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The Three Clauses that Ate the Federal Constitution and Other Constitutional Concerns

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Carroll Robinson and Michael Adams
March 7, 2017

The old argument is Section 8 of Article I of the United States Constitution and The Bill of Rights created a federal government of enumerated and limited power.

The fact, however, is that structure and limitation no longer really exists.

Based on Supreme Court decisions, three clauses have eaten the Constitution as originally conceived and structured: the Taxation Clause, the Commerce Clause and the Necessary and Proper Clause.

Beyond the court’s protection of fundamental rights and its Equal Protection and “First Principal” (vertical federalism) jurisprudence, the court’s decisions seem to indicate no other limits on Congress’ power to regulate interstate commerce or to tax the American people.

The court’s decision on the Affordable Care Act individual mandate fee/tax could be construed as authority for Congress to tax people for simply living in the United States—an existence tax—so long as it was not based solely on race, religion, speech, gender, unreasonable search and seizure or, possibly, sexual orientation.

This issue may not become a constitutional question anytime soon but people need to start thinking about it now.

The Other Concern

We need to start thinking about and preparing for the unthinkable.

If segments of the human genome can be granted intellectual supreme-court-546279_640property patent protection for pharmaceutical development and precision genetic medical treatment, what will we do when some group of scientists clones a human being, if it has not already been done?

This is a bigger ethical and legal issue than so-called donor children or the cloning of stem cells.

In the movie Jurassic Park, the owner of the park when asked why he cloned the dinosaurs replied because he could. The Jeff Goldblum character replied “just because something can be done does not mean that it should be done.”

We make this movie reference to highlight the realistic possibility someone will do it—clone a human being—and while we should hope it never happens, we must be prepared for that possibility (some would say eventuality).

A cloned human being is more likely than an artificial intelligence singularity.

If (or when) a human being is cloned, will the clone be intellectual property or will the clone be a free person?

Some people may think this topic is more science fiction than a public policy discussion but the reality is we have already cloned animals, are cloning body parts out of stem cells and have created “test tube” babies. Cloning a human being may be considered medically unethical but that designation will not stop some unethical scientist from taking that next step. Therefore, public policy makers and public administrators must be prepared for all possible contingencies.

That public policy and public administration innovative foresightedness must also be applied to the evolution and deployment of artificial intelligence (A.I.) across the economy — both the smart and sharing economies.

Authors: Robinson and Adams are professors at the Barbara Jordan-Mickey Leland School of Public Affairs at Texas Southern University.

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