And if the only reason that we don't recognize animal's rights is that they are “food” – Then what of cats & dogs in “modern” Asia? and horses in Europe? Beyond “survival” we've evolved to a point of progress that “meat” is not “necessary”… It is whim and habit that this practice continues – hardly justification to deny an innocent, sentient being a “right” to not be killed. It sounds like you've manufactured an extremely arbitrary reason to refuse recognition of rights.

There has to be more than “they are food”… Please elaborate. Thank you.

If we were to recognize ANY legal “rights” of animals, then surely the right to not be killed and eaten would be at the forefront. But we do not recognize that, because many of these animals are, in fact, food. We can take it to an extreme and ask if flies have any sort of inherent rights. Should people be prosecuted for swatting flies or putting out no-pest strips which doubtless result in the fly dying a slow, agonizing death? We do not.

But we make the CHOICE (and “choice” is the key word here) to extend certain, variable protections to some of the animals under our care, our charge or those we encounter under normal circumstances. I suppose that's the key distinction I'm trying to make here. We extend protections, perhaps not in an inconsistent fashion, to various animals because it seems the right thing to do.

But reading what little I've found so far of Sunstein's comments, (perhaps out of context?) that animals could act as a plaintiff with a human working as their representative in court. Again, it may sound like semantics, but it's an important distinction.

The question of animal rights obviously cannot be answered without first establishing where rights come from. If you have a view that rights are derived from an implicit social contract, based on the possibility of mutual consent, then animals are not likely candidates, since an animal and a human cannot come to an even implied mutual agreement on rights. If you have a more positivist view based on the ratification of the Constitution, then needless to say animals aren't going to win out there either. But OTOH, if you view rights as based on sentience or cognition, then it makes sense to suggest that higher animals might have some rights, although presumably not as many as human beings.

Of course, it would be helpful in all of this to actually have read Sunstein's argument, which I haven't, and I suspect you haven't either. I doubt that Sunstein believes that animals have, say, the right to be protected against unreasonable search and seizure or the right to free speech. I would guess, rather, that his argumetn is that animals have a more rudimentary form of rights – like the right to be protected against unnecessary cruelty, etc.

I don't really get your distinction between “protections” and “rights”. Could you make that clearer? If we as humans have a duty not to subject animals to unnecessary cruelty, then by definition animals have a right to be protected against such cruelty.

All rights are circumstantial and can change depending on the time and the framework.

In some cases I don't view the idea of animals having “rights” to be necessarily far-fetched. Specifically, should some large intelligent creatures have the “right” to exist in the ecosystems they evolved in, at least to the extent they don't become extinct? Of course a Tiger, a Gorilla, or a whale can't got to court and advocate for it's species, but he idea of “rights” is an ideal, not a promise and we choose where to draw the line. Placing the limits exclusively at one species strikes me as unimaginative at best, and unforgivable at worst. I'm no PETA member, I even shoot a deer most years so I can have venison in the freezer, but my opinions are also informed by a lifetime of observing nature, and being a cat and dog owner. Somewhere between the absurdity of worrying about slapping flies, and the driving of some magnificent species to extinction, there has to be some rational middle ground.

A side note but one worth mentioning here is once again we see a “czar,” another manifestation of a disturbing phenomenon (is the administration dysfunctional, childish _and_ over-bureaucratic, or just euphemistic about a figurehead in order to manipulate again the opinion of manipulable people?).

The real scandal in this, I think, is the ability of one Senator to shut down the whole process.