Proposed Amendment to South Korea’s Constitution Refers to Animal Protection

Does the Nation Join a Historic March Toward Animal Rights?

by John Otrompke

On or about the first day of spring this year, the president of South Korea announced a proposed amendment to the country’s constitution. The lengthy proposal (a copy of the Korean text of which is on file with this author) addresses a variety of topics including presidential term limits, as well as animal protection.

If the amendment passes, Korea will join other countries such as Ecuador, Germany, India, and Switzerland whose constitutions specifically mention animal welfare. While the language in the South Korean proposal relating to animals is brief in relation to the entire text, it could have significant impact on efforts to improve the well-being of animals in Korea.

“The proposed amendment bill includes, for the first time in constitutional history, the nation’s responsibility for animal protection. Article 38 (3) stipulates that ‘the nation must implement a policy for the protection of animals,’” said Jooyeon Park, LLM, attorney and co-president of People for Nonhuman Rights.

But how useful will this proposed language be in addressing specific animal problems in Korea, such as the dog meat trade? Possibly very useful, experts say.

“It will make it possible to file a constitutional complaint against the government’s neglect to establish a policy and laws for fundamental and better animal welfare- for example, the insufficient law articles for wildlife protection. It is expected to be a stepping stone for securing the special status and rights of animals, as it recognizes ‘animal protection’ as a constitutional value,” explained Park, who is currently litigating an animal rights case involving dog slaughter in South Korea (see below).

A Growing Chorus of Opposition Among Enlightened Constitutions

“Animal welfare is an important part of our constitution in Austria, Germany and Switzerland. The constitutional provisions don’t provide a private citizen with the means of bringing a case, but at least he could cooperate with law enforcement bodies,” said Antoine Goetschel, JD, founder and president of the Global Animal Law Association in Zurich.

In Germany, the effect of such a constitutional provision is simple, explained Goetschel, who has drafted a UN convention on animal health and protection. “It just foresees since 2002 that the animals in the short term ought to be protected by the state. It sounds boring, but in those countries when animals are protected by the Constitution, for example, artists are not allowed to abuse animals to produce their artwork. It gives a balance to the animal, and the judge has to balance that out.”

By incorporating the concept of dignity into its constitution, however, Switzerland is quite unique. “The idea is to acknowledge an inherent or intrinsic value of animals, who are not to be reduced just to a machine, or instrumentalized,” added Goetschel, formerly the  prosecutor and chief animal welfare attorney for the canton of Zurich.
“Based on the Constitution, we have animal welfare legislation in Switzerland, and based on the legislation, we have an animal welfare ordinance which is quite large.” As an example, he said, the boiling of lobster is illegal in Switzerland.

“Constitutional provisions in Ecuador, Germany and Switzerland recognize animals as sentient beings and gives them a legal status that is more than mere property, but not fully human; a third legal status. This new constitutional amendment doesn’t state specific animal rights, but it is a big step,” added Minhee Janet Yoo, policy team manager for Coexistence of Animal Rights on Earth (CARE) in Seoul.

Growing Concern for Animals in South Korea

Under South Korean law, within 60 days of the proposal to amend the constitution, the National Assembly must vote on it, according to Park. If two-thirds of the National Assembly approve the bill, a referendum must be held within 30 days. But even if the constitution is amended, a separate law enactment is necessary for the distribution of dog meat to be prohibited, she said.

“The dog meat trade is not banned by the proposed new constitutional amendment, but it could make it possible to regulate inhumane industries in South Korea such as the dog meat trade,” noted Yoo of CARE.

Concern about dog meat, for example, has been growing among humanitarians around the world. (It is sometimes said that In the dog meat trade, dogs are sometimes slaughtered by hanging them by the neck until dead, because of a superstitious belief that the meat tastes better).

“Fortunately, there are less people who think that dog meat is Korean culture these days,” said the attorney, Park. “Recently, as the Korean population with companion animals highly increased up to over 10 million, it is seen that the awareness and movement for animal rights is on its rise; more than half a million people signed a petition put forward by the Humane Society and Korea Animal Rights Advocates (KARA) this year.

