Re: Talk of Banning Research into Human Cloning (fwd)

Forwarded message:

> Date: Tue, 13 Jan 1998 06:10:14 +0100 (MET)
> Subject: Re: Talk of Banning Research into Human Cloning
> From: nobody@REPLAY.COM (Anonymous)

> > Though I'm not a constitutional expert, this would seem to me to be a
> > violation of various rights. A First Amendment right to speak and publish
> > as one wishes for one, a Fourth Amendment right against search and seizure
> 
> Actually, not at all.
> 
> There is no ban on publishing information on cloning, "just" a ban on the
> activity.

Spin doctor bullshit. Without the research there isn't anything to publish.
By banning the basic research we would in fact be banning the publishing of
the results of that scientific research.

>  Hence the first amendment is not implicated.  If it were the
> case the every action (as opposed to speech/publication) were protected by
> the 1st Am. then every statute making robbery a crime would be
> unconstitutional too.

Not at all. Equating swinging of ones fist in a empty field and swinging it
into somebodies nose and then taking that supposition as justification to
ban fist swinging *is* most certainly unconstitutional. Furthermore, robbery
isn't illegal under the Constitution unless its the federal government
taking the material and refusing to follow the Constitutional directive to
pay for *all* property, irrespective of how it was gained, for public use as
those duties are relegated per the 10th to the purvue of the states.

> Similarly, the 4th Am. is not implicated.  The right to be secure against
> UNREASONABLE search and seizure is not violated when and if congress
> passes a law defining a new crime, or you are arrested for committing it.

The question here is whether Congress even *has* the power to regulate those
sorts of behaviours without an amendment being passed by the states to
surrender their authority per the 9th and 10th to the federal government.

> > and to be secure in one's papers, and probably more general rights that
> > have long-held that government agents cannot tell people what books they
> 
> again, note that the ban is on CLONING, not THINKING OR WRITING OR READING
> about cloning.  It's not the same thing. 

Without doing the research it isn't possible to think very much about
cloning except in a *very* abstract manner. That forcing of abstraction
against ones will may very well infact be unconstitutional.

> > may read, what thinking they may do, and  whom they may asssociate with (if
> > the Civil Rights Act is viewed as the unconstitutional anomaly it is).
> 
> This is an aside, but the CRA is in no way anomalous given the 13th, 14th
> and 15th Amendments.  It is only "anomalous" if one sticks to the
> Constitution as written in the 18th century... and ignores the articles
> written in that same century that clearly contemplate amendments....

The articles contemplating the amendments are irrelevant to this issue. Only
the actual amendments are relevant. What people might *want* to do has
nothing to do with what they *can* do under the limiting documents of this
country.

> > But a ban on cloning research would not be a matter of "national security,"
> > only of ethics and religious beliefs. Whatever the arguments for banning
> > unapproved research into CBW and nuclear weapons, banning cloning research
> > is an entirely different set of issues.
> > 
> 
> Arguably, many of the legal bans in force today are due to ethics, e.g.:

No, they are a result of political wrangling by small groups to gain
political power and the economic and social conseuences thereof. They also
result from a clearly premeditated absolution of the Constitution that these
self same 'representatives' gave an oath to uphold with their lives. The
justification that is profered is the ethics of the constituents.

> A. Michael Froomkin          +1 (305) 284-4285; +1 (305) 284-6506 (fax)
> Associate Professor of Law   
> U. Miami School of Law       froomkin@law.miami.edu
> P.O. Box 248087              http://www.law.miami.edu/~froomkin/
> Coral Gables, FL 33124 USA   It's warm here.

Your a law professor and your logic, respect for the Constitution, and
basic scientific comprehension is this bad? No damn wonder we're in the shit
hole we're in now...


