From: nobody@REPLAY.COM (Anonymous)
Date: Tue, 13 Jan 1998 13:17:11 +0800
To: cypherpunks@toad.com
Subject: Re: Talk of Banning Research into Human Cloning
In-Reply-To: <v03102800b0e02a107673@[207.167.93.63]>
Message-ID: <199801130510.GAA26649@basement.replay.com>
MIME-Version: 1.0
Content-Type: text/plain



On Mon, 12 Jan 1998, Tim May wrote:

[...]
> Clinton is asking Congress to ban research into human cloning.
[...]
> No, Clinton is asking for Congress to *ban* such research, regardless of
> where the funding came from. "Clone a cell, go to jail."
[...]
> 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.  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.

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.

> 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. 

> 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....

[...]
> 
> 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.:

* bans on suicide
* bans on plural marriage
* bans on certain abortions
* bans on ingestion of some substances

The courts in their infinite wisdom have not found these to be
unconstitutional laws.

> Any implications for crypto? If Congress can successfully make certain
> types of science illegal, felonizing the search for truth, why not a ban on

Again, this misunderstands somewhat: the ban is on EXPERIMENTS (which are
indeed part of the search for truth), but not writing, reading thinking

> certain types of mathematics research?

Not directly, IMHO.

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.