Topic: Political Philosophy

Less Redress, More Grievances

The first bill proposed in the U.S. Senate in the new session of Congress attacks freedom of speech.

Some organizations use direct mail and other means to urge the public to contact members of Congress on a variety of issues. Currently some of those groups do not have to disclose those efforts to prompt public input.

Sen. Joseph Lieberman (I-CT) is not happy with such freedom from regulation. He has proposed that such organizations should be forced to disclose these efforts if they spend more than $25,000 a quarter and do not have a dues-paying membership (see S1, Sec. 220).

According to CQ Today, Lieberman’s spokeswomen said, “There’s nothing in this measure that will stop, deter or inhibit anyone from petitioning the government.” If that were true, no one in Congress would support Lieberman’s proposal. Congress passes restrictions on First Amendment rights primarily to discourage political activity, thereby increasing the discretion of a member while decreasing their accountability.

This particular measure imposes new costs on the groups who exercise their First Amendment rights. It will also expose the groups and their supporters to abuse and attacks in the political arena. Both costs increase the price of petitioning the government for redress of grievances and thereby reduce its likelihood.

Is Lieberman’s bill constitutional? The U.S. Supreme Court has said that mandatory disclosure of activities tied to First Amendment rights (like say, “the right to petition the government for redress of grievances”) may be justified to prevent corruption (or its appearance) and to inform the public better about candidates or legislation. The groups give money to the U.S. Post Office or other direct mailers, not to members of Congress or other policymakers. Hence, quid-pro-quo corruption is not at issue here. The groups are also informing the public about issues and urging them to contact Congress. How any of this constitutes the “appearance of corruption” is anyone’s guess.

I suspect the traditional justifications for mandatory disclosure do not matter much here. No one seriously believes these direct mail campaigns corrupt politics. Members of Congress no doubt believe that these direct mail groups have more influence than they should have. In particular, members of the new majority running the Senate may believe the direct mail efforts to foster contacts with Congress give “undue influence” to their conservative opponents. Hence, Sen. Lieberman comes up with a bill to throw some sand in the gears of the conservative political machine.

If you ever doubt why the First Amendment exists, consider this: the first thing mild-mannered Joe Lieberman did when a new majority took control of the Senate was to attack the constitutional rights of those who disagree with him.

Attention, Legal and Political Thinkers: A New Scholarly Resource

Rediscovering Bruno Leoni

There’s a new resource from Italy’s Instituto Bruno Leoni: a scholarly web resource on the ideas and work of the great legal scholar for whom the Institute is named, “Rediscovering Bruno Leoni.” It has both Italian and English versions and includes mp3 files of some of Leoni’s lectures.

Leoni showed a deep understanding of law and its relationship to voluntary social order. His work on the evolution of law greatly influenced F. A. Hayek and other writers who outlived him. In contrast to prevailing views, he argued that law is not simply an assertion of power, as the legal positivists insist, i.e., a set of “commands of a sovereign,” but traces back to the claims made by individuals and adjudicated through a complex process of interaction. As Leoni argued in “Law as Claim of the Individual,”

The legal process always traces back in the end to individual claim. Individuals make the law, insofar as they make successful claims. They not only make previsions and predictions, but try to have these predictions succeed by their own intervention in the process. Judges, juris-consults, and, above all, legislators are just individuals who find themselves in a particular position to influence the whole process through their own intervention.

The cases we bring to court and the cases we don’t all are part of the law-making process. The role played by elected legislators is important in the creation of a legal order, but it is almost always overrated. Most of the law that governs our everyday lives resulted from relatively decentralized common law (or Roman law) processes, and not from the “commands” of sovereigns.
Additional resources on Bruno Leoni (and on many hundreds of other deep thinkers) can be found at the extensive and brilliantly organized “Online Library of Liberty.”

Other writers with a similar appreciation of law as an evolved body of rules of just conduct include Lon Fuller of Harvard Law School (especially in his classic work The Morality of Law), F. A. Hayek (notably in Law, Legislation, and Liberty, Vol. I: Rules and Order; his classic 1945 American Economic Review essay on “The Use of Knowledge in Society” is must reading for understanding complex social processes, including the evolution of law), and Randy Barnett of Georgetown University, a Cato Institute senior fellow and author of Restoring the Lost Constitution: The Presumption of Liberty and The Structure of Liberty: Justice and the Rule of Law.
So, budding law students and political scientists. Have at it!

Cloned Food 101

The FDA’s Center for Veterinary Medicine recently issued three documents related to cloned foods:

  • “Animal Cloning: A Draft Risk Assessment”
  • “Animal Cloning: Proposed Risk Management Plan for Clones and Their Progeny”
  • “Guideline No. 179: Guidance for Industry Use of Edible Products from Animal Clones or Their Progeny for Human Food or Animal Feed” 

These are drafts open for comment until April 2, 2007.