    ____________________________________________________________________
   |                                                                    |
   |      Those who make peaceful revolution impossible will make       |
   |      violent revolution inevitable.                                |
   |                                                                    |
   |                                          John F. Kennedy           |
   |                                                                    |
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   |            _____                             The Armadillo Group   |
   |         ,::////;::-.                           Austin, Tx. USA     |
   |        /:'///// ``::>/|/                     http://www.ssz.com/   |
   |      .',  ||||    `/( e\                                           |
   |  -====~~mm-'`-```-mm --'-                         Jim Choate       |
   |                                                 ravage@ssz.com     |
   |                                                  512-451-7087      |
   |____________________________________________________________________|

> > There is no ban on publishing information on cloning, "just" a ban on the
> > activity.
> 
> Spin doctor bullshit. Without the research there isn't anything to publish.
> By banning the basic research we would in fact be banning the publishing of
> the results of that scientific research.

This is a more significant difference than you let on: if the research is
done abroad, it can be published here.  To the extent that one can
theorize without experimenting, that too can be done here.  

> Not at all. Equating swinging of ones fist in a empty field and swinging it
> into somebodies nose and then taking that supposition as justification to
> ban fist swinging *is* most certainly unconstitutional. Furthermore, robbery

Congress has the power to choose whether to ban acts when the cause a harm
(fists that connect to federal noses), or just to ban acts whether or not
they cause harms (sending threats to government officials; broadcasting
without a license on an unused frequency).  Like it or not, there is no
question that most of these bans -- including the cloning ban -- are
constitutional under the commerce and other powers, the copyrights clause
notwithstanding. 

PS.  I killfiled this guy ages ago on the grounds of rudeness, general
unpleasantness, and especially a complete and utter incomprehension about
how the law in this country operates.  It is as if someone once read some
software company's publicity about how easy it is to operate their
software and concluded they should therefore be able to write programs in
any language.  

Since someone forwarded me this post, I'm replying to it, but I doubt I'll
bother doing so in the future.  I entered this thread because Tim May made
some comments; I respect his writing and I think other people probably do
too.  As a result, it seemed important to offer some basic doctrine as a
response.  Note, again, that I'm not expressing a view on the MERITS of
the legislation, just one law professor's view on whether courts would be
likely to uphold it if it passes. 
 
A. Michael Froomkin          +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law   
U. Miami School of Law       froomkin@ no spam please
P.O. Box 248087              http://www.law.miami.edu/~froomkin/
Coral Gables, FL 33124 USA   It's warm here.

At 11:02 AM 1/13/98 -0800, Tim May wrote:
>As I have made clear, I don't believe "banning research" which is neither
>"commerce between the states" nor a direct harm to others (as the "robbery"
>example Michael Froomkin used earlier as a parallel is), is supported by
>the Constitution.

There are different degrees of UnConstitutionalness.  Some things are so
blatantly off the edge that even if Congress passed them, they'd be laughed
out of the first court that addressed them, like banning plant-growing
or discrete mathematics or arresting everybody with Japanese ancestors.
Others are much grayer areas, where court cases addressing them 
would take a long time and cost a lot of money, which can be prohibitively
expensive for the early phases of research.

>And if the cloning ban is a ban on research in certain areas, as many are
>pushing for (but, again, the final laws have not been proposed, much less
>passed, so we'll have to wait), then is this not prior restraint on
>publishing?

At least for the US, the important issue is that Congress hasn't passed 
any laws, nor do they need to - this is a speechmaking opp for Clinton,
and maybe for a few right-wing or left-wing Congresscritters,
so they can all sound concerned about this scary new technology,
and so the public will remember that they feel our pain.

A much more realistic, and Constitutional, possibility is that the Feds
will ban use of Federal money for cloning research.  As a civil
libertarian, I think that's just fine, and they should do the same
to other controversial research, like nuclear weapons and fetal parts,
for which significant fractions of the public don't want to be forced
to fund those activities they believe to be immoral or dangerous.

Alternatively, [Note: End of serious section] they could use the
confiscatory tax model pioneered with the machine gun and marihuana bans -
the tax on cloning body parts is an arm and a leg, but if you
clone an entire human it'll cost you your firstborn child...
				Thanks! 
					Bill
Bill Stewart, bill.stewart@pobox.com
PGP Fingerprint D454 E202 CBC8 40BF  3C85 B884 0ABE 4639

I wonder if it is the intention of those who support a ban on human cloning
to prevent my friend who lost his forearm in the Vietnam War from having a
new one grown and attached?


