From: Russell Blackford (rblackford@hotmail.com)
Date: Sun Aug 12 2001 - 01:31:04 MDT
I'm not sure what Charles is asking for.
(1) I assume there is a power in the US constitution that enables federal
research funding, probably with delegation to the executive branch. If so,
the President can use this selectively, no? What am I missing?
As for the ban on human cloning, that sounds harder, coz...
(2) In the US or Australia, you have to find a constitutional head of power
(such as the interstate commerce clause, which has been read *very* widely
by the courts in the US) before the federal legislature can enact any law at
all. Otherwise, legislative power is left entirely with the states, which
can enact laws on any subject. (In Canada, the situation works in reverse:
the provinces have enumerated powers with a default power to the national
legislature to enact laws on anything.)
It is widely commented upon here that it is not clear what power the federal
legislature has to ban human cloning. It may have to fall back on the
foreign affairs power, but I'm not aware what international treaties we may
be party to that would require us to pass such legislation. Someone in the
US might well ask the same question.
My gut feeling is that there *are* issues about an appropriate head
legislative power to support the relevant provision passed here in the
Genetic Technology Act and that similar issues might arise with the
legislation being dealt with currently by the US Congress. I would assume
that these would get tested eventually.
Or is Charles talking about...
(3) a constitutional *restriction* on power, as opposed to the availability
of an appropriate head of legislative power in the first place? If that's
what he means, he may be right, though it's very open to argument. In the
Martha Nussbaum and Cass Sunstein book _Clones and Clones_, Sunstein's
contribution is a brilliant piece in which he writes two imaginary Supreme
Court opinions, one for and one against the proposition that reproductive
cloning (like contraception and abortion) falls within the supposed implied
constitutional right of "privacy" in the US Bill of Rights. Anyone
interested in *this* aspect of the US constitutional situation should start
with Sunstein's piece.
Any US journalist who wants a serious academic opinion on all this should
approach Sunstein (I assume he's still at the University of Chicago) and see
if he's prepared to comment.
Russell
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