Bioethics and the Constitution

Public Interest, Summer, 2004 by Diana Schaub

WHEN I mentioned the topic of my essay to a man well-versed in these matters, he suggested that I respond to the question of the relation between bioethics and the Constitution as Justice Antonin Scalia might. As Supreme Court watchers know, Scalia is famous for his scathing dissents in which he chastises his fellow judges for sounding off on any and all subjects without any constitutional warrant for doing so. Scalia's complaint is that judges regularly issue opinions untethered from the text of the Constitution, despite their clear obligation to remain tied to the document. One of my favorite of Scalia's tongue-lashings comes from Hodgson v. Minnesota, an abortion case from 1990, in which Scalia declared:

   One will search in vain the document we are supposed to be construing
   for text that provides the basis for the argument over these
   distinctions.... The tools for this job are not to be found in the
   lawyer's--and hence not in the judge's--workbox. I continue to
   dissent from this enterprise of devising an Abortion Code, and from
   the illusion that we have authority to do so.

If I take my cue from Scalia, the most straightforward answer I could give would be that we can't know how to think about bioethics and the Constitution since there is nothing there to think about. The Constitution is silent on such matters, whether it be the most dramatic, but still unrealized, biotech possibilities like human cloning or increasingly routine options like in vitro fertilization (IVF), embryo screening, and drugs to alter mood, enhance performance, and prolong life.

The silence of the Constitution is not a fault, nor a cause for distress. When the Constitution is silent, it simply means that the matter is one for the current generation to address. We will, of course, do so through the political structures established by the Constitution. Accordingly, the silence of the Constitution might best be understood as an invitation to practice self-government as the Founders understood it. Their great achievement was to draft a fundamental charter that leaves each generation largely free to direct its own affairs.

This is a tremendously important constitutional lesson. There is a marked tendency among Americans to venerate the Constitution and to turn to it for answers. At the very least, we scour the Constitution for evidence in support of the answers we happen to favor. These habits speak well of us, inasmuch as they demonstrate filial piety. However, we should remember that the Constitution is not like the Bible: It does not offer a moral code, rules for living, or even maxims of government. The Constitution never sought to provide answers for the dilemmas of future generations. After all, those dilemmas were quite literally unimaginable at the time. What it did do, though, was establish a framework to work through those dilemmas. In the words of political scientist Herbert Storing, "The substance [of the Constitution] is a design of government with powers to act and a structure arranged to make it act wisely and responsibly. It is in that design ... that the security of American civil and political liberty lies."

The Constitution, by its silence, instructs us to meet the public policy challenge of biotechnology through the political branches of our government. There are a few hopeful signs that we are up to the challenge. President Bush formed the President's Council on Bioethics in 2001. According to Executive Order 13237, the council's mission is "to undertake fundamental inquiry into the human and moral significance" of biomedical developments and "to explore specific ethical and policy questions related to these developments." The council has so far issued four reports: the first on human cloning; the second on the whole panoply of so-called "enhancement" technologies, which hold out the promise of making human beings stronger, smarter, and longer-lived; the third on the current state of stem cell research; and the fourth on the current state of assisted reproduction. These are truly remarkable documents, capable of focusing the attention of citizens on the crucial questions and informing public debate and reflection. This is a matter of some moment since the Constitution lodges final authority not with the experts or the scientists, but with the people and the people's representatives.

In the Politics, Aristotle defends a regime in which the multitude has a share in the highest offices: the offices of deliberation and judgment. The heart of his defense is an argument on behalf of the educated layman. There can be individuals who, while they "do not possess the art" (or science) in question, nonetheless "have some knowledge of its works." The reports issued by the President's Council on Bioethics enable each of us to become an educated layman in Aristotle's sense. Reading them does not make us either geneticists or bioethicists, but it does outfit us with the competence of the nonprofessional.

Moreover, Aristotle argues that, in some cases at least, it is the users of an art (which is to say, its beneficiaries) who are the appropriate judges. It is the diners, not the cook, whose verdict on the meal matters. Similarly, it is the citizens, not the scientists, who must determine what items to select from the biotech banquet, and what items to decline or even ban. This is perhaps not an altogether reassuring metaphor, for most of us behave badly at smorgasbords. We overindulge, and the art of cooking is complicit in our overindulgence because it caters to our tastes more often than it contributes to our health. For this reason, Socrates suggested that cooking is not a true art, but a form of flattery and demagoguery.