Apppendix lll-B— Constitutional Constraints on Regulation • 321 
u hat is a i-om[)elling reason. I he [)rotection of health 
oi- the em ironment is the most clearlv acceptable 
reason tor regulation. In aclditiott. the protection of 
incli\ idual rights and [tersonal dignity is generally 
consiilered an acceptable reason, f^.g.. the National 
Research Act* re(|uires that all biomedical and be- 
havioral researih iiuohing human subjects sup- 
[)orteil under the Public Health Service .Act he re- 
viewed In an Institutional Review Board in order to 
[)rotect the rights and w elfare of the subjects. 
rhe alKJve discussion relates to protection from 
physical risks due to the process of research. Could 
the (k)vernment regulate or forbid e.xperimentation 
solely because the product (knowledge) threatens 
cultural V alues or other intangibles such as the genet- 
ic inheritance of mankind? Religious or philosophical 
objections to research, based solely on the rationale 
that there are some things mankind should not 
know, contlict with the basic principles of freedom 
of e.xpression and would not he sufficient reason on 
constitutional grounds to justify regulation. Even if 
the rationale underlying this objection were e.xpand- 
ed to include situations w here know ledge threatens 
fundamental cultural values about the nature of 
man. control of research for such a reason probably 
would not be constitutionally permissible. The ra- 
tionale w ould again conflict w ith the marketplace of 
ideas concept that is central to freedom of e.xpres- 
sion. However, w hat if the knowledge were to pro- 
vide the means to alter the human species in such a 
way that the physical, psychological, and emotional 
essence of what it is to be human could be changed? 
No precedent exists to prov ide guidance in determin- 
ing an answer. Were the situation to arise, the 
Supreme Court might fashion another limitation on 
the concept of free e.xpression in the same way it 
developed the obscenity or "fighting words" doc- 
trines. 
The discussion thus far has had as its premise a 
direct regulator} approach to research. There is a 
more indirect approach, which would be constitu- 
tionally permissible and could accomplish much of 
w hat direct regulation might attempt, including pre- 
vention of the acquisition of some forms of knowl- 
edge. This is the use of the funding power. The 
lifeblood of modern science in the United States is 
the Federal grant system. Yet it is generally agreed 
that Government has no constitutional duty to fund 
scientific research.® This is a benefit voluntarilv pro- 
vided to which many kinds of conditions may be at- 
tached. The only consitutional limitation on such an 
approach would be the concept of equal protection— 
any restrictions must apply to aU or must not be ap- 
■ Public Law 93-J48 (1974), 42 U.S.C. §289 1-3. 
•Green, op. dt. p. 141. 
plied in a discriminatory way without compelling 
reasons. 
Congress could therefore, mandate by law that 
certain kinds of research not be funded or be con- 
ducted in certain ways. .An example is the National 
Research Act, discussed previously. However, this 
approach may have some serious practical limita- 
tions because of the difficulty of determining which 
molecular biological research might lead to the pro- 
scribed knowledge. Much discretion would have to 
be left to the funding agency, which is likely to be un- 
sympathetic or even hostile to such an approach, if it 
V iews its primary mission as fostering research. 
Applications and products 
.Although fears have been expressed that current 
genetic technologies may lead to applications that 
would be detrimental, no one can reasonably con- 
clude, at the present time, that this will actually oc- 
cur. For this reason, the most constitutionally per- 
missible approach in all probability will be to regu- 
late the applications of the science. In such situa- 
tions, whatever harms occur tend to be more tangi- 
ble and the governmental interests, therefore, more 
clearly defined. Moreover, since fundamental con- 
stitutional rights are generally not involved, statutes 
and regulations are subjected to a lower level of 
scrutiny by the Federal courts. 
The constitutional authority for Federal regulation 
of the applications of technologies such as genetic en- 
gineering lies in the commerce clause, article I, sec- 
tion 8 of the Constitution, which grants Congress the 
power 'To Regulate Commerce wath foreign Nations, 
and among the Several States.” In contrast to sit- 
uations involving fundamental rights, the Supreme 
Court has interpreted this clause as ghing Congress 
extremely broad authority to regulate any activity in 
any way connected with commerce. It has been vir- 
tually impossible for Congress not to find some con- 
nection acceptable to the courts between commerce 
and the goals of a particular piece of legislation. * The 
standard of review of such legislation by the Federal 
courts is to determine if it bears a rational re- 
lationship to a valid legislative purpose. If so, the 
Court vv'ill uphold the legislation and will not second 
guess the legislators. This standard of review rec- 
ognizes that a statute results from the balancing of 
competing interests and policies by the branch of 
Gov'ernment created to function in that manner. 
*See Wickard v. Filbum, 3l7 U.S. Ill 0942) in which the Supreme Court up- 
held civil penalties for violation of acreage allotments established by the 
.Agricultural .Adjustment .Act of 1938, covering the amount of wheat that in- 
dividual farmers could plant, even if the wheat was intended for self-con- 
sumption. The rationale was that even though the indit idual farmer s wheat 
had no measurable impact on interstate commerce. Congress could prop- 
erly determine that all wheat of this category, if exempted from regulation, 
could undercut the purpose of the .Act, which was to increase the price 
farmers received for their various crops. 
