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Justice Scalia and Judicial Theory

2) This case may not afford the judge an opportunity to make new law re cloning because it is not an issue which needs to be decided to dispose of the manslaughter indictment. What the judge does have to decide is whether a cloned embryo of that age is a person who has been killed, a quite different issue than whether cloning is illegal 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


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Justice Scalia and Judicial Theory. (1969, December 31). In Retrieved 20:37, October 22, 2014, from
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