Tcl - the Docked Horse's Tail: Cruelty and the Commerce Clause - November 2005 - Historical Perspectives

• Publication year: 2005
• Pages: 96
• Citation: Vol. 34 No. 11 Pg. 96

34 Colo.Law. 96 Colorado Bar Journal 2005.

2005, November, Pg. 96. TCL - The Docked Horse's Tail: Cruelty and the Commerce Clause - November 2005 - Historical Perspectives

The Colorado Lawyer
November 2005
Vol. 34, No. 11 [Page 96]

Departments and More
Historical Perspectives
The Docked Horse's Tail: Cruelty and the Commerce Clause

This historical perspective was written by Frank Gibbard, a staff attorney with the Tenth Circuit Court of Appeals and Secretary of the Tenth Circuit Historical Society. The views expressed herein are those of Frank Gibbard and not of the Tenth Circuit or its judges. Gibbard may be contacted at Frank_Gibbard@ca10.uscourts.gov.

I do not deny that beasts feel: what I deny is, that we may

not consult our own advantage and use them as we please,
treating them in the way which best suits us.
- Benedict de Spinoza, Ethics, Pt. IV, Prop. XXXVII n.1.

I care not much for a man's religion whose

dog and cat are not the better for it.

- Abraham Lincoln

See http://www.theosophical.org/theosophy/questmagazine/julyaug2001/animals

I am betting that the reader will find Lincoln's sentiment more congenial than Spinoza's. The Romantic Era, which succeeded the Age of Reason, has made Spinoza's seventeenth-century logic seem cold and unfeeling to modern ears.

As attitudes about cruelty toward animals have evolved, thorny ethical and legal issues have co-evolved, to bedevil commentators and legislators alike. In the words of the old saw about the Puritans: Do we outlaw bear baiting because it causes the bear pain or because it gives the spectators pleasure?

The Colorado Supreme Court addressed this issue a century ago, in two cases involving the curious practice of horse docking. "Docking" is a cosmetic procedure performed to shorten a horse's tail. It is not as harmless as it sounds. Docking does not simply involve clipping the hair that forms the tail; it is a surgical operation that removes a majority of the vertebrae in the horse's tailbone. [See West's Ann. Cal. Penal Code § 597n (1999) (defining "docking").] Docked horses were considered quite stylish around the turn of the last century. Unamused, the Colorado legislature passed a statute prohibiting the docking of horses and the importation of docked horses into the state. Owners of such horses were given ninety days to register their horses. Use of an unregistered docked horse was made illegal. [Colo.Sess.L. 1899...