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A Shared Constitutionalism: Stem Cells and the Case for Transatlanticism

Journal of Contemporary Health Law and Policy, Vol. 22, p. 476, 2006

Washington & Lee Legal Studies Paper No. 2011-39

23 Pages Posted: 12 Jan 2012  

Russell Miller

Washington and Lee University - School of Law

Date Written: January 10, 2012


These have been hard times for the Transatlantic alliance. One has come to expect rough patches in Franco-American relations, but the policies of the second Bush Presidency, clashing with Chancellor Schroder's anti-war reelection campaign in 2002, have seemingly plunged relations between the United States and Germany, stalwart Cold War allies, into crisis as well. For some, the "grosser Teich" ("big pond," as many Germans were once fond of referring to the Atlantic Ocean) is looking more oceanic by the day.

No one has insisted upon the widening gulf as clamorously as Robert Kagan of the Carnegie Endowment for International Peace. But this impression is wrong for at least two reasons. First, and most significantly, because it depends upon the gulf that has opened up between the U.S. and Germany on a number of policy issues, which are subject to shifts in the popular mood, while neglecting more fundamental commonalities. Second, this conclusion relies upon a willful blindness to the comparative sample that gives it force.

As to the first critique, Kagan and many other commentators seem persuaded that divergence and disagreement over policy and in popular culture are adequate measures of the rot that has supposedly gotten into the Transatlantic alliance. Thus, the death penalty, gun ownership and social welfare come in for consideration. So, too, does the popularity of Michael Moore in Europe. Of course, the Iraq war is the policy agenda dejour that serves as the definitive diagnostic device leading to the conclusion that the United States and Germany are drifting apart.

With respect to the second critique, in remarking upon the dramatic differences between the United States and Europe, Transatlantic pessimists do not dwell on the determinative character of their self-selected comparative sample. But the dissimilarities between the United States and Europe fade from nearly any other comparative perspective. What if, for example, the focus shifted away from distinctions within the Transatlantic alliance (including the United States and Germany) to a consideration of the distinctions between the Transatlantic alliance and (perhaps more appropriate for today's geopolitical climate) the Arab world?

Human stem cell research, the focus of the present proceedings, simply adds grist to this mill. Taking the United States and Germany, one finds totally dichotomous policies. The United States liberally permits the practice and only imposes restrictions on the availability of federal funds for projects involving human stem cell research.' Germany, on the other hand, which only recently softened its comprehensive ban on the practice, still tightly regulates the limited exception to that ban. Accepting the respective policies on this issue as exceptionally indicative of the state of the Transatlantic alliance, it would seem to be difficult to dispute that, in considering the United States and Germany today, we are talking about countries as different as "Mars and Venus."

I beg to differ. Underlying the countries' diametrical approaches toward human stem cell research is a shared brand of liberal constitutionalism that transcends matters of malleable policy. I believe that an examination of this fundamental common ground is a better test of the firmness of the foundations of Transatlanticism. Ironically, Kagan seems to agree: "after all, it is more than a cliche that the United States and Europe share a set of common Western beliefs. Their aspirations for humanity are much the same, even if their vast disparity of power has now put them in very different places."

In this paper, I argue that the tensions plaguing the Transatlantic alliance, and the intensity of the alarm they have triggered, are overblown. Washington and Berlin may not see exactly eye-to-eye these days, but Americans and Germans occupy decidedly the same world. This conclusion rests on my examination of a shared Transatlantic constitutionalism, as exemplified by probable United States and German constitutional responses to human stem cell research. A constitutional analysis of this issue does not support the conclusion that "the United States and Europe are fundamentally different today." To the contrary, it reveals that, even on an issue for which they reach such conflicting conclusions, the United States and Germany have the most important things in common.

Keywords: International Law, Stem cell research, Constitutional Law

JEL Classification: K10, K33, K32

Suggested Citation

Miller, Russell, A Shared Constitutionalism: Stem Cells and the Case for Transatlanticism (January 10, 2012). Journal of Contemporary Health Law and Policy, Vol. 22, p. 476, 2006; Washington & Lee Legal Studies Paper No. 2011-39. Available at SSRN:

Russell Miller (Contact Author)

Washington and Lee University - School of Law ( email )

Lexington, VA 24450
United States

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