This op-ed originally appeared in the New York Times, January 30, 2002.
The Cloning Connundrum
by Jack M. Balkin
NEW HAVEN -- Human cloning and hate crimes would seem to have little in common. But in a series of shortsighted decisions on the constitutional limits of Congressional power, the United States Supreme Court has managed to create legal precedents that may make it difficult for the federal government to ban cloning as well as hate crimes. This will no doubt come as a surprise to opponents of abortion, who oppose cloning on a moral basis and have been eager to outlaw it.
Since the New Deal, Congress has been free to regulate any activity so long as it had substantial effects on interstate commerce. In the last decade, however, the five-person conservative majority on the Rehnquist court has created a set of federalism doctrines forbidding Congress from regulating what the court calls "noneconomic" activities. In order to preserve the boundary between what is national and local, the court insists, Congress must keep its hands off "traditional" local subjects like crime and the family.
Thus in 1995 the court said that Congress could not prohibit guns in or near elementary and secondary schools, because this usurped local authority to make decisions about what activity should be made criminal. It also struck down a federal law that let women sue their attackers in federal court. Violence against women isn't economic, the court said; it's about crime and families. The new states' rights doctrines would also undermine any future Congressional effort to pass hate-crime legislation. Although hate crimes, like domestic violence, clearly have an economic impact, under the court's logic they are defined simply as assaults.
In 1994, many conservatives opposed the passage of the Violence Against Women Act because they said it infringed upon states' rights; today many make the same argument against federal efforts to outlaw other hate crimes or to regulate guns. They have cheered the Supreme Court's defense of state prerogatives. Now the tables are turned. Conservatives who decry the use of cloning to make humans want the federal government to make the practice criminal; last year, the House passed a ban on cloning for any reason, including for new medical therapies.
But cloning is both an economic activity and a family-related issue. In this case, the lines the court has drawn make no sense.
In the 2000 campaign, President Bush said he admired conservative stalwarts like Justice Antonin Scalia and Justice Clarence Thomas, who have championed the new restrictions on Congressional power. Now he may understand the pitfalls of getting what you wish for.
This result is hardly surprising. Support for states' rights has often been opportunistic, driven by substantive goals like the defense of slavery or opposition to women's suffrage, economic regulation or civil rights. The standard defense of federalism is that it preserves liberty. But the real issue is what sort of liberty we are trying to protect. For years liberals have pointed out that the liberty to lynch people wasn't worth preserving. Now conservatives may conclude the same thing about the liberty to clone. And if a single state say Oregon explicitly permits cloning, they may find the old arguments for decentralization ring hollow.
Congress can use lawyers' tricks to get around these new federalism doctrines. It can withhold federal funds from hospitals that perform cloning, or require proof that the doctors or the tools they use have moved in interstate commerce. And it's entirely possible that the Supreme Court will say that cloning is just different and uphold a direct criminal prohibition. But if it does so, it won't be because of a principled commitment to federalism. It will be because the justices wanted a certain political result and stretched the law to get there, as they did in Bush v. Gore.
But there should be no need for Congress to jump through legalistic
hoops or for the court to engage in doctrinal duplicity. Cloning is
an issue of national concern, meriting a national debate. It is
irrelevant whether it can be classified as "economic" or
"noneconomic." The Supreme Court should scrap its
ill-considered doctrines and recognize that the national government
has the power to make all laws that it considers to be in the
national interest. Then we can focus on the real question of our
moral responsibilities in a new and difficult age of scientific achievement.
Jack M. Balkin is a professor at Yale Law School and author, most recently, of "What Brown v. Board of Education Should Have Said."