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Fair-Weather Federalism?

In supporting legislation banning cloning, President George W. Bush is being true to his moral principles. 

Oh, there's room to argue: In the White House's renaming of therapeutic cloning as "research cloning," I smell a focus group. But Bush apparently feels that cloning violates his moral principles, even if — as Nick Schulz has pointed out — the White House has tried to blur the pro-life character of his stance.

Unfortunately, the president's moral principles are in this instance clashing with his professed constitutional principles — and the Constitution has lost. 

Bush ran as a federalist, a respecter of the principles of limited government and enumerated powers that the Framers of our Constitution believed in. But in supporting federal legislation to ban cloning — even therapeutic cloning — Bush is revealing himself as a fair-weather federalist. Coupled with his recent decision to sign campaign finance "reform" legislation despite earlier statements that he regarded it as unconstitutional, this action is endangering Bush's trustworthiness on the very constitutional principles that got him elected.

As President Bush himself said when he declared Constitution Week on last Sept. 17: Our Republic would surely founder but for the faith and confidence that we collectively place in our Constitution. And it could not prosper without our diligent commitment to upholding the Constitution's original words and implementing its founding principles. 

Among those principles, he acknowledged, was "the important and enduring constitutional principle of enumerated powers."

The principle of enumerated powers, which is a bedrock of federalism, recognizes that the federal government is not empowered to pass laws on every subject that may interest politicians. 

As James Madison wrote, "[t]he powers delegated by the proposed Constitution to the federal government are few and defined." A review of the Constitution will demonstrate this to be the case. It will also demonstrate that the power to regulate cloning is not among them.

The legislative powers are found in Article I, Section 8 of the Constitution. Here Congress is empowered to do such things as borrow money, coin money, punish counterfeiters, declare war, make rules for bankruptcies, and establish post offices and post roads. None of these have anything to do with cloning.

One provision does relate to science: the provision authorizing Congress "to promote the progress of science and the useful arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective writings and discoveries." But this grants only the power to promote science, not to outlaw it, and the only congressional action authorized is the creation of patents and copyrights.

We are left with the last resort of politicians seeking to increase federal power, the Commerce Clause, which authorizes Congress "to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes."

As recently as ten years ago, the argument that the Commerce Clause would authorize a ban on cloning as a regulation of commerce "among the several states" would have had some force — since at the time, the Commerce Clause was seen by most as authorizing Congress to do pretty much anything it chose. Even then, however, many federalists and some Republican officials were criticizing such a reading as far too broad.

Since then the Supreme Court has agreed, holding repeatedly that Congress' power under the Commerce Clause extends only to, well, the regulation of commerce.

In the 1995 case of United States v. Lopez, the court opened its analysis with words that Bush — and some Republican lawmakers in Congress — would do well to consider: We start with first principles. The Constitution creates a Federal Government of enumerated powers ... As James Madison wrote, '[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.'

Referring to the Federalist No. 45, the court also said: This constitutionally mandated division of authority 'was adopted by the Framers to ensure protection of our fundamental liberties.' ... Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front ... 

So is the regulation of scientific research the regulation of "commerce among the several states?" It's hard to see how.

Scientific research isn't commerce. It's true that scientists are paid salaries, and that they then spend their money buying things that may travel across state lines. It's even true that scientific laboratories often use equipment and supplies that cross state lines. Nonetheless, in regulating what subjects scientists may research Congress isn't regulating commerce — it's regulating science. Any incidental effect on commerce is just that: incidental.

The Supreme Court has made clear in Lopez and the cases following it that you can't turn just any conduct into interstate commerce merely by finding incidental effects. But even if, as is always possible, a gullible court could be persuaded to uphold a law against cloning as something within congressional power, that hardly gets Bush and his fellow Republicans off the hook.

Bush — and the Republicans generally — ran as federalists, and as believers in limited government. They ran on a platform of staying within constitutional limits that they recognized, not on a platform of expanding government power as far as the courts would allow.

When the next election comes, people will be asking Bush, and other Republican office holders, whether they've been true to their principles, or whether they're just fair-weather federalists. At the moment, things aren't looking very good.

Glenn Harlan Reynolds is a law professor at the University of Tennessee and publishes InstaPundit.Com. He is co-author, with Peter W. Morgan, of The Appearance of Impropriety: How the Ethics Wars Have Undermined American Government, Business, and Society (The Free Press, 1997).

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