“Currently the dog meat trade is neither legal nor illegal under the law,” added Park. “The Livestock Products Sanitary Control Act, which regulates animal slaughter and distribution for edible purposes, excludes ‘dogs’ from the livestock subject to slaughter, so slaughtering dogs for food is not covered by the Act.”

Progress in Korea as Measured by Other Laws

However, another law, the Animal Protection Act, was also amended in March.
“The keeping, transportation, and slaughtering of dogs is done in ways that cause much unnecessary physical (as well as mental) suffering. The amended Animal Protection Act enables us to press definitive and specific charges of ‘physical suffering’ on the dog meat farmers and traders,” explained Yoo of CARE.

“Seals, as one of the endangered species, are protected by the Wildlife Protection and Management Act as endangered; thus it is punishable to capture, collect, damage or kill any of them. If an animal is not one of the endangered species, it is likely to be prohibited to kill it for fur by Animal Protection Act. For example, it is illegal to kill in front of other dogs or to kill by a cruel method under the Animal Protection Act,” said attorney Park.

“Most of the dog slaughters use an electric stick to kill a dog, so it must be considered as a ‘cruel’ method. However, judgments in the courts (and sometimes prosecution itself) may be different in judging this ‘cruelty.’ Also, prosecutors or courts tend not to strictly enforce the APA. Hence, the same slaughtering of a dog may have different results depending on the court. For example, even though a court once ruled that killing a dog using electric rods violated the APA, the other court recently decided that the same action is not illegal as they consider the method is not cruel, because of the fact that electric slaughter is also used in pigs.”

The question of whether slaughtering a dog by means of an electric pole is prohibited as cruel by Korea’s Animal Protection Act is currently pending before the Supreme Court of Korea, in a prosecutor-initiated case (2017-do-16732). (The link connects to a Korean language website concerning the case in the Court of Appeal).

Park’s organization, People for Nonhuman Rights, has filed an attorney’s written opinion with the court in that case, she noted.

Let’s Interpret the Lack of a Nobel Prize for Literature this Year as a Tribute to Leonard Cohen

While We're At It, Could Someone Bring a Trust Enforcement Action Against the Nobel Committee?

When the Swedish Academy announced on Friday, May 4, that there would be no Nobel Prize for literature awarded this year, it struck me that an entire 18 months had gone by since we lost Leonard Cohen. I rejoiced in Dylan’s receipt of the Prize in 2016 (for his songs of rebellion and romanticism, of course, not his spiritual contrition or whiskey), because his works played a memorable role in a very happy era in my life.

I also yearned for Cohen to get the Prize as well, for much the same reason. However, Cohen was a very different creature from Dylan, of course (although they worked in the same genre and locations and were contemporaries). For one thing, Cohen’s work in his youth was never sarcastic or bitter, and Cohen’s work is more consistently mysterious and full of tenderly romantic spirituality.

I don’t mean to be a Shiite about it (although I love partisanship in general), but Cohen deserved the Nobel Prize for literature for his songs every bit as much as Dylan did.

The Academy can chalk it up to scandal and “the currently diminished Academy and the reduced public confidence in the Academy" if they want to; they may even believe it.

However, I can’t conceive how something the Academy allegedly did wrong could entitle them to withhold all that money for another year. As far as I can see, old man Nobel told them to give the prize to the artist who created the greatest work “in an idealish direction” in the preceding year, and gave them no discretion to withhold the prize and the money based on their own behavior. In fact, that would have been fraught with moral hazard, as it would have presented an incentive toward wrong-doing on the Academy’s part.

So the Academy can explain the lack of an award this year however they’d like; as for you and I, let’s rest in peace in the knowledge that this year’s lack of a Nobel Prize for Literature award is a silent tribute to the late, great Leonard Cohen- in my opinion, one of the greatest English language artists of the last hundred years.

Kudos, Leonard!

Commemorating Innocent Victims of Violence Everywhere

Tomorrow is Holocaust Remembrance Day, according to the US Holocaust Memorial Museum. 

Remembrance Day Calendar — United States Holocaust Memorial Museum

Remembrance Day Calendar — United States Holocaust Memorial Museum

In fact, it looks like there are two of them: according to UNESCO, the day is around January 27 (the anniversary of the liberation of Auschwitz-Birkenau by Soviet troops).

