- The authority is the democratic process. We the people...government of the people, by the people, and for the people...all the silly stuff.

Eli Blake said...

It's been more recently than the 1970's that people ate horsemeat in America. I was once served a horse steak at the home of a family I visted in Montana, and I lived there from 1986-1988.

It wasn't half bad, either.

Wade Garrett said...

Seven - I know, I know, I know.

Don't you wish you were a Federal Appellate Judge? Then you could pontificate to your heart's content, wax philosophical, and rewrite entire bodies of law to conform to your philosophy, which seems to be based on taking a little empirical evidence as possible and stretching it to your heart's content.

Ann Althouse said...

How is Posner pontificating or imposing his philosophy? He names Mill only to say that the state legislature doesn't have to have that theory of law and allows to the legislature to have its way. It's the opposite of arrogant. Wade seems disappointed that Posner is not returning us to the Lochner era. It just seems as though he's raving about bad old Posner instead of reading and thinking about it.

Seven Machos said...

So agreeing with the principle that people can govern themselves is "pontificating" and "waxing philosophical"...

Tell us, Wade, what law did Posner rewrite by failing to nullify an existing law made by a legislative body very close to the pulse of the people it represents?

Further, since when is constitutionality based on "empirical evidence"?

Bad law is not unconstitutional. Some good law is not constitutional.

Come on, Wade. Really. I expect better from you. Are you horsing around?

downtownlad said...

And yet another day of our freedom being taken away from us.

Sigh.

knoxwhirled said...

and was particularly disgusted with the hard boiled eggs served in prison.

Wade Garrett said...

Okay, tell me that, if a liberal judge had written something as vague as "a state is permitted, WITHIN REASON, to express disgust . . ." the Federalist Society wouldn't be raving mad about how these wishy-washy liberal justices have failed to provide a clear rule of law.

Furthermore, if you don't think that law wasn't bought and paid for by large associations of cattle farmers, you're too naive for words. I realize that doesn't make it unconstitutional, but its amazing how upholding corporate favoritism qualifies as conservative jurisprudence these days.

Seven Machos said...

Our freedom? What are you talking about? Our freedom is to make laws about how the majority of us agree we ought to behave.

If you don't like the law, work through the legislative process to get the law changed. Don't go screaming to judges about how, since you don't like the law, it therefore can't possibly be constitutional.

Also, just out of curiosity, how many of the people here who just know that this law can't possibly be constitutional support strict gun control? I'm pretty moderate on the issue. I'm bringing it up to try to demonstrate how selective the mind can be when it comes to what can be categorized as freedoms which can't be taken away.

This is the same Constitution that mentions guns but not one single time mentions horse meat.

Seven Machos said...

Wade -- Bad law isn't unconstitutional. You remind me of The Jeffrey Toobin. You want a judge to overturn a law because you don't like it, not based on any principles of law.

But because there is no Constitutional issue here -- as you yourself have admitted -- a judge cannot do that on constitutional grounds. Your beef is with the legislature.

And, by the way, no, I wouldn't care if this was a "liberal judge." I can't stand most of the New Deal and think it was and remains a travesty, but it was merely bad law.

The way the personal is political for you lefties is outrageous.

Ann Althouse said...

Wade, you seem mad that Posner isn't taking us back to Lochner, but you can't really think that. You are genuinely confused. And I actually do doubt that the beef industry cares too much about 60,000 dead horses. I think the law really is much more about the way ordinary people feel about the animals that have special meaning for them.

Wade Garrett said...

I don't mean to take us back to Lochner at all. That's you, trying to put words into my mouth. I just think that this opinion is stupid, no matter how erudite you consider it to be. Also, if quoting a philosopher is erudite, then it should make room for the other 50,000 judicial opinions now considered to be so.

Also, horse meat is very expensive, and cuts into the market for high-end steaks. You don't think the beef industry cares about 60,000 fancy steaks here, 60,000 fancy steaks there? Why do you think we never see Argentinian beef in this country, though it is generally considered to be among the best, if not the absolute best, in the world?

Seven Machos said...

Wade -- Do you or do you not agree that the law is constitutional?

If you agree that the law is constitutional, then it absolutely and necessarily follows that Posner did the right thing when faced with the question: is this law constitutional?

You have switched over to arguing that the law is merely bad law. Fine. But again -- and again and again -- bad law is not unconstitutional.

You will be more coherent if you restrict yourself to one argument or the other.

george grady said...

Oh, so "a state is permitted, within reason, to express disgust", is it? Of course, expressing disgust is different than outright banning, but exactly how much disgust is needed to permit banning? Here are some things that some people are disgusted by: eating squirrel, eating beef, eating tofu, sodomy, abortion, smoking, drinking alcohol, interracial marriage, driving SUVs, wearing shorts. What possible bearing does your disgust have on my right to do or not do any of these? Seriously, this decision is just absurd.

Windbag said...

17% of the American diet, on average, consists of beef or pork products. A few thousand Trigger-burgers isn't going to cut into the filet mignon market.

Windbag said...

17% of the American diet, on average, consists of beef or pork products. A few thousand Trigger-burgers isn't going to cut into the filet mignon market.

Seven Machos said...

George -- I will play, only because I am embarrassed and saddened that you don't understand your own government.

