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The Constitution Is Forgotten in the Stem-Cell Research Question

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Throughout the debate over embryonic stem-cell research, one thing was apparently never mentioned: the Constitution.

Keep in mind that President Bush was not deciding whether the research should be banned. He was deciding whether the federal government should compel the taxpayers to finance it. Thus the question is whether the government has the legal power to tax the American people in order to pay for this medical research. That is not simply an abstract political question. In America, we have a way to settle such questions. It’s called the Constitution. That document didn’t merely set up the machinery of government. It set limits on what the government may do. That’s what is meant by “a government of laws not men.”

As the Framers conceived the Constitution, the President should have scrutinized Article I, Section 8, the powers of Congress, to see whether it delegates the power to spend the taxpayers’ money on scientific research. An honest examination would have concluded that no such power is delegated. (It’s a short list. See for yourself.) In other words, the federal government has no authority to fund such research. End of subject. (If Congress has no power to do something, it also may not delegate that nonexistent power to the president.)

But that’s not how President Bush went about it. Instead, he ruminated on whether embryos are live human beings and whether using them for medical research constitutes murder or something equally abominable. He apparently consulted medical experts, religious authorities, philosophers, and people afflicted with diseases that might be cured with stem cells. But did he talk to any constitutional scholars? It’s unlikely.

The questions about what constitutes human life are fascinating. But they are irrelevant to the question before Mr. Bush. The taxpayers are assuredly actual human beings, and the issue is whether they should be taxed for this controversial medical research. If we are really committed to life and human rights, the answer is no.

Nothing gets more lip service and less attention than the Constitution. It’s far from perfect — it sanctions many violations of liberty — but at least it puts some limits on what the national government may do. Thus a commitment to observe the Constitution would protect liberty from overweening government.

But hardly anyone now sees the Constitution as a device for restricting government power. Today its only function is symbolic. Virtually everyone assumes that it embodies their personal preferences. If people like the idea of the federal government’s doing something, they assume the Constitution permits it. That’s not quite right — most people don’t know enough to even wonder whether the Constitution permits it.

Throughout the stem cell debate it has been taken for granted, even by conservatives, that the federal government has the authority to fund research as long as there is no moral objection to the research per se. The power issue is thus subordinated to the medical-ethical issue. It is assumed that if you approve of the research, you approve of the funding, and if you oppose the research, you oppose the funding. Conversely, if you oppose government funding, you must also oppose the research, even if it is done through entirely voluntary methods.

The political issue therefore gets washed away. Nothing could more gravely insult the Constitution and the founding principles of America. We were not supposed to have a government that can do anything the people or the people’s “representatives” feel like doing. That would be a government of men not laws.

James Madison, who knew a thing or two about the Constitution, said that the document set up a government whose powers were “few and defined.” To those who wished to interpret the “general welfare” clause as a grant of plenary power, he added that if that were correct, the Framers would not have included a list of specific powers in Article I, Section 8.

In other words, President Bush is following in the footsteps of every president in our memory. By the very method he used to make his decision, he has shown his contempt for the Constitution.

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    Sheldon Richman is vice president of The Future of Freedom Foundation and editor of FFF's monthly journal, Future of Freedom. For 15 years he was editor of The Freeman, published by the Foundation for Economic Education in Irvington, New York. He is the author of FFF's award-winning book Separating School & State: How to Liberate America's Families; Your Money or Your Life: Why We Must Abolish the Income Tax; and Tethered Citizens: Time to Repeal the Welfare State. Calling for the abolition, not the reform, of public schooling. Separating School & State has become a landmark book in both libertarian and educational circles. In his column in the Financial Times, Michael Prowse wrote: "I recommend a subversive tract, Separating School & State by Sheldon Richman of the Cato Institute, a Washington think tank... . I also think that Mr. Richman is right to fear that state education undermines personal responsibility..." Sheldon's articles on economic policy, education, civil liberties, American history, foreign policy, and the Middle East have appeared in the Washington Post, Wall Street Journal, American Scholar, Chicago Tribune, USA Today, Washington Times, The American Conservative, Insight, Cato Policy Report, Journal of Economic Development, The Freeman, The World & I, Reason, Washington Report on Middle East Affairs, Middle East Policy, Liberty magazine, and other publications. He is a contributor to the The Concise Encyclopedia of Economics. A former newspaper reporter and senior editor at the Cato Institute and the Institute for Humane Studies, Sheldon is a graduate of Temple University in Philadelphia. He blogs at Free Association. Send him e-mail.