International Holocaust Remembrance Day 2018

International Holocaust Remembrance Day 2018

My sympathies go out to innocent victims of violence everywhere.

All contents (c) 2018 John J. Otrompke, JD

All contents (c) 2018 John J. Otrompke, JD

A Preliminary, Optimistic Response to Bret Stephens’ Call to "Repeal" the Second Amendment

Deal with the Crisis, then Reform Society and Enhance Amendment II's Penumbra. 

by John Otrompke

New York Times newspaper writer Bret Stephens recently wrote an editorial calling for the “repeal” of the Second Amendment,1 apparently motivated by the unabated massacre of schoolchildren.2 

This phenomenon is both historically new and uniquely objectionable, and I agree that society must make the most diligent efforts to uncover what’s going on. I write only to express the objection that repeal is premature, because I don’t believe that either the current Supreme Court, or the Second Amendment, pose much of an obstacle to solving the problem. I’m afraid that Stephens is wasting his time fighting a paper tiger.

Personal enforceability of the Second Amendment is a notion of recent vintage, deriving from two recent Supreme Court cases,3 which were however limited in scope. 

The Supreme Court only upheld the right to own a handgun in one’s home,4 and hasn’t touched the Second Amendment in almost ten years. 

In fact, I believe that if Congress were to temporarily ban virtually every gun in the country except handguns in the home, while figuring out what to do, the Roberts Court might allow it, reasoning that the continuous series of atrocities is a crisis that meets the strict standards for interfering with enumerated rights.

It seems to me that might be a good idea, because hopefully researchers and policy experts could uncover what’s been going on, and solve the problem of massacres of children and young people.

On the other hand, the idea of arming some teachers and probably some students, is also not a bad idea. The practice of compulsory education causes problems with both proposed solutions. What gives a society that can’t even protect its young people from being slaughtered the right to use compulsion to teach anyone anything?

Probably the worst thing that could be done would be for the two sides to continue arguing and trying to twist one another’s arm, without doing anything. It is an emergency, and the people need to conduct pilot experiments to see what works.

That problem being solved, the people should indeed consider Stephens’ proposal for a constitutional amendment, because there are actually several shortcomings of the Second Amendment, in addition to the abominable problem of young people being massacred; that is, there are other ways in which the penumbra of interests referred to in the Second Amendment is mismatched with the society we have today. 

Within this penumbra is included the notion of civic virtue. I suspect that we would face the question of whether it is the Second Amendment we want to reform, or our society, and in my opinion, the answer is both.

                         An Unnecessary Linguistic Mystery Unraveled: 

                         The Missing Prong to the Second Amendment

Although I am a meta-pacifist (a neologism I will explain momentarily), I was very glad to discover the notions behind the Second Amendment, because they help me translate certain radical ideas I’m familiar with into American constitutional language. They also illustrate something which is wrong with our society: nobody- Democrats, “Republicans,” or the NRA, adequately support the values that are behind it. The residue of the Second Amendment and its three prongs are like the archaeological shards of an ideal which our society destroyed, buried, and forgot about centuries ago, and we suffer mightily for not understanding them.

Many have commented on the curious wording of the Second Amendment,5 and some used to opine that the first clause, about militias, restricts the second, about guns. But what these commentators miss is that in the original draft language proposed by states, there was a second clause about a phenomenon which was unpopular at the time: “the standing army.”6

At the time the Constitution, and thereafter the Bill of Rights, were created, “standing armies” (professional armies maintained by the sovereign in peacetime), were unpopular. The American revolutionaries inherited this aversion from the British, who had had their own revolution in the preceding century. The British generally hated their country’s soldiers, viewed them as untrustworthy potential oppressors of the state, and called them “Redcoats”; Rudyard Kipling wrote a poem about it called “Tommy.” The feeling was so ingrained that during the American Revolution, the British Crown had to recruit Hessian mercenaries to fight in America.

Another argument against having a standing professional army in peacetime is that once the army exists, its members have to invent reasons for them to continue to have their jobs, so they travel the world stirring up unnecessary quarrels.

