[music]

Melissa Harris-Perry: Welcome to The Takeaway I'm Melissa Harris-Perry. We have a lot to bring you this morning, but we start in St. Louis, Missouri. Where on Monday a 19-year-old, recent graduate of Central Visual and Performing Arts High School entered the school with a long gun and several magazines of ammunition. He shot and killed a teenage student as well as Jean Kuczka, a 61-year-old health teacher who put herself between the gunmen and her students. Seven others were injured. The trauma, fear, and devastation are audible in the voices of young people who escaped. Like this student who spoke with the St. Louis Post Dispatch.

Student: I was trying to run and I couldn't run. Me and him made eye contact and I'm glad I made it out because his gun got jammed. We saw blood on the floor. I think somebody got shot.

[music]

Melissa Harris-Perry: Police shot and killed the gunman. For some, the rash of school shootings in recent years is evidence of an increase in crime, for others, it's an indication of the deadly consequences of allowing lax gun policy that allows many firearms to flood homes and communities, but for all of us, it is a profoundly painful reminder of just how much is at stake in this year's elections. Indeed, the final day to cast your vote in the 2022 midterms is just two weeks away. In some of the most watched races across the country, candidates are finally squaring off in debate.

Last night, Florida's former governor the now-Democrat Charlie Crist, took the stage against incumbent governor Republican Ron DeSantis. Polls show that Crist has trailed DeSantis throughout the campaign. Now, Crist criticized DeSantis for failing to respond adequately to hurricane disaster and to the disaster of the pandemic. DeSantis proudly defended his support of a strict 15-week abortion ban while repeating false and misleading information about early pregnancy. The moment that most characterize their meeting happened early on in a sharp personal exchange that was loudly cheered and booed from the crowd.

Ron DeSantis: The only worn-out old donkey I'm looking to put out the pasture is Charlie Crist.

Charlie Crist: We know you love to bully people and the little name-calling you just exchanged, I can take it but you shouldn't do it when children are standing behind you at a press conference and they're wearing a mask. It shouldn't happen.

Melissa Harris-Perry: Now maybe all that reaction is evidence that Americans are really getting into our democracy, or maybe it means that democracy is in a bit of trouble. Some of the biggest questions about how our democracy is actually going to work. Well, that feature may not be decided by elected officials at all, but by the nine lifetime members of the Supreme Court. Earlier this month, the court returned to session.

[music]

Ketanji Brown Jackson: How does the principle that you articulate relate to the concerns of the dormant commerce clause?

Melissa Harris-Perry: That's Justice Ketanji Brown Jackson during oral arguments for the National Pork Producers Council v. Ross. It's a case with high stakes about state's rights, interstate commerce, and the lives of pigs. Now, back in 2018, California voters passed Proposition 12. The measure states that pork can only be sold in California if it's produced from pigs whose mothers have 24 square feet of usable floor space.

That's because across the country on big pig farms, female pigs typically spend their entire lives in metal gestation crates where they may not even be able to turn around for their entire lives. California is not a large pork-producing state. It imports 99% of its pork meat. That's where the case gets really interesting because that means that this California state law has effects that reach far beyond the golden state.

Kathy Hessler: So they made it a requirement that anyone who wants to sell the products coming from animals raised from food, eggs, pork, has to also follow those same regulations, even if the animals are being raised outside of the state of California. I am Kathy Hessler, the assistant dean for Animal Legal Education at the George Washington University Law School.

Melissa Harris-Perry: The pork industry says it's simply too expensive to comply with these regulations and that the Constitution does not empower California to effectively set regulations for all other states, so the pork industry has taken California to court.

Kathy Hessler: There are questions about what is called the Dormant Commerce Clause. That is Congress's ability to say, even when Congress itself has not enacted regulation, which is the situation here, Congress could have obviated the entire conversation here if it decided to regulate regarding the welfare of animals being raised for food. It has chosen not to. There is no federal regulation protecting farmed animals in any respect to their welfare while they're being raised for food. Some states have said, okay, well, we want to address the welfare of animals. That's the situation that currently occurs.

However, Congress can also say, under a theory called the Dormant Commerce Clause, the Supreme Court can investigate whether Congress is wanting to keep that power for itself and whether it can still constrain a state's ability to make its own regulations if those regulations have an excessive impact on interstate commerce. That's the question that we have before us.

Melissa Harris-Perry: What other existing laws could be vulnerable if Prop 12 is turned back?