Let's consider your list:

eating squirrel. There is no question that a state government could make this illegal. There are numerous rationales. The best is probably that squirrels carry disease.

eating beef. I think finding a rational reason would be difficult. More importantly, we live in a democracy. Any legislature that passed such a law would be thrown out hastily.

eating tofu. Finding a rational reason would be difficult. This is why it will never be banned. Who is disgusted by tofu? This is ludicrous. It's kind of weird, but no one morally detests it.

smoking, drinking alcohol, driving SUVs, wearing shorts. All of these should be able to be properly regulated by the States. Smoking is severely regulated, as is drinking alcohol. Not sure what your point is there. If SUVs are banned, it's going to withstand constitutional scrutiny.

sodomy, abortion. The whole wide world agrees that Roe is terrible law. The sodomy case -- as with the underpinnings of Roe -- was based on rights to use your body how you want to. That's different than killing a horse. I tend to disagree that States don't have the right to regulate these things, but the important thing to understand is the distinction drawn by the court. Sex has been deemed different than commerce.

interracial marriage. Banning interracial marriage is a clear violation of the Equal Protection Clause.

Bad law is not unconstitutional.

Trooper York said...

I, for one am disgusted by tofu.

Trooper York said...

Tofu is a crime against both god and nature.

george grady said...

Seven Machos:

I will play, only because I am embarrassed and saddened that you don't understand your own government.

I'm sorry I made you feel so awful. I assure you it wasn't my attention. I wouldn't want your disgust with me getting me banned or something.

Bad law is not unconstitutional.

You keep saying this like it means something. A bad law may be constitutional or not depending on, well, whether it's constitutional or not.

And in any case, I'm not a lawyer, merely a (somewhat) intelligent layman, so I feel no need to agree with any lawyer's or judge's claim that "Ewww, that's gross" is sufficient reason to permit something to be banned.

Windbag said...

I spent yesterday with the family at a theme park. I saw several people wearing shorts. If Moses had seen them, there would have been an 11th commandment.

Cedarford said...

I had horsesteak and it was very good. Remember at one time, when horses were the main form of transportation, Americans ate more horse than beef.

It is an excellent protein. If meat consumption was based on only eating lesser, dumber animals, pork would be banned.

What shifted American diets was a belief beef was more upscale than horse (which could be a stringy old nag worked to death and found 12 hours dead and undressed in a stall). Then beef became less expensive as cheap rail transport, refrigeration cars and storage, and cheap corn became plentiful.

Still, it is a huge waste, it is more nutritious, sweeter, and as tasty as a good beef steak. And banning it by law for human consumption is just the triumph of horse lovers over a smaller number of horseflesh eaters.

What's next? PETA-driven State laws banning people from killing Thumper, Bambi, and Rocky the Squirrel? That if deer herds must be culled then the venison must be fed to pets only or buried?

And I know that if horse flesh is banned in the USA, then you'll be seeing some big truckloads of lame horses crossing Borders under NAFTA for the Mexicans or semi-Froggies in Quebec to eat themselves or send on to more appreciative countries. And I imagine the black market or unofficial horse butchering industry will start up. "Hey Johnson, want to fill your freezer up with the Other Red Meat? I'm carving up a mare that died of colic. Help me out, and 200 pounds are yours." Or:

"Pssst! 95% lean hamburger! 2 bucks a pound! Proceeds go to Miss Emily's Riding and Dressage School."

Seven Machos said...

Okay, George. The legislature made a law. A party aggrieved by the law has challenged that law on constitutional grounds. Should the aggrieved party succeed?

Saying "I disagree with the legislature" does not allow a judge to strike down a law.

Seven Machos said...

banning it by law for human consumption is just the triumph of horse lovers over a smaller number of horseflesh eaters

Welcome to democracy, Cedarford.

george grady said...

Seven Machos:

The legislature made a law. A party aggrieved by the law has challenged that law on constitutional grounds. Should the aggrieved party succeed?

It depends. Does the legislature have the power to pass the law it passed? That's the deciding issue here. It is irrelevant whether the judge agrees with the legislature or not. What is relevant is whether the legislature has been granted the power to do what it says it can do. I know very little about Illinois law specifically, but I doubt the state has been granted the power to ban things based on their grossing some or even most of its constituents out. If you can point out this empowerment to me, I'll apologize and agree with you.

downtownlad said...

This law is completely unconstitutional.

Ever hear of the 9th amendment?

Bad law isn't unconstitutional.

Bad law is unconstitutional if the law is not rational.

And this law is not rational. It should be struck down.

Sloanasaurus said...

When I first read the post headlines, I thought it was going to be a reference to the Iranian president....

downtownlad said...

And there is absolutely nothing wrong with eating cat or dog either.

Pigs are more intelligent than both. I plan on tasting dog when I go to Korea. Mainly so that when I meet a dog owner I don't like, I can tell them I eat dog.

Seven Machos said...

I live in Illinois. Here are some things that are illegal here because they offend people:

1. Masturbating in public.
2. Playing music loudly on the CTA.
3. Panhandling.
4. Serving liquor 24/7.
5. Prostitution.
6. Peeing in the street.
7. Graffiti
8. Not cleaning up your dog's poop.
9. Smoking in a restaurant.
10. Serving foie gras.

Failure to find a rational relation between a law and some public good is almost impossible. Your law has to be really dumb to fail the rational relations test.

It is completely rational to be offended by eating horses, and that's enough to have a law. Period.

And Downtown, here is the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Your problem is that some people want the right to eat horse meat while others want the right to pass a law preventing horses from being eaten. Neither side is right. The only way to settle it in a free society is through the rough and tumble of the democratic process.

That sucks for you because you only like to sit on your ass and bitch.

Mortimer Brezny said...

Nor is it a bill of attainder.

Yes, it is. There is one company, just one. This law targets the one company. The bill of attainder need not specify by name the target, but if it robs the target of its livelihood because the target is disgusting or unpopular, it's a bill of attainder. Read the BofA cases.

1. A state does not have the right to express symbolic disgust. See Lawrence v. Texas. What do you think sodomy laws are about?

