A topic I have been meaning to address for some time has been animal cruelty, particularly its criminalization at the federal level. Few topics conjure up emotion and cause conservatives to abandon all pretenses of supporting limited government as this one.
In November 2019, President Trump signed into law the Preventing Animal Cruelty and Torture Act, hailed as a bipartisan effort to make such acts punishable by fines and up to seven years in prison. This law broadens legislation signed in 2010 by then-President Obama banning “snuff” videos, which depict numerous acts of extreme cruelty on animals, some to fulfill sexual fetishes. The new law bans the acts themselves. Animal cruelty is awful, we all know that; but does it justify abandoning our founding principles for the sake of emotion? The act is already punishable as a felony in every state. What does the Constitution say about this matter?
The Constitution as ratified allows the general government the power to punish three crimes: counterfeiting (Art. I, sec. 8, clause 6); Piracies and Felonies on the high Seas (Art. I, sec. 8, clause 10); and Treason (Art. III, section 3). James Madison stated the following in Federalist 45:
“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.”
Because punishing such behavior was never a delegated power, the Tenth Amendment comes into effect, which states:
“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.”
The law of the land could not be more clear on the matter, yet, the bill was passed with almost zero opposition in both the House and the Senate. President Trump hailed the bill as “very important” and declared he was honored to be a part of it. “Very important;” however, does not mean the Act passes Constitutional muster.
According to Kitty Block, president of the Humane Society of the United States, the Act “makes a statement about American values.” Ms. Block ignores the fact that felony laws proscribing this behavior already speak loudly and clearly about how Americans feel about animal cruelty. Ms. Block is doing nothing more than advocating government overreach in contravention to principles of federalism, the system to which the States consented when they ratified the Constitution, setting up a federal, as opposed to a national government.
In a time when conservatives say they want limited government, we see them cheering on an egregious overreach because the subject matter, one rightly held as repugnant, is the issue. They forget, however, that these acts are already criminal offenses in all 50 states. So you have to ask, why is this added level of criminal prohibition even necessary?
There are two answers to this question: money and power. Both result in the expansion of the federal government's power to punish and incarcerate people, to the detriment of liberty once held so dear. The new Act will justify funds to help prosecute animal cruelty cases that cross state lines, regardless of the fact that the states already have the exclusive power to deal with these situations. “Resources,” meaning money, will be allocated to punishing the cases. When there is a question as to the necessity of government overreach, always follow the money.
In certain matters, the Justice Department prosecutes cases at the federal level in violation of the Double Jeopardy Clause; this practice has been deemed acceptable under the “separate sovereigns” theory. In law school, aspiring lawyers are taught that the federal government is a “separate sovereign” and the clause is inapplicable in such instances.
Chris Calton discusses the issue of separate sovereigns as it applied to Operation Triggerlock. He explains that federal prosecutors scan through state criminal cases in an attempt to “boost federal arrest and prosecution rates.” The Justice Department simply duplicates cases already won in State courts, and avoids the need to build their own cases from scratch. They get the benefit, without the onerous burden of doing the actual investigative work. Calton describes this as a “bastardization of dual sovereignty.” The real system of dual sovereignty was intended to keep the delegated powers of the general government limited to areas where uniformity was needed, such as naturalization and bankruptcy. Again, see Madison's Federalist 45 and apply the internal order of the states requirement to the present facts.
Social issues and criminal laws were intended to be handled by the States, where the people would be best represented by their elected officials, who would have a better understanding for the particular needs of their communities.
The bill (for now) does not apply to people who slaughter animals for food or to those who hunt, trap and fish. I am very concerned with the words of Ms. Block of the HSUS: “The approval of this measure by the congress and the president marks a new era in the codification of kindness to animals in federal law.” (Emphasis added.) Who's to say “kindness” won't eventually call for bans of trapping or hunting? While the term may not be a part of the record of legislative intent, it is foreseeable that it will be used to persuade a congressional body less friendly to these activities, based on the premise that they, while necessary, can't be considered “kind,” even if done ethically.
Animal cruelty laws in states have shown the inescapable progress of mission creep to justify further regulations and restrictions regarding the care and keeping of our animals, to the point failures to live up to the standards of politicians result in criminal prosecution. Across the land, we have instances of legislation intended to limit the time dogs spend outdoors, how their kennels must be built, how many animals a person or family can own, etc. Abuse has expanded to includes “neglect,” so expect government intrusion if a neighbor or passer by thinks your elderly equine is “too skinny.” Milton Friedman said, “One of the great mistakes is to judge policies and programs by their intentions rather than their results.”
Will animal husbandry on our homesteads and back yards eventually render us susceptible to the scrutiny of federal overlords? If that premise seems preposterous, consider what happened to the clear and concise phrase, “shall not be infringed.”