llegal or unconstitutional. Anything he would decide re cloning would be dicta not central to the ruling in the case and, therefore, not a controlling precedent. A judge's common law authority extends only as far as the facts of the case warrant. Judges are notoriously reluctant to decide issues, especially thorny constitutional issues, when they need not to dispose of the case. The District Court should have brought an action, criminal or civil, which directly contests the validity of cloning.
If the judge were to decide the legality of cloning on these facts and in the absence of a governing statute, he really would be taking on a very political role and imposing his own personal values rather than that of the nation's elected representatives. If he did so, he would have to hang his hat on some rubric in the state or federal Constitution, such the 5th/14th Amendment's strictures against the state taking life, liberty or property without due process of law. The difficulty with this approach is that only private not state action is involved (unless it could be argued that the research was state-subsidized or sponsored). Another theory might be a la Roe v. Wade, 410 U.S. 119 (1973), that the destruction of the cloned embryo somehow invaded the constitutional right to privacy of either the fetus in the embryo or the right of the scientist to practice his profession. While one could envisage a constitutional rung on which the judge might rest his ruling, this would appear to be an unwarranted intrusion of the judiciary into basic questions of public policy which should be left in the first instance to the legislature to decide.
Scalia, A. (1997). A Matter of Interpretation. Princeton:
Summary Outline of a Matter of Interpretation by Antonin Scalia
a. Scalia starts with his reading of history --i.e. at common law the law was developed by judges by applying the law
to particular facts of each case and creating prece...