2. Lochner is paternalistic. I understand the argument that "Hey, striking down this law would be like striking down a minimum wage law," except here the paternalism is emanating from the legislature: you can't eat horse meat because we know what's best for you. No, you don't. I just ate venison tonight. get out of my digestive system.

3. As for Schecter Poultry, I think this is a vague policy preference that isn't actually a legal command. Posner all but concedes that by noting horse meat once was widely eaten and the basis for this law is just disgust. Look at Romer v. Evans. Animus/disgust is not a rational-basis.

Mortimer Brezny said...

It is completely rational to be offended by eating horses, and that's enough to have a law.

No, it isn't.

Mortimer Brezny said...

The best is probably that squirrels carry disease.

Ban cheese. Some people are lactose intolerant.

Seven Machos said...

Mort -- I agree that it's a bad law. I question whether you understand what a bill of attainder is.

A bill of attainder is when a legislature is a law that convicts someone of a crime without a trial. Here, no one was convicted of a crime. The legislature has deemed conduct that was once legal to be illegal. So, you can't do it any more. What you did before was legal and not a problem.

Any number of hypotheticals apply. You are the only prostitute in town and the town passes a law against prostitution. You have three-feet-high grass and the city says grass must be six inches or less. As long as you are not punished for your prior conduct that occurred before the law was enacted, the government is free to change the law as it wants according to evolving community standards.

I'm really surprised we have to go over this.

Seven Machos said...

Mort -- Is there anything in the Constitution that prevents a community from banning cheese within that community?

Ralph said...

Can the US Congress & Pres. prevent the export of horses, live or dead?

Mortimer Brezny said...

Is there anything in the Constitution that prevents a community from banning cheese within that community?

Is there anything in the Constitution that explicitly grants a city government that power, given that most cheese is imported from out-of-state or from foreign governments?

Mortimer Brezny said...

I think Posner is clearly provoking the Supreme Court. This decision is obviously wrong, just like Hein was.

Mortimer Brezny said...

A bill of attainder is when a legislature is a law that convicts someone of a crime without a trial.

1. That is an inaccurate definition. There need not be an actual conviction. Just a taking and a condemnation.
2. You have not read all the bill of attainder cases. I have.

Seven Machos said...

Mort -- Listen, man, we need to get the difference down between what you can do and what you should do.

Here is the Preamble to the Illinois Constitution, in pertinent part:

We, the People of the State of Illinois...in order to provide for the health, safety and welfare of the people; ; maintain a representative and orderly government; eliminate poverty and inequality; assure legal, social and economic justice; provide opportunity for the fullest development of the individual; insure domestic tranquility; provide for the common defense; and secure the blessings of freedom and liberty to ourselves
and our posterity


Now, Mort, that's just the first paragraph. You tell me how banning cheese or banning horse food farms doesn't fall well within all that language on numerous bases.

Taste matters. Opinion matters. Both are rational. "Rational" doesn't mean according to provable science.

Seven Machos said...

Mort -- Where is the taking here?

This law is facially neutral.

Mortimer Brezny said...

This law is facially neutral.

Again, the target need not be specifically named. There is only one company that engages in this activity. There is only one company that could have possibly been affected by the bill. It is a "You Can't Engage In Your Livelihood, Mr. Smith, Because You Disgust Us" bill. That is a bill of attainder.

Mortimer Brezny said...

"Rational" doesn't mean according to provable science.

You need to stop talking to me like I'm not a practicing lawyer.

I just cited to you Romer v. Evans, which clearly notes animus is not a rational-basis. Disgust is animus. In light of that precedent, your argument makes no sense.

Seven Machos said...

"A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial." William H. Rehnquist

1. How isn't every law a bill of attainder? Please address the hypos, just for starters. Again, how is zoning not attainder? Anti-trust?

2. Where is the punishment?

I think what you are missing here is the distinction between punishment for past action and prohibiting future action.

george grady said...

Seven Machos:

I live in Illinois. Here are some things that are illegal here because they offend people:

I'll comment individually:

1. Masturbating in public.

Masturbation in public is illegal. Not masturbation in general. I'll stipulate that I agree that the state of Illinois should be able to make it illegal to slaughter horses on, for instance, a park bench.

2. Playing music loudly on the CTA.

Once again, I'll stipulate that it's okay to make slaughtering horses on the CTA illegal.

3. Panhandling.

Are you allowed to sit on the stoop of your home with a sign saying "If you'll give me a dollar, I'll take it"? I thought so.

4. Serving liquor 24/7.

This, on the other hand, should not fall under state purview. The fact that the state gets away with it doesn't mean it should. Of course, even in Illinois, you can have a drink on your own property whenever you want.

5. Prostitution.

The state should have no say on this either.

6. Peeing in the street.

I hope that in Illinois you're allowed to pee somewhere.

7. Graffiti

But you can put a sign saying "Vote for Bob" on your own lawn, correct?

8. Not cleaning up your dog's poop.

So, if someone wants to just let their dog poop in their own back yard without cleaning it up, they'll get arrested?

9. Smoking in a restaurant.

Just as with the horses, the state has no legitimate claim to this power.

10. Serving foie gras.

Same as with 9.

Overall, I'd say you seem to have a great deal of difficulty distinguishing between public and private behavior.

It is completely rational to be offended by eating horses, and that's enough to have a law. Period.

Both halves of your conjunction are nonsense.

Your problem is that some people want the right to eat horse meat while others want the right to pass a law preventing horses from being eaten. Neither side is right. The only way to settle it in a free society is through the rough and tumble of the democratic process.

