Strengthening Constitutional Self-Government

No Left Turns

Response to Professor Volokh I

Eugene Volokh of the Volokh Conspiracy offers several thoughtful critiques ( here, and here, and yet again here) of the article Nathaniel Stewart and I wrote for NRO. I shall attempt to address his concerns in turn.

Starting with his latest post, Professor Volokh argues that patent restrictions would not achieve the regulatory goals of the authors (restricting cloning and macabre embryonic research) because, essentially, there are a lot of rich people in America. Even if contributions are not tax-exempt, Volokh argues:

“If you have some form of disease in your family, and you have a multi-million dollar fortune, and cloning or embryonic research seems to offer some serious potential benefit, you may be perfectly happy to spare some tens of millions to fund this research.”

While the private market will undoubtedly rise to almost any occasion, I’m not convinced that Volokh’s private funding argument by itself carries the day. First, to the extent that I can convince Professor Volokh to assume for the sake of argument that such technology is contrary to good public policy, his argument would suggest that we must sacrifice the good on the altar of the perfect. Professor Volokh undoubtedly agrees that the federal government has limited regulatory authority. If the best Congress can constitutionally do is to provide disincentives that will address many but not all cases, should it do so? My sense is that if the regulatory end is legitimate, then yes. Far better this than to pass regulations which are beyond the bounds of regulatory authority. Furthermore, these laws could be supplemented by regulations promulgated by entities not so limited in power—namely the states.

Second, even conceding that there are a lot of rich people, the financial curve on such an endeavor would be steep. In addition to having no protected patent right in the new technology, and in addition to not receiving a tax benefit (i.e., a disincentive) for contributions to the researchers, the would-be philanthropist would literally need to start from scratch. That is, if Congress were to use its power recognized by the Supreme Court under the spending clause to restrict any medical facility that receives federal funds from taking any part in this kind of research, then they could not simply endow a wing at MassGeneral to perform this research. Thus, they would not only need to pay for the doctors, but they would need to build the facilities, and to purchase the equipment. This is not to say that it would be impossible, but even “tens of millions” of dollars is likely too conservative to be a realistic estimate.

While clearly not endorsing such regulation, Professor Volokh later repeats this futility theme in saying that for those who view cloning as “evil,” the patent regulations seem like a “pretty feeble step in the battle against evil.” Yet Volokh appears to believe that any regulation in this area is futile, for he concedes that a ban would do little more than affect incentives:

If Japan or Europe allow patents for human cloning, then the proposal in the NRO would at most diminish the incentive for cloning (though of course broader bans would be limited this way, too).

Again, when combined with spending and tax exemption restrictions, I’m not sure how feeble such regulations would be (Title VI and IX have been reported to have some teeth), and I’m again not convinced that the perfect must be the enemy of the good.

Finally, Volokh takes to task our supposition that America should lead on this issue, suggesting that other countries will go ahead and perform the research anyway. As an initial matter, I shall assume that Volokh is not arguing from Justice Breyer’s position as articulated on This Week, i.e., that American law and constitutionalism should be somehow conform to the ebbs and flows of international law. Thus, it seems that Volokh’s argument is that we should not regulate because our regulation won’t change conditions outside the U.S. But the general rule is that US regulation is not extraterritorial (except in the extraordinary categories of federally controlled land, such as military bases). If other countries wish to perform experiments of which the United States does not approve, we can’t directly regulate them. Does this suggest that we must follow them? If a country—let’s call it Germany—chooses to, say, experiment on twins, that doesn’t mean that we should do so also. (Anticipating Volokh’s rebuttal that such a comparison is inapplicable because one involves entities with rights that no one disputes (now), while the other involves entities whose rights and status are disputed, one need not even adopt an expansive view of the rights or humanity of embryos or fetuses for such comparisons to have strength. Within the realm of cloning, for instance, the mammals that have been cloned have died sooner and been subject to rare diseases. Thus, even a theory of utilitarianism which does not permit the infliction of undue injury or death to a party for the greater potential benefit of third parties would suffice to complete the analogy.)

Furthermore, the argument that the parties will simply import the technology to the U.S. fails to take into account that the U.S.-based scientists would still have the tax-exemption and spending clause limitations binding their research. A clone may enter the U.S., but the technology--unless totally privately funded by an entity which has followed Hillsdale and refused all public funding—cannot be researched or developed here.

My co-author will soon address man and god in cloning. This short blog does not address the full complexity of the debate, but I hope that it suffices to provide some response to Eugene’s thoughtful postings.

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