Personally, I loved the discovery that the authors of the Second Amendment opposed the military, because In my view, America’s extensive foreign military policy of the past 100 years (including World War I and the works of Theodore Roosevelt) are a huge part of what’s been wrong with our society.

Ultimately, the framers of the Constitution decided to permit a professional army, but the policy against a permanent standing army survived in the constitution, in the provision forbidding Congress from financing it for more than two years at a time.7

Society was not intended to be defended permanently by a professional army; instead, it was to be defended by “the entire people in arms,” that is, the “militia.” 

There was also a history of religious violence in Britain between religious groups, with some groups having been disarmed, so the framers wanted everyone to be able to have guns. 

Draft versions of the Second Amendment also contained the language that became the Third Amendment (no quartering of troops in homes); hence, three prongs.

       A Penumbra Unloved by Liberals and Conservatives Alike

The “militia” being the entire people in arms, and primarily responsible for the security of society, it was also thought that the militia would have the blessing of the founders if it became necessary to overthrow the government.8

This “right of revolution” was also associated with other aspects of the vision of the 18th century “republican” authors of what became the Second Amendment: in a society governed by civic virtue, and both united and equalized by arms, there would be relatively little economic disparity, because everyone must have a stake in the social order. And in a society in which the people are armed, and the government is not very well-armed, the government would rule with a much lighter touch:

When tyrants tremble in their fear

And hear their death knell ringing, 

When friends rejoice both far and near

How can I keep from singing?

No storm can shake my inmost calm,

While to that rock I’m clinging

Since love is lord of heaven and earth,

How can I keep from singing?

-Robert Wadsworth Lowry

I should add a recognition that the racist notions of some of those who authored the Second Amendment were evil; but I assume that the crimes against humanity they committed do not hopelessly doom the rest of their vision.

In a sense, then, Stephens and other liberal commentators are right: the notions associated with the Second Amendment do not match our society, causing important problems. In addition to the atrocities to which innocent children are so often exposed, there are at least two others.

First, we have a permanent standing army. Especially given the creation of our nuclear arsenal, it would be unlikely for Congress ever not to renew the biennial  financing for the U.S. military.9

Secondly, given the sophistication of the federal military’s armament, it would be inappropriately difficult for the people to overthrow the government.10

According to some, the realization of the Second Amendment as originally intended would be dangerous and inappropriate, because the American people lack the “civic virtue” anticipated by the 18th century “republicans.” 

The answer, according to one author, is to remake not the Constitution, but remake society to be like the society the framers envisioned, by building civic virtue.11

             What is to be Done?

Hence, we are led to an important question: do we want to reform the constitution, or to reform the body politic to more closely resemble the idealistic society the framers envisioned?

I say both. 

I generally favor constitutional amendment, because it reminds people that we are capable of self-organization; exercises in self-government build civic virtue.

And according to Stephens, we need constitutional change anyway: If society decides that we don’t want the Second Amendment, we have to change the constitution; if, on the other hand, we want a real Second Amendment, we still have to change it. 

We have to choose: do we want our society to have the power to overthrow the government? Stephens argues almost as if he believes it’s impossible that the federal government could ever commit a great evil (like Viet Nam).12 Or does he think that we should ignore it? Or that we should not be able to use violence against the state to redress such evil?

I told you earlier that I am a “meta-pacifist,” a category I invented. I believe it conceivable that people may discover a cure for violence, and I assume it would be a good thing, and make people more rational and benevolent. I also assume such an invention (peace) would be a greater contribution to the human project than another violent revolution. That’s what I work toward.

Because of the government’s violent potential, a pacifist might believe in getting rid of guns, but not by government fiat.

I am also in favor of abolishing nuclear weapons, but I don’t know how, or whether we should do so unilaterally. But whether abolishing our professional military is a good idea or not, it was one of two essential viewpoints that made our constitution.

And neither of these notions are articulated by either side- neither the gun abolitionists, nor the gun freedom advocates. You’re not likely to hear the NRA criticizing the U.S. military, and the “Republican” is really just a party of counterrevolutionary neoconservatives. As for the liberal Democrats, they are supposed to be the party that favors international peace and relief for the poor, but they too often run pro-Wall Street foreign policy hawks for president (and maybe next, even another billionaire).