One side wants to infringe on others' rights. The other doesn't. I can tell which side is right. Why can't you?

Seven Machos said...

Come on, Mort. You are conflating mere commerce with prejudice against homosexuals. Somehow, I bet the justices will find a way to distinguish.

If not, look for cases where the plaintiff wants to beat off on his front lawn every Tuesday and why shouldn't he be able to do that?

Mortimer Brezny said...

How isn't every law a bill of attainder?

Rehnquist's personal statements do not describe the whole of the caselaw. A dead man's opinion, former Chief Justice or not, is not the law.

I think what you are missing here is the distinction between punishment for past action and prohibiting future action.

If someone takes all your property now, you don't have it in the future. The question is whether the confiscation in the first place was authorized.

I simply will not have you talk down to me. Posner's opinion is obviously wrong, and should be overturned by the Supreme Court, as a matter of law. It likely won't be, because it's just one company, and an unpopular one at that.

Let me just comment on a similar issue. I recall arguing with someone that the Utah Supreme Court bungled the law in holding Utah's polygamy law constitutional in the wake of Lawrence. They insisted they were right. The Utah Attorney General agrees with me, and the decision is question is essentially dead. Because it was wrong. Yes, authorities have the power to make mistakes. That doesn't mean they will be respected as authoritative when they are clearly erroneous, even if higher authorities refuse to correct them.

You are conflating mere commerce with prejudice against homosexuals.

I am nowhere near as stupid as suggested by your comment. Nor did I think Bowers was wrongly decided. But the idiocy of your comment has ended this discussion.

Seven Machos said...

George -- We've established that you are very libertarian when it comes to property rights. Great. I am, too.

But, dude, you are completely missing the boat when it comes to this argument, which is: is it constitutional?

I had a brilliant professor in law school. I once began to argue that some or another welfare program is unconstitutional. "Mr. Machos," he said to, almost pityingly, "please show me the part of the Constitution that shows that welfare is unconstitutional."

A brilliant man, and a brilliant point. People disagree with laws -- as you have here, George -- and so, ergo, they call the laws unconstitutional.

Bullshit. There's nothing unconstitutional about welfare payments and nothing unconstitutional about outlawing the production of horse meat.

What you are really arguing is that these laws are wrong. But that's all they are: wrong. There's nothing constitutional about it, and you are denigrating a pretty awesome document by throwing it around all willy-nilly.

Seven Machos said...

Mort -- How is this a taking? Can this property only be used for horse meat?

I highly, highly doubt that.

My guess is that this case never makes it to the Supremes.

Mortimer Brezny said...

There's nothing unconstitutional about welfare payments and nothing unconstitutional about outlawing the production of horse meat.

There is when you target one particular individual's livelihood and you do it because you find him disgusting.

Mortimer Brezny said...

My guess is that this case never makes it to the Supremes.

Agreed, but that isn't because you're right.

Seven Machos said...

One more thing, Mort, on tone. I think you are reading some invective into my posts that really isn't there.

Seven Machos said...

Can this property only be used for horse meat?

Mortimer Brezny said...

How is this a taking? Can this property only be used for horse meat?

The taking is of the targeted business itself. Not of the capital tied up in the business. Your standard is completely fictional. It does not exist in the bill of attainder cases.

Cedarford said...

Copy of Illinois law:

(225 ILCS 635/1.5 new)
Sec. 1.5. Slaughter for human consumption unlawful.
(a) Notwithstanding any other provision of law, it is
unlawful for any person to slaughter a horse if that person
knows or should know that any of the horse meat will be used
for human consumption.
(b) Notwithstanding any other provision of law, it is
unlawful for any person to possess, to import into or export
from this State, or to sell, buy, give away, hold, or accept
any horse meat if that person knows or should know that the
horse meat will be used for human consumption.
(c) Any person who knowingly violates any of the provisions
of this Section is guilty of a Class C misdemeanor.
(d) This Section shall not apply to:
(1) Any commonly accepted noncommercial, recreational,
or sporting activity.
(2) Any existing laws which relate to horse taxes or
zoning.

(3) The processing of food producing animals other than
those of the equine genus.

The law does continue a creeping annexation of property rights.

A person owns a horse. Has full property rights of that horse save for "abuse laws". Vet says the horse is lame and can't be salvaged. Then you can shoot it or pay the Vet to OD it or use one of those brain pithers they have.

Apparantly then the hide is your property, you can grind up the demised beastie's bones for bone meal - but not the 300 pounds or so of prime meat. Unless you feed that meat to dogs, cats, catfish, etc.

Sounds pretty stupid.

So you bury it or pay to take it to the rendering plant where the employees no doubt eat like kings on occasion.

Mortimer Brezny said...

I think you are reading some invective into my posts that really isn't there.

Then perhaps you should write your posts in a more civil and respectful manner.

Seven Machos said...

Or perhaps you should try reading them again, without all the Mort-imposed invective.

Mortimer Brezny said...

Or perhaps you should try reading them again, without all the Mort-imposed invective.

You're right. You're not a snarky, condescending asshole at all.

george grady said...

Seven Machos:

I'm not in Kindergarten. You don't need to keep saying the same things over and over. This also isn't "The Hunting of the Snark". Your saying something three times doesn't make it true.

Also, I believe that you've taken your "brilliant" law professor's point too much to heart. It is not the case that any state legislature can do anything they want that isn't explicitly prohibited.

Also, I am not arguing that this law should be stricken because it is wrong. I couldn't care less whether it is wrong or not, whatever that might mean. I am arguing that this law should be stricken because the legislature does not have the power to make this ban. I have asked before, from where does the state claim its power to make this ban? Do I have to ask three times to get an answer?