Kathy Hessler: We have a basic understanding that states have the capacity to regulate under their police powers when it comes to the welfare, the morals, the health and safety of their citizens. If the Supreme Court decides California can't regulate because its citizens have made a moral judgment that they don't want to be complicit in harmful practices to these animals, or if the Supreme Court members decide that California can't uphold Prop 12 because the health and safety concerns aren't sufficiently valid to overcome the impact on interstate commerce.

That opens the door to questioning all kinds of state regulations that exist in the area of health and safety, of morals, or general welfare. You can just imagine a litany of potential concerns that states would have about their authority regulating going forward and also what would be sustained in their current regulations. That raises exactly the opposite kind of result that the Commerce Clause was designed to settle.

That is having some uniformity and some clarity so that businesses and citizens can conduct themselves with an understanding of what the lay of the land is, if you will.

If this unsettles the Dormant Commerce Clause cases and it unsettles even state's rights cases, trying to figure out where the line is that separates the authority of the states to regulate on behalf of its citizens could become a much more open question than it has been.

Melissa Harris-Perry: Oral arguments have been heard. Would be very careful about peering into the tea leaves or the crystal ball when it comes to the court, but I'm wondering maybe what you or others believe we've learned at this point from the ways that the justices are questioning and how they've weighed in thus far?

Kathy Hessler: There are a couple of things to note. One is that the case was taken up before a full hearing on the merits. What I mean by that is that there wasn't a trial with full fact-finding below. That's unusual because it signals that the court wanted to take up this case and decided not to wait for that to happen because the lower court said it didn't need to happen, that the law was perfectly fine. It indicates that the court wants to say something in this area and what it wants to say is obviously not clear. It could be around the Dormant Commerce Clause, it could be around state regulation, it could be this particular issue, and nothing more.

The court has the ability to remand the case back for further investigation to go to a trial and further fact-finding, that might be something that they're considering based on the questions. Some of the questions also indicated that they might not be hostile to a narrower type of regulation labeling, for instance, of the goods that come in to say that they were the products of perhaps inhumane conditions. I think the court is looking for ways to move forward but is not clear whether some members want to make a very decisive statement about this area of the law in general.

Melissa Harris-Perry: I have to say, it does make me wonder if any of this is also related to Dobbs. This is being presented as a conversation about morality, about ethics, about the rights of states to make choices about the morality and ethics of their consumers and their citizens within their state. While nonetheless, we're all presumably living in these still United States, is there any reason to think that what happens, in this case, has anything to do with the current reality that abortion and reproductive rights are state matters by law?

Kathy Hessler: It would seem important that the Supreme Court maintains some consistency in its approach to the question of state's rights. On the one hand, if in Dobbs, the court has said it's important that states have the right to choose for themselves how to address this really difficult and important question, and to do something different in the Prop 12 case would be problematic one `might assume and so it will be interesting to see what the court does.

I think that the folks involved in the Dobbs case will want to be paying close attention because it may give them some additional legal questions or advocacy opportunities.

if the court in the Prop 12 case says, actually, here's how we're going to constrain state's rights in certain respects. Interestingly, there are a number of substantive parallels in these cases as well. The health and safety concern, the morals concern exist in both of these contexts.

Do citizens have the right to say for themselves in a state, we want to decide what we think is the appropriate moral response to the question of abortion or the question of humane treatment of animals. We want to decide what the health and safety concerns are and how those issues should be regulated by the state in the context of abortion, in the context of consumers ingesting food that they might think is not humanly raised and also leading to some health consequences from the conditions of that confinement.

There are fundamental questions that exist in both of these cases and yet we see potentially, again, trying not to [unintelligible 00:11:41] so the court potentially going into opposite different directions and that's going to raise a lot of legal questions for us going forward. If the court says in the prop 12 case California has the right to do this then there will be some more symmetry between the jobs, legal jurisprudence and what comes out with the Prop 12 case. It will be interesting to see then if that allows citizens more autonomy to decide for themselves through their state legislatures or through the ballot intermission process, how they want to be regulated in terms of these important questions.

Melissa Harris-Perry: Kathy Hessler is Assistant Dean for Animal Legal Education at George Washington University Law School. Thank you so much for taking the time with us today.

Kathy Hessler: My pleasure, thanks so much.

