Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Tuesday, April 30, 2002
Glenn Reynolds of Instapundit points out again that The Constitution doesn't give Congress the authority to ban cloning. I'm not sure he's right that to do so would involve an over-broad reading of the commerce clause. In general, economic activity that isn't exclusively local gets wrapped up in said clause. The high-profile cases where Congressional legislation didn't meet this test weren't economic at all - e.g. the law that banned guns on school grounds. Research cloning would be undertaken by laboratories funded by pharmaceutical and biotech companies, for the purpose of obtaining patents for products traded in interstate commerce. It's hard to see how you could strike down a cloning ban without threatening a whole host of established regulatory authorities. For example, OSHA regulates laboratories. Why can OSHA do that if labs aren't engaged in interstate commerce? Anyone think the Court is going to declare OSHA unconstitutional? And how about the 1964 Civil Rights Act, also based on commerce clause reasoning, and also applied to laboratories. Anyone see it being struck down soon? Frankly, I suspect Bush could ban cloning on administrative rule basis, arguing that if any cloning is allowed then a ban on reproductive cloning is unenforceable, and that reproductive cloning is a dangerous medical practice, the sort of thing Federal agencies routinely regulate.

But there's a more radical grounds for Congressional action on cloning: the 13th Amendment. You know, the one banning slavery, the ownership of a human being. I think a perfectly reasonable argument could be made that Congress does have the authority to define a human being. (The Supreme Court has already made it clear that they think that they do, per Roe v. Wade. Why does Congress have less authority than the Supremes? At least they are elected.) But of course, if Congress were to do that, it would raise the implication that the 14th Amendment might apply to unborn people, effectively imposing a ban on abortion, etc. etc. That isn't going to happen. But even if it doesn't, I'm not so sure the Court is going to rule that Congress has no legitimate say in defining what is or isn't human, and what the scope is of the state's interest in protecting humans from enslavement. Those enabling legislation clauses at the end of the civil war amendments are pretty broad.