The Vetting: Obama Teaches Constitutional Law – Part III

The Vetting: Obama Teaches Constitutional Law – Part III

Back when President Obama was lecturer Obama at the University of Chicago Law School, he gave final exams in constitutional law. We’ve already explored his questions and recommended answers from his first year, 1996, here and here.

Now it’s time to move on to lecturer Obama’s final from 1997. Once again, constitutional law exams work in a very specific way: the teacher presents an “issue-spotting” question, in which students are asked to provide analysis of a set of facts; the teacher then provides sample answers, so students know if they covered the issues.

Here’s the first question from Obama’s 1997 exam.

The situation is a cross between Dolly the Sheep and Terri Schiavo. Essentially, many years in the future, there’s a young woman, Dolly. After a car accident, Dolly enters into a severe vegetative state with no possibility of recovery. Her parents, Mary and Joseph (you have to love the carefully chosen anti-religious implications here), whom she has given joint authority over her in a living will, decide to pull the plug. They also decide that they want to clone her. The problem is that the state has passed a law against cloning. The second problem is that other states that allow cloning require consent of the cloning subject, unless the subject is a terminally ill child – and it’s unclear whether Dolly gave her consent, though she had no moral objections to cloning.

This presents a question: is there a constitutional right to cloning?

Here the analysis of Obama’s suggested answer:

  • First, Obama suggests that there is a fundamental constitutional right to clone oneself. The precedent cases “all argue for a broad reading of the right at stake: a right to make decisions regarding childbearing free from government interference–at least absent a government showing that such interference is narrowly tailored to serve a compelling government interest.” Obama calls Justice Scalia’s argument that constitutional rights must be “deeply rooted in the Nation’s history and traditions” a “cramped reading of the right to privacy.”
  • Obama says that the case for Mary and Joseph being able to clone Dolly is a simple one: “Mary and Joseph’s claim of a ‘right to procreate’ through cloning is even more persuasive than Dolly’s since a) any cloned child would in fact be a product of Mary and Joseph’s genetic mixture; b) Mary and Joseph might have no other means of bearing a child genetically related to both of them; and c) the cloned embryo would be implanted in Mary’s womb and Mary would carry it to term like any traditional pregnancy.”
  • Obama next examines the state’s interests in preventing cloning. He rejects nearly all of them, but focuses in particular on the state’s interest in “preserving the sanctity of life/family bonds.” The state, says Obama, probably doesn’t have a “compelling interest in preventing what it considers to be the ‘devaluation’ of human life that might result from cloning.” As to the family, Obama states, the state has no ability to restrict “an individual’s fundamental right to bear children or form a family solely on the basis of the state’s abstract judgment of what a family should look like.” The case law may support the first proposition in this sentence – that who bears children is not up to the state. But the second proposition – that forming a family is also not up to the state – is an early argument for gay marriage, which Obama surely realized.
  • Obama’s final conclusion: “to the extent that the Court is forced to grapple with such weighty issues, it might prefer to do so in the context of deciding whether cloning is or is not a fundamental right, rather than establish the troubling precedent that the state’s moral judgments, standing alone, can override an individual’s fundamental rights or liberty interests.” Obama, of course, has no such qualms about the state’s moral judgments with regard to birth control and forcing churches to provide it – but he doesn’t want the state that use “morality” as a measure in preventing controversial procedures like cloning.

So here’s what we’ve learned: Obama believes that the right to privacy should encompass everything up to and including cloning; he thinks that religious morality must be struck down by courts when implemented in law, even though it is supported by thousands of years of tradition; he believes that the state has no interest in family formation; he wants the state to implement morality only when it is his morality.

More to come …


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