The FDA concluded that, while there were little data, the data available indicated that “SCNT [somatic cell nuclear transfer, i.e., cloning] results in an increased frequency of health risks to animals involved in the cloning process, but these do not differ qualitatively from those observed in other ARTs [Assisted Reproductive Technologies] or natural breeding.” Furthermore, “[e]xtensive evaluation of the available data has not identified any food consumption risks or subtle hazards in healthy clones of cattle, swine, or goats.” 

In short, unless the comments provided within the next three months indicate otherwise, food from cloned animals will be on the market in about a year and require no additional labeling to distinguish it from food products from non-cloned animals.

Keeping the Facts Straight   Most objections to “cloned foods” stem from a misunderstanding of the technology and its ramifications:

  • First, not the food, but the animal used to produce the food is what is cloned.  Potentially, the actual clone could be used as food but, since it costs $15,000 to $20,000 to produce a clone, it is usually only the clone’s milk or offspring that are intended for the food market.
  • Cloning is not a form of genetic engineering. The DNA provided by the animal being cloned is not altered. Cloning is a form of assisted reproduction that creates an identical twin at a later time. Any accidental alteration of the DNA results in death of the clone usually in the lab, but occasionally one survives through gestation and birth, but not beyond the perinatal period. Thus, all clones that have the potential of entering the food supply or of being bred are genetically identical to the animal that was cloned.
  • Food from clones poses no more risk to the consumer than the animal being cloned. The susceptibility to disease or other conditions that may disqualify clones from food production is no greater than that of the original animal. Thus, the fact that an animal is a clone poses no unique risk to the food supply.
  • The first sheep (Dolly) was cloned in 1996. The first cow was cloned in 1998 and the first pig in 2000.
  • In 2001, the FDA decided to study the issue of food from cloned animals and asked the food industry not to introduce any food produced by clones or their progeny into the market. The FDA’s notice of publication that accompanies the afore-mentioned drafts requests that this “voluntary moratorium” continue.
  • It is possible that some cloned animals or their progeny have already entered the food supply, but there is no definitive evidence that this has happened.
  • The FDA has asked for a “voluntary” moratorium because, under current law, the agency probably doesn’t have the authority to ban foods made from clones. Unless Congress amends the Federal Food, Drug, and Cosmetic Act (FFDCA), this will continue to be the case regardless of what the FDA decides when it publishes its final rule.
  • The milk and beef from cloned cows is indistinguishable from that produced by other cows. It’s not adulterated; there are no additives. The following is an oversimplified description of federal law,  but should shed some light on why the FDA is proceeding as it is. Basically, federal law (the FFDCA) presumes that unadulterated food is safe. The FDA has the authority to regulate the use of additives and to require accuracy in labeling. Labeling may be regulated to assure that the identity of the food is correctly represented (margarine is not butter) and that potentially harmful additives or allergens are indicated on the label. Food from cloned animals simply does not differ from regular food in any manner that justifies regulation under the FFDCA.
  • It is time to give some clarification regarding the phrase “genetic engineering.” Genetically engineered animals have been genetically altered, not just reproduced. Under a broad definition of “genetic engineering”, all animal husbandry that involves changing the genetic makeup from one generation to the next involves genetic engineering. In this sense, each time a breeder chooses a mate for an animal, he is engaged in genetic engineering. This type of genetic engineering actually takes place through selective reproduction. A newer type of genetic engineering, which is what most people mean when they use the term, refers to genetic alterations made by man not through selective breeding but through selecting the actual specific genes that will be combined. This can also involve taking out or adding genetic material, including the addition of genetic materials from different breeds, species, phyla, or even kingdoms. The resulting animal or plant is called “transgenic” if foreign DNA is integrated into the genome.
  • There are over a billion acres of land, most of it in the United States, planted with strains of transgenic crops. These crops, for the most part, are corn, soybeans and cotton.
  • At this time, there is only one transgenic fish approved for sale in the United States, and it is an aquarium fish, not for human consumption. There is, however, a petition pending with the FDA to approve a transgenic salmon, and it will be labeled as such if it is approved.
  • The Center for Food Safety and several other consumer groups have filed a Citizen Petition with the FDA encouraging the agency to regulate cloned foods as new animal drugs. Under the FFDCA, drugs require pre-approval for safety and efficacy before being marketed. This is quite a stretch. The relevant part of the FFDCA definition of a “drug” according to the petition is “any articles (other than food) intended to affect the structure or any function of the body of man or other animals.” It is further worth noting that genetically modified foods, including transgenic animals, require pre-market approval by the FDA because they are considered as containing “food additives.” This actually makes some definitional sense since genetic material is added or changed to create a genetically modified plant or animal. But, this same logic does not hold for cloning.