Mortimer Brezny said...

I couldn't care less whether it is wrong or not, whatever that might mean. I am arguing that this law should be stricken because the legislature does not have the power to make this ban.

By the way, that's what I meant by wrong: wrong as a matter of law. I think eating horse meat is weird.

Mortimer Brezny said...

I have asked before, from where does the state claim its power to make this ban?

Nowhere, which is why Posner's opinion is obviously wrong.

Seven Machos said...

George --

Cavel lost a lower court bid in July to delay enforcement of the Illinois law pending the outcome of the case. The appellate court ruling Friday dismissed the case entirely.

So, let's see. The clear implication is that the lower courts found for the government. Posner found for the government on appeal. If I am right, the Supreme Court will not take this case, which means that the Supremes implicitly agree.

Neither the U.S. Congress nor the president nor any of the executive agencies seem to be fighting the State.

Based on recent elections here, the People seem to support the law or, at least, they don't seem to think it's worth fighting.

To review: the legislature banned the practice. No higher authority has stopped them. How can you say with a straight face that Illinois doesn't have the power to do what Illinois did and that no one stopped Illinois from doing?

Mortimer Brezny said...

the Supreme Court will not take this case, which means that the Supremes implicitly agree.

No, it doesn't. Denial of cert does not have precedntial effect.

No higher authority has stopped them. How can you say with a straight face that Illinois doesn't have the power to do what Illinois did and that no one stopped Illinois from doing?

Police have the power to burst in your home and kill you for no reason. That doesn't make it constitutional. Many localities had the power to enforce segregation policies. That wasn't constitutional, either.

george grady said...

To review: the legislature banned the practice. No higher authority has stopped them. How can you say with a straight face that Illinois doesn't have the power to do what Illinois did and that no one stopped Illinois from doing?

Fine. I'll replace the word "power" with "legal right". I really don't want to argue semantics.

So, from where does the state claim its legal right to make this ban?

Mortimer Brezny said...

I really don't want to argue semantics.

That's all he has, George.

Seven Machos said...

More from the Illinois Constitution:

SECTION 2. POWERS OF GOVERNMENT
The enumeration in this Constitution of specified powers and functions shall not be construed as a limitation of powers of state government.


That broad language gives the State the authority to do whatever the hell it wants.

Mortimer Brezny said...

That broad language gives the State the authority to do whatever the hell it wants.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Seven Machos said...

Gentlemen: there are specific provisions in the federal and Illinois state Constitutions which prevent the government from bursting in your home for no reason. When someone kills you for no reason, it's murder, which is against state law here. I imagine there is federal law as well.

As I show above, the Illinois state Constitution reserves very broad latitude to its government when you add up Article II and the Preamble. It's really the reverse of the federal Constitution in that regard.

There is your legal right.

george grady said...

Seven Machos:

I'll see your:

SECTION 2. POWERS OF GOVERNMENT
The enumeration in this Constitution of specified powers and functions shall not be construed as a limitation of powers of state government.


and raise:

SECTION 24. RIGHTS RETAINED
The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the individual citizens of the State.


You, know, like the right to eat horse. Prove I'm wrong.

That broad language gives the State the authority to do whatever the hell it wants.

Look, if you don't want to be serious, just say so.

Seven Machos said...

Mortimer: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

There is nothing in the federal Constitution prohibiting a State government from making a law against horse meat.

Moreover, I think you are confusing the murky issues of states and the federal government relating to the Commerce Clause. Schechter Poultry, for example, was a case about a federal law.

Illinois can't tell the U.S. government what to do, or, say, Iowa what to do, but it certainly can decide how things are going to be in Illinois. If Cavel can convince a State to allow its practice, it can start up there and there's nothing Illinois can do except prevent the sale of the meat in Illinois.

Seven Machos said...

George -- I live in Illinois. Tonight, under your theory, I should be able to go out and rape several stray puppies, play music loudly from my window to wake the neighbors, send out Spam from my computer, and then jaywalk and and throw knives at oncoming traffic.

After all, those are rights retained by the individual citizens of the State because there is no mention of them in the Constitution.

george grady said...

Seven Machos:

I live in Illinois. Tonight, under your theory, I should be able to go out and rape several stray puppies, play music loudly from my window to wake the neighbors, send out Spam from my computer, and then jaywalk and and throw knives at oncoming traffic.

Okay, you win. You've convinced me that you're not serious. If you can't tell the difference between behavior that damages others and behavior that doesn't (as I already pointed out in a previous comment), I have nothing further to say. Good night.

Seven Machos said...

George -- Well, good night. When you wake up tomorrow, the Illinois law will still be constitutional and still be the law.

I must know, though, why can't I do all of those things I want to do? Raping stray puppies on my own property -- I thought at least you'd say I am entitled to that one.

Gustavus said...

This is pretty basic: the federal government has limited powers; state governments, by contrast, have plenary power, including police power. Police power encompasses the power to regulate health, safety, and morals. "Disgust" would fall under "morals." So when George demands to know where the state gets the legal right to make the slaughtering of horses for human consumption illegal, the answer is that the state is presumed to have the legal right to do so.

Now it is true that, after Lawrence, etc., state police power to regulate "morals" is pretty truncated, at least when it comes to things private and intimate. But I don't think that eating horseflesh is that private or intimate.

So far as I can tell, George and Mortimer are making fundamentally normative arguments ("the state ought not regulate this; indeed this ought to be outside the power of the state to regulate") in positivistic terms ("this IS unconstitutional"). Steven is arguing that it is constitutional, not that it ought to be the law or even that it ought to be within the state's lawful power to make it the law.

So, everyone, take a deep breath.

Seven Machos said...