-------------------------------------------------------------------------
Bill Frantz       | One party wants to control | Periwinkle -- Consulting
(408)356-8506     | what you do in the bedroom,| 16345 Englewood Ave.
frantz@netcom.com | the other in the boardroom.| Los Gatos, CA 95032, USA

> I wonder if it is the intention of those who support a ban on human cloning
> to prevent my friend who lost his forearm in the Vietnam War from having a
> new one grown and attached?

Yup. Unless there's some remarkable breakthrough, you can't just grow an
eyeball, or a kidney, or whatever. You've gotta grow the whole body. In
time, we might be able to genegineer the process for optimal production of
the targeted body part, likely with all sorts of side effects that would
be, er, detrimental in a "real" person.

Oh, wait, we'll never have the chance to do those studies in the first
place. Hope old "lefty" is happy with just one arm.

dave

At 8:02 AM -0800 1/13/98, Michael Froomkin (as Anonymous) wrote:
>> > There is no ban on publishing information on cloning, "just" a ban on the
>> > activity.
>>
>> Spin doctor bullshit. Without the research there isn't anything to publish.
>> By banning the basic research we would in fact be banning the publishing of
>> the results of that scientific research.
>
>This is a more significant difference than you let on: if the research is
>done abroad, it can be published here.  To the extent that one can
>theorize without experimenting, that too can be done here.

I don't believe we know yet what the proposal is. I've heard some versions
which allow any and all research up to, but not including, the actual
production of a viable human clone. And I've heard versions being proposed
which would push the ban further back down the line.

As I have made clear, I don't believe "banning research" which is neither
"commerce between the states" nor a direct harm to others (as the "robbery"
example Michael Froomkin used earlier as a parallel is), is supported by
the Constitution.

Just as I don't believe "banning activity X" is generally supported unless
there is some constitutional mention.  To pick some examples, banning
research into UFOs would not be supported. Banning jumping on pogo sticks
would not be supported. Banning possession of wool sweaters would not be
supported.

(I could go on, but won't. There are degrees of what "unconstitutional"
means. I take a civil libertarian, even libertarian (of course), view about
what is an acceptable role for government and law. We have debated this
many times, and I have no time to debate Michael again on this issue.
Suffice it to say I think it completely inappropriate, and
"unconstitutional," for government to ban research.)


>Congress has the power to choose whether to ban acts when the cause a harm
>(fists that connect to federal noses), or just to ban acts whether or not
>they cause harms (sending threats to government officials; broadcasting
>without a license on an unused frequency).  Like it or not, there is no
>question that most of these bans -- including the cloning ban -- are
>constitutional under the commerce and other powers, the copyrights clause
>notwithstanding.

This broad use of the commerce clause could of course be applied to ban
almost any activity. I don't think the Founders had this in mind, but,
again, I have a civil libertarian view of such things.

If the commerce clause is claimed to apply to cloning--how, by the
way?--then it can apply to mathematical research, linguistics research, and
just about every other kind of research.

And if the cloning ban is a ban on research in certain areas, as many are
pushing for (but, again, the final laws have not been proposed, much less
passed, so we'll have to wait), then is this not prior restraint on
publishing?

(BTW, most of the "effort" toward human cloning will be the 99.5% of  the
research, publication, discussion, etc. leading up to the final
implantation. If the ban is to have any meaning, it must hit this 99.5%,
just as the end of Federal funding has targetted this 99.5%. To wait until
the final act is too late, as that can then be done in a foreign lab...or
in any number of U.S. labs which the Clone Police will of course be unable
to monitor!)


>PS.  I killfiled this guy ages ago on the grounds of rudeness, general
>unpleasantness, and especially a complete and utter incomprehension about
>how the law in this country operates.  It is as if someone once read some
>software company's publicity about how easy it is to operate their
>software and concluded they should therefore be able to write programs in
>any language.