I say a pox on both of their houses- but as far as innocent young people are concerned, we should spare no effort to spare them from the world’s brutality.

The vision of the 18th century “republicans” is not present in either major political party. In order to break the duopoly, we have to be willing to risk everything- by refusing to compromise, we run the risk of electing Trumps. In my view, we need a strong voice in our national polity that opposes our foreign policy and believes that we have a right to revolution, the way an 18th century “republican” would.

One way to restore the Right to Revolution: amend the constitution to abolish the police, and to prohibit our military from being within the borders of the United States. 

                   Conclusion

On the other hand, if society concludes that the Second Amendment is no longer workable, and we want to abolish the right to violent resistance and revolution, we should decide whether we need to do other things to recalibrate the machinery of the Constitution to assure a mix of liberty and security.

Without a real Second Amendment, what other constitutional protections could we possibly add that could ever replace a body politic united by love and virtue and capable of subduing evil without turning to the state for intervention?

Would you change the Second Am? If so, how?

In my opinion, it is unnecessary to do what Stephens says and repeal the Second Amendment, because according to Heller and McDonald, the personal right to self-defense under the Second Amendment is actually much more limited than our statutory gun laws.

Nonetheless there are other mismatches between the Second Amendment and our society, and we should reform both the Constitution and society.

Notes:

¹ “To Repeat: Repeal the Second Amendment,” B. Stephens, New York Times, Feb. 16, 2018. https://www.nytimes.com/2018/02/16/opinion/repeat-repeal-second-amendment.html . This was actually the second time Stephens had made the argument; the first time was on Oct. 5.

² “What about another 17 murdered souls, and their classmates and families, and the inability of today’s conservatives to offer anything except false bromides and empty prayers?” Id.

³ District of Columbia v. Heller, 554 U.S. 570 (2008). McDonald v Chicago, 561 U.S. 742 (2010).

⁴ “The Interactive Constitution: The Second Amendment’s meaning,” National Constitution Center staff,   February 19, 2018.https://constitutioncenter.org/blog/interactive-constitution-the-second-amendments-meaning

5 “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

6 See, for example, Vermont Constitution, 1777: “That the People have a Right to bear Arms, for the Defence of the themselves and the State: -And, as standing Armies, in the Time of Peace, are dangerous to Liberty, they ought not to be kept up; and that the military should be kept under strict Subordination to, and governed by, the civil Power.” See also other contemporary state constitutions. http://constitutionalrights.constitutioncenter.org/app/home/writing 

7 US CONST., art. !, s. 8, clause 12: “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years[.]”

8 “The Embarrassing Second Amendment,” S. Levinson 99 Yale L.J. 637 (1989). https://www.firearmsandliberty.com/embar.html

9 “War and the Social Contract: Nuclear Policy, Distribution, and the Right to Bear Arms,” E. Scarry, 139 U. Pa. L. Rev. 1257 (1991).

¹⁰ “The Revolutionary Second Amendment,” B. McIntosh, 51 Ala. L. Rev. 673 (2000). Levinson (note 9 above) says that small arms alone would be sufficient to prevent the government from becoming tyrannical; McIntosh, on the other hand, says that the capabilities permitted by small arms would be sufficient for people to exercise the “right of resistance,” but not good enough to exercise the “right of revolution.”

¹¹ “Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment,” D. Williams, 

101 Yale L.J. 551 (1991).  

¹² “I know what the objections to this argument will be. What about John Locke and Cesare Beccaria? What about the preservation of American liberties and the encroachments of bureaucratic liberal despotism? Right.” Stephens, n. 1, supra.

Pondering Posner's Peevishness

by John Otrompke

I was researching False Claims Act cases recently, and I came across a strange pro se case called US ex rel Lu v. Ou, 368 F.3d 773 (CA 7 2004). I was struck at first by what seems to me to be the unnecessarily mean and biased comments of the judge who authored the opinion. 

I also found the case a little troubling because some reflection brought me to the theory that judges don’t use rules to decide cases; rather, they use rules to justify or explain results which they have already arrived at, based on unspoken a priori considerations.

Can any reader help me understand why the opinion was written the way it was?