Melissa Harris-Perry: Everyone stay right there because when we come back, we're turning to the animal ethics involved in this story and asking what we owe to the animals we eat. It's The Takeaway. Welcome back to The Takeaway, I'm Melissa Harris-Perry, and we've been discussing the constitutional issues at the heart of the Supreme Court battle over California's Proposition 12, but now we turn to the lives of the pigs themselves. Joining me is Tyler Doggett, he's professor of philosophy at the University of Vermont. Tyler, thanks for joining us today.

Tyler Doggett: Thanks so much for having me, Melissa.

Melissa Harris-Perry: All right. I just want to begin not with a vegetarianism conversation although I respect and understand why that is one critical route. I want to just begin on the side of those who do in fact consume meat and in this case, consume pork, and ask about how we should even begin thinking about our responsibilities towards the animals that we raise for the purpose of consuming them as food.

Tyler Doggett: This is such an important but also difficult issue. I think one thing to think about is we spend a lot of time as people who engage with all sorts of animals. For example, I grew up as a dog person. I married into a cat family. We have rabbits now and all these animals are intelligent creatures whose lives can go well and can go badly. I think for most people who spend time with pets, it would be unthinkable to mistreat them by confiding them to very small spaces, inflicting pain on them just so that we could get a benefit out of them.

Yet when we think about the animals that we eat, it's not uncommon for us to confine them to very small spaces, to give them very short lives and to inflict pain and suffering on them just so the price of their flesh can go down. There does seem like there's a little bit of a disconnect between our thinking about cats or dogs or other sorts of pets and our thinking about other curious, intelligent creatures like pigs that we eat.

Melissa Harris-Perry: It's interesting to hear you say that it in part has to do with the way that we spend time with them, in part because these are pork producers for example, who've brought the Supreme Court case against Proposition 12 and part of their argument is we spend a lot of time with these pigs. The core of their argument is a fiscal one. I think part of what they'd also claim is you people don't spend time with these pigs. You eat the bacon, you eat the ham. We're the ones who on a daily basis are with these animals. I don't think they would understand themselves to be cruel.

Tyler Doggett: I think that's an important point. I want to acknowledgeable there is something very offensive about people who spend no time on farms making demands about how farm life goes. There's no doubt that there is something off about that. That said, it could be that the demands that the state of California is making are reasonable demands. The state of California is asking for a certain amount of space for pigs, and particular for mommy pigs. It could be that there are very powerful reasons in favor of doing that. The people who are making these demands even if it is annoying to pig producers to hear them from people who spend no time on farms, they might be right.

Melissa Harris-Perry: I have dogs, cats, chickens, dogs, and pigs. It certainly is true that pigs are quite smart, quite lovely. That said, pigs are also prey creatures. Humans are not the only things that eat a pig in nature. Given that animals higher up a food chain, eat animals lower down a food chain, I guess I'm wondering if there is a way that we as human animals should we have to chase the pigs?

To be clear, when I say "should", I really mean are there terms under which we can understand an ethical life prior to death for the purpose of consumption? I get the 24 square feet. That seems minimal but are there other aspects? Should an animal have an opportunity for joy, for companionship? What are some of the ways that we can even begin thinking about the ethics of this?

Tyler Doggett: When we think about factory farming, the type of farming that produces almost all of the food that you and I and everyone else eat, one set of issues is not about animals at all. It's about people and the effects factory farms have on people. It's about the environment, the effects factory farms have in the environment. Then there're also issues about animals. I think it's worth separating two types of issues about animals.

One is factory farming gives animals very short lives. One issue that you're bringing up is there something wrong with animal death? After all, the animals that we eat are all prey animals and in nature, they would be living quite possibly nasty British and short lives. That's an important issue, is there anything wrong with killing animals for food? There's another issue that I think is at the heart of this particular debate about Proposition 12, which is nevermind animal death.

What do we make of animal suffering? What do we make of the requirement to provide animals with a minimally decent life? I think as someone who has pets, Melissa, you can understand that it's important to give your pets a good life. That doesn't mean that you have to keep them alive forever. It could be that they can have a short life, but it's important that they have a good life.

One of the key issues in the Proposition 12 thing isn't about death at all. It's not about whether we can kill animals for food. It's just about whether we should give pigs minimally decent lives. I think that's the thing that's worth focusing on and that's the thing that our connection with pets really brings out is that when we have these animals in our lives, we want to do right by them. We want their day-to-day lives to go well.

Melissa Harris-Perry: Tyler Doggett is a professor of philosophy at the University of Vermont. Tyler, I really appreciate your thoughtfulness and your time today.

Tyler Doggett: Thanks so much for having me, Melissa, and for talking about this.

Copyright © 2024 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.