SOON the Supreme Court may be forced to consider a thorny question it has hidden from for too long: Does the Eighth Amendment's prohibition of cruel and unusual punishment protect shellfish?

Okay, perhaps not "soon." The issue hasn't gone to appeal. And, it's not--yet--technically the subject of any state or federal litigation. But last month the Bobo supermarket chain Whole Foods announced that it would no longer be selling live lobsters or soft shell crabs from in-store tanks. They concluded that the practice was inhumane.

The company's press release was quick to point out that it would still be retailing frozen lobster and crab products (products--as in flesh.)

Whole Foods based its decision partly on the dubious conclusion of a 2005 European Union report that found lobsters feel pain and learn. The rest of the equation was their finding (noticing, really) that when sold live, lobsters--natural loners among decapod crustaceans--can be transported and stored one on top of another in cramped tanks for up to six months before final purchase. Earlier this year Whole Foods' Northeast and Atlanta stores briefly installed "condos" in their lobster tanks: short sections of PVC pipe that the lobsters could snuggle up inside of in privacy. But it wasn't a comprehensively humane solution. Dropping live sales, the company switched to a vendor that dispatches the creatures right off the boat, in just seconds, with a pressurized metal tube.

Amy Schaefer, a Whole Foods spokesperson, summed up the corporate thinking: "Lobsters are going to be caught and going to be eaten

This is essentially the same reasoning the Supreme Court has used in interpreting the Eighth Amendment: Capital punishment is not by itself cruel and unusual (and, presuming the synonym, inhumane), but you can do it in certain ways that make it so, and those ways are verboten.

Whole Foods, by reasoning that implicitly says lobsters have a right (just like U.S. citizens!) to be treated humanely in this particular way, is extending a parallel, abstract protection against the cruel and unusual to maritime invertebrates.

From here, the legal issues could complicate exponentially. If lobsters are entitled to their own sort of Eighth Amendment, do they get constitutions, too? How can the grocery store lobster tank square with Roeper v. Simmons, which prohibits the execution of those under 18 at the time of their crime? Homarus americanus can live to be 50 years old, though by the time they're butter sauced most lobsters are between 4 and 7. On a human scale that's something like 11 years old. Are trapped lobsters being provided with adequate defenses? (This might hinge on when those rubber bands go on.) What is due process for arthropods? (Probable cause = probable deliciousness?) What adjustments need to be made to Atkins v. Virginia--banning the execution of mentally retarded convicts--given that one can't describe a lobster's "brain" without quote marks?

Perhaps a higher retail authority--say Wal-Mart--will move to overturn Whole Foods' ruling.