The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the individual citizens of the State, unless somebody might get hurt, or it's some really crazy behavior, in which case obviously all bets are off but we didn't bother putting this italicized part in the Constitution.

Seven Machos said...

Thank you, Gustavus.

Ralph said...

Y'all are eating a dead horse.

Jason said...

If they outlaw horse meat, only outlaws will have horse meat!

Kirk said...

Mortimer,

"Is there anything in the Constitution that explicitly grants a city government that power"

Ha! You think the U.S. Constitution is about defining the powers of municipal governments? What a hoot!

And no, the mere fact that a product most comes from elsewhere doesn't trigger Commerce Clause preemption, as long as the state or locality isn't trying to discriminate between local and out-of-state producers (like e.g. NY was doing with mail-order wine sales.)

Trumpit said...

"Saying 'I disagree with the legislature' does not allow a judge to strike down a law."

To bad Posner wasn't on the Supreme Court when the Gore v. Bush decision was "rendered"; then the election would have been decided by the Floridians instead of rotten-to-the-core right-wing (in)justices.

Of course hunting must be outlawed; wild animals have a right to not be murdered for sport or for food. Hunters are barbarians in this day and age. That goes double for Cederford (You Bambi killer you!). I happen to believe in cannibalism. Okay, let's not kill grandma, but when she dies, why not make delicious steaks out of her!

Seven Machos said...

Trumpit -- I know you are trying to be funny, but you are confusing the legislature and the courts.

Courts, by their nature, are subject to review by higher courts when they make their decisions.

Trumpit said...

seven machos,

You may know more about the law than I do, but I know that the Supreme Court has the final say and it's decisions aren't subject to review except by itself, perhaps down the line somewhere. We must endeavor to be precise.

And I seldom try to be funny for funny sake around here. I try to make a point the best way I know how. Now you can laugh!

Mr. Forward said...

"Stop gabbin' and get me some oats!" Mr. Ed

AllenS said...

The banning of eating horsemeat goes back to biblical times:

Leveticus 11:3 Every creature that splits the hoof and forms a cleft in the hoofs and chews the cud among the beasts, that is what you may eat.

Horses have a solid hoof and do not chew a cud. Some of you people are going to do some time in Pergatory.

Seven Machos said...

Leviticus was overruled by Deuteronomy, the first Restatement in known history.

george grady said...

Seven Machos:

Well, good night. When you wake up tomorrow, the Illinois law will still be constitutional and still be the law.

I agree that it's still the law this morning. I disagree that it's constitutional. I just don't believe that the state having the power to do something is the same as it having the right. No, that one clause in the Illinois state constitution doesn't convince me otherwise.

I must know, though, why can't I do all of those things I want to do? Raping stray puppies on my own property -- I thought at least you'd say I am entitled to that one.

Look, I don't know why you seem to think that saying these sorts of things scores points. I thought that I'd already made my answer clear: You don't have the right to behavior that damages others, and I believe that although animals don't have the same rights as people, they at least can be protected from acts of wanton cruelty and torture. There, are you happy now?

I'll give you a question now: Do you think that the state of Illinois has the right to round up all the homeless people in Chicago, put them on buses, and drop them off in Milwaukee? Why not? I'm sure the existence of homeless people on the streets of Chicago disgusts some people, and I don't see any explicit right to live on the street and not be put on a bus to Milwaukee. This surely must fall under the state's authority to "do whatever the hell it wants", as you so delicately put it.

Seven Machos said...

George -- You are foisting your own very limited and narrow view of property rights onto the Illinois and federal constitutions. American jurisprudence just doesn't come close to offering support your position.

You can argue that it's a bad law, and I am sympathetic. But you cannot argue that it is unconstitutional.

Gustavus said it better than I ever did:

The federal government has limited powers; state governments, by contrast, have plenary power, including police power. Police power encompasses the power to regulate health, safety, and morals. "Disgust" would fall under "morals." So when George demands to know where the state gets the legal right to make the slaughtering of horses for human consumption illegal, the answer is that the state is presumed to have the legal right to do so.

As to your hypothetical, you are failing to observe the obvious distinction between personal rights and property rights. The fact is, when the Commerce Clause -- that is, mere economic rights -- is at issue, governments almost always get what they want (unless interstate trade is at issue). But the biggest problem with your hypothetical is that the city of Milwaukee wouldn't stand for the action.

Seven Machos said...

And one more thing, why can we protect animals from torture but not from being eaten? That's a bit of fine line and I suspect that if you think about it, your theory of property doesn't really support it. You are merely foisting your own tastes and morals as rights.

Roger said...

I love it when lawyers argue! Now I know why we need courts.

george grady said...

Seven Machos:

You are foisting your own very limited and narrow view of property rights onto the Illinois and federal constitutions. American jurisprudence just doesn't come close to offering support your position.

No, I'm foisting my own broad view of property rights onto the Illinois and federal constitutions. You're foisting your own very narrow view onto them.

You can argue that it's a bad law, and I am sympathetic. But you cannot argue that it is unconstitutional.

Again, I don't care whether it's a good or bad law. It's irrelevant to me. The state of Illinois is usurping the rights of its citizens, whether you or it want to admit it or not.

As to your hypothetical, you are failing to observe the obvious distinction between personal rights and property rights.

Property rights are personal rights. Amongst the most important of them. We, as American citizens, have the right not to be deprived of our property without the due process of law. And that right is precisely what this law is violating.

The fact is, when the Commerce Clause -- that is, mere economic rights -- is at issue, governments almost always get what they want (unless interstate trade is at issue).

Nice smear at economic rights. "Mere" indeed. The fact that the commerce clause is stretched beyond breaking doesn't make it correct. And the government does not have the right to always get what it wants.