The conclusion I draw from these facts is that the FDA should not be involved at all in regulating food from clones or their progeny. Under existing law, the FDA doesn’t have the authority to regulate food from clones even if there were a safety issue. 

Regarding labeling — that issue will take care of itself without FDA interference. If there is enough public concern that food produced from clones or their progeny is unsafe, then producers of organic foods will start specifying “Not from cloned animals” on their labels in the same way they have advertised “Not from animals treated with hormones or antibiotics.” 

The Center for Food Safety claims that “63% of Americans would not buy cloned food, even if FDA deemed the products safe.” They present these data from a 2005 poll as an argument for regulation. I think such poll results only justify purchasing stock in organic food companies that promise not to sell products from cloned animals — but not government intervention.

Ethical Considerations   The ethical concerns addressed here are primarily moral considerations that legitimately could influence actions taken by individual breeders, producers, and consumers, but not legitimately be used to argue for government intervention. Even the FDA agrees with this point. In its proposed risk management plan, the agency states: “The Draft Risk Assessment is strictly a science-based evaluation of animal health and food consumption risks, and the Proposed Risk Management Plan and Draft Guidance for Industry do not address any ethical or other non-science based concerns regarding animal cloning.”

Most ethical objections to cloning and genetic engineering in general come from a fear of the unknown consequences of such technology, a religious or moral objection to tampering with natural reproduction, and/or a concern for preventing cruelty to animals. While all these concerns hold legitimate moral sway with various portions of the population, they are not grounds for government action. We live in a pluralist society and those who disagree on religious or moral grounds with cloning should be free to speak out, boycott, or not participate in the objectionable activity, but those who do not object should be equally free to participate in producing food from clones and/or eating it.

The one legitimate concern I see with cloning is one almost as old as animal husbandry itself. By its very nature, manipulating a gene pool to create certain desired phenotypes creates a homogeneity that can put the whole group at risk. As a 25-year veteran breeder of rare breed dogs and cats, I know first-hand that breeders often attempt to ferment type at the expense of health. A lack of genetic diversity in purebred animals caused by too much inbreeding makes those animals more susceptible to disease, shorter-lived, and more prone to unhealthy offspring. Domestically bred animals loose their genetic resilience when intentional line-breeding or the overuse of certain choice animals makes it difficult to find animals that aren’t related. 

To prevent such homogeneity, some breeders feel it is their moral obligation not to flood the gene pool with one particular genotype. They do this by not breeding two animals related more closely than five generations back or by not breeding their pride stud more than four times a year. Such ethical standards are usually set by individual breeders or private breed associations. Cloning itself is not inbreeding but it can result in flooding a gene pool; for example, there are reports of a farmer who has cloned his prize bull five times already. Now an animal whose genetic material would appear in X number of offspring, will in fact appear in X6 number of offspring. In this way, cloning can over-saturate a gene pool with a particular animal’s genes, making the group more susceptible to intentional or accidental inbreeding and, in turn, genetically weaken the group as a whole. 

Like cloning, genetic engineering could be used to create consistency within a breed, but it also could be used to create diversity. Genetic engineering could help eliminate genetically linked diseases, even those in rather homogeneous groups. It could also be used to create more diversity in ways that help preserve the desired traits without creating too much homogeneity. 

Also, while individual breeds within a species become more homogeneous, genetic engineering could help the number of breeds proliferate — just look at the number of dog, cat, and bovine breeds that exist today. It certainly would be disappointing for those who like the taste of a particular kind of beef to learn that the breed of cattle that produces that beef is failing in part because of too much cloning, but that would not mean the end of all beef or all bovines. It would simply mean regenerating the breed either from a survivor, hopefully genetically engineering out the flaw that caused problems, or altering another breed to have the characteristics that were prized in the breed that failed. 

None of the ethical issues presented by cloning food-producing animals are new. Cloning and genetic engineering only provide new and more effective methods of doing what humans have been doing for millennia  — that is, manipulating the genetic makeup of plants and animals to create better food. Put another way, humans have been tampering with nature, playing God with the creation of animals, and eating their creations for thousands of years. The only thing that has changed is the technology. The goals and the ethical problems inherent in those goals remain the same. And, as is usually the case, the very technology that poses potential problems, undoubtedly also holds the solution to those problems should they arise.

Seventh (Grade) Sense

My young colleague Jessie Creel has an even younger sister, Mary, who sounds like a future libertarian debater. Jessie tells me that a speaker from Fannie Mae recently visited Mary’s 7th-grade class at a Maryland Catholic school to discuss poverty. The speaker said, “I love my job because I make money helping people.” And Mary raised her hand and said, “What job doesn’t help people?”

