Sloppy thinking on animal rights
Before I get to the negative part, I will say that Cupp makes an effective argument against animal rights proponents using corporate personhood and the personhood of ships to show that the law can easily extend personhood beyond individual adult humans, and thus to animals. In brief, he points out that all theories defending corporate and ship personhood ultimately rest on defending the interests of individual adult humans (e.g. corporate shareholders or those who wish to sue a company or ship for harms done by it). If the article had focused on this point, I would have been happy.
However, Cupp goes on to try to rebut the argument from marginal cases, which holds that infants and mentally impaired adults are in the same boat as animals according to any standard of personhood (aside from raw species favoritism) and thus animals deserve the same rights as these non-paradigmatic humans. In passing, he references the argument that such animal-human comparisons are unhelpful because they are detrimental to, and attempt to appropriate the still-shaky victories of, other progressives -- an argument I think has merit. But his real interest is in addressing the human-animal comparisons on their own terms by showing that animals and non-paradigmatic humans are not in fact analogous.
To do so, he rattles off the standard humanist arguments -- infants and mentally impaired humans are still humans, and only moral agents or those similar to them (by some poorly defined standard of similarity that places heavy emphasis on species membership) can be moral patients because morality is based on a social contract. My problem here is not just that I think these arguments are wrong, it's that he barely acknowledges that anyone has considered or tried to rebut them. Countless pages have been written by animal rights theorists rebutting these contractualist arguments. Maybe they were all making philosophical mistakes. But if you want to write an anti-animal rights philosophy article in 2009, you have to at least show that you recognize those counter-arguments have been made, and preferably address and rebut them. His reliance on standard, pre-animal-rights-movement contractualist arguments is quite at odds with the paper's title's claim to be going "beyond animal rights."
Cupp attempts to give some justification for taking this contractualist approach by pointing out that this view is widely held in the US. That it is -- but pointing it out just begs the question. Animal rights advocates are well aware they are asking people to change their way of thinking and acting in a fairly significant way. And the idea that animals are fair game to be raised in factory farm conditions is arguably deeper-rooted in US culture than any formal Rawlsian contract analysis that might be drawn on to justify it.
He finishes up the article's substantive content by invoking yet another fundamentally conservative principle -- giving you rights makes me less special. He massages this idea around into a semi-respectable point: if we argue that animals deserve rights because of characteristic X (sentience, practical autonomy, etc), then that opens the door to denying rights to humans who lack X. There's some truth to that -- but stating the case this way makes a question-begging move to presuppose the importance of humanness vs non-humanness. But humanness is just another possible characteristic on the basis of which rights can be assigned, another value that could be substituted in for X. So let's rewrite the claim in a more neutral way: If we argue that beings deserve rights because of characteristic X, then some beings may be denied rights because they lack X. Confronted with any being or class of beings that has been denied rights on the basis of their lack of X despite seeming prima facie eligible, we can then see that there are two possible responses. First, we may realize that these beings did not deserve rights after all, since X clearly encapsulates all of our reasons for wanting or needing to confer rights. This conclusion can in fact be drawn about a Homo sapiens by someone not that interested in animal rights -- consider Ampersand's view of Terri Schiavo. Or second, the fact that we don't like that these beings are being denied rights can prompt us to decide that there's some other factor instead of or in addition to X that provides a basis for conferring rights. Such an additional factor -- call it Y -- may invite into the circle of rights-bearers the target group as well as additional Y-holding beings who lacked X but differ from the target group in holding some third characteristic that has not (yet) been assigned any moral significance -- e.g. starting with "current sentience" (X) and then adding "past or future sentience" (Y) would admit humans in comas, but also chimpanzees in comas. Cupp argues that the only factor that can effectively work on this second path, the only factor that can fill the role of Y (and Z, etc) in bringing in all the beings that he can't bear to exclude from rights-holding, is "membership in Homo sapiens." That may be so, but that just throws us back to the argument about speciesism and whether species membership itself is a relevant moral criterion. But this detour through considering whether any X other than species membership might turn out to be too narrow has raised an additional difficulty for Cupp's argument -- it's now clear that he must not only defend the relevance of species membership, but also defend its uniqueness, i.e. why can't the criterion for rights be "sentience (or whatever X a given animal rights philosopher wants to use) AND/OR membership in the human species," or "membership in any species whose paradigmatic members are sentient" (which would include, but not necessarily be limited to, humans)**.
The article ends with a flurry of question-begging flourishes, mostly centering around the economic cost of ending violations of animals' alleged rights (the economic costs of ending human slavery are not a counterexample, we're told, because ending human slavery was morally justified) and the fact that promoting animal rights would require us to say, even to the faces of starving Rwandans, that animals have rights (no s***, Sherlock). I assume he means these to be the coup de gras to animal rights theories, but they work better as the coup de gras to his claims to be taken seriously as a critic of animal rights philosophy.
The article's conclusion argues that a focus on human responsibility, rather than animal rights, would be both more successful and better for animals. Unfortunately he does effectively nothing to flesh out what the basis or scope of this responsibility would be, leaving the claim sounding more like a way of avoiding being labeled an apologist for extreme animal abuses like dog fighting (he approvingly cites the outrage at Michael Vick) without compromising his assertion of the unique importance of humanness.
*I use the term in a broad sense to encompass all positions that assert a strong moral considerability for animals for their own sakes, including both "rights" theories in a narrow sense (e.g. Tom Regan) as well as utilitarianism, feminist care ethics, etc. In the article this post discusses, the author talks a lot about rights in the narrower sense, but I see no reason any of his arguments wouldn't extend to other considerability-for-their-own-sake views that fall under the broader definition.
**Basing the rights of one being on the characteristics of that group's paradigmatic members is highly problematic, and Cupp does raise this concern against crude extensionist uses of the argument from marginal cases. But his ability to press this claim is undercut by his heavy reliance on it in attempting to show why infants and mentally impaired people deserve rights whereas animals with similar capacities don't -- he argues that infants get rights because they can turn into typical adults later, and mentally impaired people get rights because typical adults can turn into mentally impaired people later. Giving up this reliance on relating marginal cases to paradigmatic people would require either resort to raw speciesism (which is what the argument was meant to support), or losing the ability to declare the kind of difference between human and animal cases that he seeks. (My own view is that if a being cares about how its life goes, that care counts -- and if it doesn't or can't care, then there's nothing there to count. Considerations of practical autonomy and moral agency factor in on a practical level to how beings' caring is actualized, but they don't make typical adult individual humans a paradigm or fullest case, since infants etc. care about their lives just like supposed paradigm people.)