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 decisions about what activity should be 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.
In 1994, many conservatives opposed the passage of the Violence Against Women Act because they said it infringed on 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.
But cloning is both an economic activity and a family-related issue. In this case, the lines the court has drawn make no sense.
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.
Congress can use lawyers' tricks to get around these new 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.
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. *
Jack M. Balkin is a professor of law at Yale. This first appeared in the New York Times.