But the biggest problem with your hypothetical is that the city of Milwaukee wouldn't stand for the action.

Oh, yeah, I forgot that for you, the city of Milwaukee has the right to control who can get off of buses there.

george grady said...

Seven Machos:

You are merely foisting your own tastes and morals as rights.

No, I am explicitly not doing that. I am, in fact, saying that nobody gets to foist their tastes and morals on others. That is what this law, which I am objecting to, is doing.

Seven Machos said...

George -- But there is nothing in the Constitution that addresses any of these points. You are making philosophical political arguments about what the Constitution ought to be.

Seven Machos said...

The state making legislation violates due process?

Good one.

george grady said...

Seven Machos:

But there is nothing in the Constitution that addresses any of these points. You are making philosophical political arguments about what the Constitution ought to be.

And you're doing precisely what? Backing up your points with cold, cold logic, modus ponens-ing away?

The state making legislation violates due process?

Good one.


*sigh* Fine. I suppose that the legislature can pass a law saying that nobody is allowed to write with pencils. Sure, they can keep their pencils, but all writing must be down with pens. And if enough people were disgusted enough with pencils (damn leads are always breaking!) to get this passed, that would be just fine. There would be no deprivation of property issues here at all.

Note that this is parallel. People can still have their horses. They just can't use them for one particular use they might want (slaughter for food), because some people are, oh, so disgusted. With this, people can have their pencils. They can use them as paperweights and twirl them like mini-batons. They just can't write with them.

And you just keep saying that there's no problem with this. Government can tell you what you can or cannot do with your property because your neighbor gets a little bile in his throat thinking about it. And there's no deprivation here. Uh-huh.

I'll just flatly say it. You're wrong. Even if others say you're right, you're wrong. Even if the Supreme Court itself were to say you're right, you're wrong. Just because the government claims a power -- and nobody who can stop them does stop them -- does not mean the government has the right.

Trooper York said...

Maybe now you could never conceive,
That there'd ever be a food that would go with everything,
I know that you would never believe,
That there'd ever be a food, that could taste like anything...

But just open your mind, and take a bite,
Then you might find, out that you like...

Tofu, so good for me,
Tofu, so good to eat,
Tofu, better than meat,
Everything I eat goes better with Tofu.

No other food has quite the consistency of Tofu, so good for you,
Tofu, does a body good,
Tofu, America's health kick.

No other food has quite the versatility of tofu, No, No, No,
I've just got to face the facts, I'm hopelessly addicted to tofu.

I buy tofu, at the coop, the health food coop
Every night I think of something new, that I can do, with tofu.

Stir fry, marinate, tofu yong or eat it straight.

Tofu fills me up with protein, higher than the RDA, hey, hey, hey.
Tofu fills me up with acetylcholine, deep inside of my blood stream.
And it's just like a dream, when I eat tofu, everynight.
I don't know if it's real food; but I know that I like, every bite of...
Tofu, so good for me,
Tofu, so good for you,
Tofu, real food for real people.

Some day, tofu, the food that you abhor,
Will be the only food you're craving for.
Some day, you're gonna be, cooking with me, tofu, tofu, tofu.
You're gonna be, eating with me, tofu, tofu, tofu.
Come on by anytime, cuz I wanna have some tofu with you baby.

(Greg Spence Wolf, Michael Aquaila Horrigan, Bert Gildersleve and Michael Cook 1999)

Trooper York said...

Now that shit should definitely
be outlawed.

Mortimer Brezny said...

So far as I can tell, George and Mortimer are making fundamentally normative arguments

No. I am making a constitutional argument based on the Bill of Attainder clause of the Constitution and the caselaw that evolved under that clause. I am also claiming that Romer and Lawrence are directly applicable precedent, because they state unequivocally that disgust/animus is not a rational-basis for state legislation. My invocation of Lochner and Schechter Poultry go directly to whether police power extends to discriminatory paternalism, at any level of government (they are more general arguments, but still legal). So, no, my arguments are not normative, except at the level that "one should not violate the Constitution or write a judicial opinion that ignores precedent that directly applies".

Mortimer Brezny said...

The fact is, when the Commerce Clause

Notice I have not made Commerce Clause arguments here.

Mortimer Brezny said...

Anyway, here's the fool who made this into a Commerce Clause case:

http://www.ssd.com/lawyers/lawyer_detail.aspx?lawyerid=18981

Mortimer Brezny said...

You think the U.S. Constitution is about defining the powers of municipal governments?

No. But I do think the Supremacy Clause beats a city ordinance.

Mortimer Brezny said...

as long as the state or locality isn't trying to discriminate between local and out-of-state producers

There is only one producer here.

Mortimer Brezny said...

I think you are confusing the murky issues of states and the federal government relating to the Commerce Clause.

I am not making a Commerce Clause argument.

Meade said...

george grady said...

8. Not cleaning up your dog's poop.

So, if someone wants to just let their dog poop in their own back yard without cleaning it up, they'll get arrested?


If not, I suggest moving to a state where the People are willing to reasonably legislate against allowing such a disgusting practice. I don't know about Illinois, but here in the civilized state of Ohio, we have laws prohibiting backyard "dog poop" negligence.

A majority of Ohioans know that dog feces carries worms and microorganisms that cause serious illnesses to humans. The waste can seep into and contaminate community water supplies.

On top of that, a majority of Ohioans find it flat out disgusting. So we made a law that essentially says this: Even in your own back yard where you are free to discretely practice sodomy, masturbation, and wife-swapping, don't be disgusting in this particular way or else the health department has the power to step in and make you clean up your... dog's... act.