The ultimate issue in the case is simple enough: a pro se litigant may not bring a qui tam action, because those lawsuits are brought on behalf of the government, and a pro se litigant who is not an attorney cannot represent anybody else.

Nor am I writing to quarrel with that rule; although I will note that it is not to be found in the text of the statute, but is instead part of that federal ‘Common Law.’ (1)

What I don’t understand is this: having stated the simple principle that controlled the outcome (no pro se qui tam actions), the judge didn’t stop there, but went on to conclude the opinion by noting that “the complaint is incoherent, even crazy...Lu describes himself as homeless and without a telephone.” Lu at 775.

Having already resolved the case in such an admirably economical manner, why add such an unnecessary, almost baroque flourish, as to suggest that the complaint itself is insane? Is the judge simply trying to cause society to shun the litigant?

A Worthy Oeuvre of Valuable and Diverse Scholarship

The Seventh Circuit judge who authored the opinion was, of course, Senior Lecturer Richard Posner, who retired last weekend. I like Posner’s work: I read his 1994 book, ‘Sex and Reason,’ when I was fresh out of law school, and it made quite an impression on me, especially his development of the idea of companionate romantic relationships (a notion some people take for granted today). 

The book struck me as an excellent example of what good scholarship is supposed to be: an analytic development grounded in history, not a parochial work of legal research. I found its libertarian bent quite divorced from the neoconservative reputation Posner and his ‘law and economics’ theories suffer from.

Posner supported unprivileged notions like LGBTQ freedom and equality long before they were accepted by the Supreme Court. His panel was also among the first to recognize an individual right under the Second Amendment to bear arms in public. Over the years, I have also respected some of his other opinions, such as one involving the right of Syrian refugees to settle in Indiana, notwithstanding state law to the contrary. 

Regarding Posner’s review of Melville’s ‘Billy Budd’ (2), on the other hand, I might offer a pithy comment some day, after the piquancy, poignancy and puissance of this bittersweet moment have passed.

But back to the case under discussion. As  a judge, journalists have said that Posner’s “acerbic wit attracted an almost cult-like following within legal circles.” Fun is fun, but how does Posner know that Mr. Lu’s complaint is crazy? 

The word ‘crazy’ carries an implication of insanity, today thought to be a more or less precise scientific category. But is Posner a medical doctor? He doesn’t refer to any particular things in the qui tam case that show that Mr. Lu’s complaint is crazy. What kind of insanity does Posner think Mr. Lu’s complaint suffers from? Is it in the Diagnostic and Statistical Manual? 

And even if Mr. Lu’s complaint was crazy, why should Posner mention it? I thought most judges are usually eager to be polite to innocent pro se civil litigants, so that those who lose won’t think that the government despises them. 

    An Inappropriate Bully Pulpit for Neoliberal Capitalism

But the alleged ‘craziness’ of the complaint isn’t the only gibe Posner takes at Mr. Lu. The work of the appeal being done, why does Posner also make a point of mentioning Mr. Lu’s homelessness and his unconventional lack of a telephone? Does Posner, said to be a free market partisan, think that a person has to be insane to be homeless and without a phone in the United States?

My own feeling is that in deciding this case, Posner simply saw and seized an opportunity (any opportunity) to prop up his laissez-faire economic theories (which have wound up getting less airplay over the decades than everyone expected).

But there is another theory: journalists have also quoted Posner as saying that he believes “that judges should focus on the right and wrong in every case." By focusing on what he perceives as the insanity of Mr. Lu’s complaint, is Posner just ensuring that the law fits the facts in the case at hand? 

If it is, it presents another problem. After 30 years, the Reagan-appointed Posner (and here he acts like a Republican party loyalist) has retired, just in time to let Donald Trump try to appoint his successor. But if federal appeals courts scour the facts of cases to make sure the rules they use are correct, then are we a society governed not by laws- but by what? By whom?

¹ I do, however, note as a counter-example a New York City law which allows private citizens to bring actions against automobile drivers for curbside idling- writing their own tickets, as it were, apparently without needing an attorney. 

² “Law and Literature: A Relation Reargued,” 72 Va. L. Rev. 1351 (November 1986).

All contents (c) 2017 John J. Otrompke, JD