Yeah, I've gone back to killfiling him, too. Too many rants, too many
forwardings of online news articles, and, as you say, a peculiarly
literalist interpretation of the Constitution. (I also have somewhat of a
literalist interpretation, but hopefully a more justified one.)

>Since someone forwarded me this post, I'm replying to it, but I doubt I'll
>bother doing so in the future.  I entered this thread because Tim May made
>some comments; I respect his writing and I think other people probably do
>too.  As a result, it seemed important to offer some basic doctrine as a
>response.  Note, again, that I'm not expressing a view on the MERITS of
>the legislation, just one law professor's view on whether courts would be
>likely to uphold it if it passes.

I think Michael Froomkin has far too expansive a view of the powers granted
government in the Constitution. The frequent citing of the commerce clause
and "other powers" can be used to argue that government has the power to
regulate just about everything, to tell people what kind of clothing they
can wear (they might cross state lines), to limit access to research
(commerce again), to tell them whom they must hire and whom they may not
hire (Civil Rights Act), and so on.

At least most proponents of draconian new laws restricting crypto, for
example, adopt the fig leaf of talking about "compelling national
interests" and suchlike. They don't simply cite the commerce clause as the
basis for restricting crypto.

(Even flakier arguments, in my view, are ones based on nebulous "public
welfare" arguments. These can be used to ban nearly anything, from the
eating of meat to the location of casinos to the licensing of
broadcasters....a recipe for a total state.)

It'll be interesting to see if the ACLU steps into the "ban on cloning,"
especially any possible (and likely, I think) "ban on cloning research"
laws. If they accept Prof. Froomkin's argument that such a ban is ipso
facto constitutional, I'd be surprised.

And, like Froomkin, I'm not arguing for the merits or demerits of human
cloning research (though I believe it's already unstoppable, and any ban
will simply move it into the "bootleg research" area, which tickles my
crypto anarchist interests anyway!). And I hope the ACLU would not argue on
the basis of merits or not of such research.

--Tim May


The Feds have shown their hand: they want a ban on domestic cryptography
---------:---------:---------:---------:---------:---------:---------:----
Timothy C. May              | Crypto Anarchy: encryption, digital money,
ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
Higher Power: 2^2,976,221   | black markets, collapse of governments.
"National borders aren't even speed bumps on the information superhighway."

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At 10:17 AM 1/16/98 -0800, bill.stewart@pobox.com wrote:
>At 11:02 AM 1/13/98 -0800, Tim May wrote:
>>As I have made clear, I don't believe "banning research" which is neither
>>"commerce between the states" nor a direct harm to others (as the
"robbery"
>>example Michael Froomkin used earlier as a parallel is), is supported by
>>the Constitution.
>
>There are different degrees of UnConstitutionalness.  Some things are so
>blatantly off the edge that even if Congress passed them, they'd be
laughed
>out of the first court that addressed them, like banning plant-growing
>or discrete mathematics or arresting everybody with Japanese ancestors.
>Others are much grayer areas, where court cases addressing them 
>would take a long time and cost a lot of money, which can be prohibitively
>expensive for the early phases of research.

Hate to bust your bubble, but they did the Japanese thing during WWII...the
survivors and next of kin finally got a token payment last year.

>Alternatively, [Note: End of serious section] they could use the
>confiscatory tax model pioneered with the machine gun and marihuana bans -
>the tax on cloning body parts is an arm and a leg, but if you
>clone an entire human it'll cost you your firstborn child...

They have machine gun bars!!!  I think I'll take up drinking! :)


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Jonathan Wienke

PGP Key Fingerprints:
7484 2FB7 7588 ACD1  3A8F 778A 7407 2928
3312 6597 8258 9A9E D9FA  4878 C245 D245 EAA7 0DCC

RSA export-o-matic:
print pack"C*",split/\D+/,`echo "16iII*o\U@{$/=$z;[(pop,pop,unpack"H*",<>
)]}\EsMsKsN0[lN*1lK[d2%Sa2/d0<X+d*lMLa^*lN%0]dsXx++lMlN/dsM0<J]dsJxp"|dc`