I suppose if enough people from less civilized states were to move here, or if new studies prove conclusively that lo and behold dog feces is not harmful at all and in fact, like tofu, it acts as a powerful antioxidant, the People of Ohio could change the law.

But, and I say this as someone who has absolutely no license to practice law in any state, I doubt it.

Trooper York said...

Meade.... tofu doesn't act like dog poop...it tastes like dog poop!

Mortimer Brezny said...

don't be disgusting in this particular way or else the health department has the power

Pure disgust is not the same as disgust at a practice that is actually unhealthy. No one is arguing that public health is an inavlid basis for making legislation; the point is that in this case public health is not conceivably the basis for this legislation.

Seven Machos said...

George -- You are still confusing what you think is philosophically right with what the Constitution says. The wording and the understanding of the Constitution today simply don't back up your arguments.

Your best bet, since you hate this law so much, is to work through the democratic system to get it changed. That's the beauty of constitutional self-governance. There are some things we can't change. But most things we can.

And, finally, if there's one thing people who believe in laissez faire government and strong property rights ought to have learned in the last 200 years, it's that the courts are not the place to fight these battles.

george grady said...

Seven Machos:

You are still confusing what you think is philosophically right with what the Constitution says. The wording and the understanding of the Constitution today simply don't back up your arguments.

I'm not confusing anything. The wording of the constitution certainly does back up my argument. Whether the "understanding" "today" does doesn't concern me.

Your best bet, since you hate this law so much, is to work through the democratic system to get it changed. That's the beauty of constitutional self-governance. There are some things we can't change. But most things we can.

See, now you're misunderstanding me. I don't really care about this particular law one way or the other. It's the reasoning displayed -- that someone's disgust at something is sufficient reason to be able to infringe on others' rights -- that I object to.

And, finally, if there's one thing people who believe in laissez faire government and strong property rights ought to have learned in the last 200 years, it's that the courts are not the place to fight these battles.

Are you advocating armed rebellion? I'm not. And I'm well aware that the courts are definitely not the place to expect people's rights to be upheld. That, once again, doesn't make it right.

Seven Machos said...

George -- Come on. The clear meaning of my post is that the legislature is the place to fight these battles.

Tell me again the exact language of the Constitution you are using to back up your case. Also, please cite a case as precedent.

george grady said...

The clear meaning of my post is that the legislature is the place to fight these battles.

Tell that to Miranda, Roe, and Brown.

Tell me again the exact language of the Constitution you are using to back up your case.

I've already stated that this law violates property rights and is tantamount to a deprivation of property. And in any case, it should not be incumbent upon the people to indicate exactly where their rights are written down. The burden of proof is on the government to show from precisely where their alleged power derives.
No, Illinois's constitution's catch-all "the government can do whatever it damn-well pleases" clause isn't good enough.

Also, please cite a case as precedent.

Uh, no. I'm not a lawyer, and this isn't a court of law. I don't care about precedents. I care about rights.

In any case, people have been eating horses for millennia. If you can give me one reason, just one, why the government has any legitimate interest or power in stopping the practice, let me know. No, "we feel like it" doesn't count.

Seven Machos said...

George, if you want talk in terms of what is constitutional, you have to be prepared to point to specific language in the Constitution.

You have not.

I have. I showed you where Illinois arrogated to itself powers that aren't specifically written down in the Constitution.

There is no taking of property here. This is tantamount to zoning. This company can use this property for whatever it wants, except for horse meat production. It also cannot use the property as a whorehouse, or a crack house, or -- very probably, without special permission -- a morgue.

You are arguing what the law should be. Fine. But don't pretend that the any Constitution says something that it doesn't say just because you want things to be that way. That path leads to Roe v. Wade and all manner of horrific conclusions.

george grady said...

George, if you want talk in terms of what is constitutional, you have to be prepared to point to specific language in the Constitution.

You have not.


Again, why is the burden of proof on the people to maintain their rights? The burden of proof should be on the state.

I have. I showed you where Illinois arrogated to itself powers that aren't specifically written down in the Constitution.

"Arrogated" is the right word here, that's for sure. And I've already stated that Illinois's "we can do anything we want" clause doesn't fly.

There is no taking of property here. This is tantamount to zoning. This company can use this property for whatever it wants, except for horse meat production. It also cannot use the property as a whorehouse, or a crack house, or -- very probably, without special permission -- a morgue.

This is not zoning. Zoning is "you can have your slaughterhouse in this area, but not in that area". This is "you can't have this slaughterhouse anywhere". Big difference.

You are arguing what the law should be. Fine. But don't pretend that the any Constitution says something that it doesn't say just because you want things to be that way. That path leads to Roe v. Wade and all manner of horrific conclusions.

No, I'm not. I'm not the one pretending the state has powers it doesn't legitimately have.

Ann Althouse said...

"I just think that this opinion is stupid, no matter how erudite you consider it to be. Also, if quoting a philosopher is erudite, then it should make room for the other 50,000 judicial opinions now considered to be so."

That gets the Tin Ear Award. I wrote: "John Stuart Mill... a photograph of a lion eating a birthday cake made out of horse meat... I love these erudite opinions!"

Seven Machos said...

George -- What is your view of laws against whorehouses and crack houses all over the state, against polygamy, against cannibalism (even if it's agreed to), against drug use, or against sex between a consenting 30-year-old and a consenting 16-year-old?

All of these laws have been deemed constitutional.

You seemed to have moved your argument from constitutional to legitimacy. That's for the best. You have been in the land of philosophy this entire time, and that's all I was ever trying to say. There's nothing in the Constitution that prohibits this law, even though you don't think the law is right.