Sounds like a natural economist.

That Other Lesson We’re Not Learning from Iraq

In the wake of last November’s election, there has been talk of a paradigm shift in American politics and a new public interest in “progressive ideas.” I’m not sure that a one-Senate-seat legislative advantage marks a “shift,” but there certainly is much chest-thumping on the left, and intense rallying on the right.

Both edges of the political spectrum are promising their adherents that they will redouble their efforts to molding the nation according to their “ideals.” Imagine: our decisions about our persons, our relationships, our children and their education, our health, our property, our political activity, our activities in the marketplace, etc., will be pushed toward even greater conformity with the preferences of Washington politicians. Meanwhile, those individuals with different preferences will suffer the eternal hostility of a Nancy Pelosi or a Trent Lott or a John McCain.

Doesn’t this sound just a bit (a nonviolent bit, yes, but still a bit) like the Sunni, Shia, and Kurds in Iraq? Why would we want to follow that model, and further erode the individual liberty model that once served us so well?

If you haven’t already done so, be sure to read the Cato’s Letter abridged version of George Will’s remarks from last summer’s Friedman Prize dinner. One section is especially on point:

You go to spring training, and a baseball manager will tell you that his team is just two players away from the World Series. Unfortunately, they are Ruth and Gehrig.

Iraq is just four people away from paradise. They need a George Washington, a charismatic, iconic, talismanic figure, a symbol of national unity, above politics. They need an Alexander Hamilton, who could create a modern economy out of human dust. They need a James Madison, a genius of constitutional architecture, for getting factions to live together. And they need a John Marshall, a great jurist, to breathe life into a parchment. They need that and they need the astonishing social soil of the second half of the 18th century, from which such people sprank with profusion.

Which is to say that they’re not close.

And, it seems, we’re drifting further and further away, ourselves.

Gerson’s “Vision Thing”

How can the G.O.P. get its groove back?  Michael Gerson, former speechwriter and top policy advisor to President Bush, has an idea: purge the small-government conservatives.  As he puts it in the current issue of Newsweek, “any political movement that elevates abstract antigovernment ideology above human needs is hardly conservative, and unlikely to win.” 

As Justin Logan has pointed out in this space before, Gerson finds the “small government” aspect of conservatism “morally empty.”  Gerson expands on that theme here:

As antigovernment conservatives seek to purify the Republican Party, it is reasonable to ask if the purest among them are conservatives at all. The combination of disdain for government, a reflexive preference for markets and an unbalanced emphasis on individual choice is usually called libertarianism. The old conservatives had some concerns about that creed, which Russell Kirk called “an ideology of universal selfishness.” Conservatives have generally taught that the health of society is determined by the health of institutions: families, neighborhoods, schools, congregations. Unfettered individualism can loosen those bonds, while government can act to strengthen them. By this standard, good public policies—from incentives to charitable giving, to imposing minimal standards on inner-city schools—are not apostasy; they are a thoroughly orthodox, conservative commitment to the common good.

Campaigning on the size of government in 2008, while opponents talk about health care, education and poverty, will seem, and be, procedural, small-minded, cold and uninspired. The moral stakes are even higher. What does antigovernment conservatism offer to inner-city neighborhoods where violence is common and families are rare? Nothing. What achievement would it contribute to racial healing and the unity of our country? No achievement at all. Anti-government conservatism turns out to be a strange kind of idealism—an idealism that strangles mercy.

A speechwriter’s job is to make the president talk pretty; it’s generally a bad idea to give him a policymaking role.  Yet Gerson had one in the Bush White House.  “He might have had more influence than any White House staffer who wasn’t chief of staff or national security adviser,” according to Bill Kristol.  As the Washington Post reported upon Gerson’s departure last summer: 

He was a formulator of the Bush doctrine making the spread of democracy the fundamental goal of U.S. foreign policy, a policy hailed as revolutionary by some and criticized as unrealistic by others. He led a personal crusade to make unprecedented multibillion-dollar investments in fighting AIDS, malaria and poverty around the globe. He became one of the few voices pressing for a more aggressive policy to stop genocide in Darfur, even as critics complained of U.S. inaction.

This is the Gerson vision: armed uplift abroad, compassionate statism at home, and boundless generosity with other people’s blood and treasure.  If you think the problem with American foreign policy is that it hasn’t been ambitious enough in the last five years, if you think the problem with the Great Society was that there wasn’t enough hymn-singing, then it may be for you.  But for those of us who favor limited, constitutional government, Gerson’s views are instructive.  That a man with such contempt for small-government conservatives had the ear of the president explains a lot about the wreckage that surrounds us.