Hi Chris.
I think we're at the point of agreement, but I just
want to clarify and expand upon one point.
What stands out about the recent Commerce Clause cases
-- and what I like about them -- is the Court's
determination that in the interest of preserving
federalism, it will take on more of the burden of
defining what is related to "commerce", thereby
helping to delimit Congress's power.
This is an interpretive stance that, until Eldred, I
thought would apply more broadly. The fact that we
have a legislature with enumerated) rather than
plenary) powers is a structural constitutional
principle that is antecedent to federalism. That is,
we couldn't have federalism unless we had limited,
rather than plenary, national legislative powers --
otherwise, Congress could invade the regulatory
province of the state legislatures at will.
So for reasons consonant with the conservative
majority's interest in preserving federalism, I
expected that the Court's new vigilance regarding the
scope of enumerated powers would apply equally to its
review of Congress's Copyright Clause power. I was
wrong, but for all the right reasons. The Court was
wrong, and for bad reasons that make the conservatives
appear to be judicial activists.
Cheers.
- Chris
- Chris Mohr <chrismohr[_at_]sprintmail.com> wrote:
> I agree with you--federalism is a structural
> constraint built into the
> commerce clause. It limits the State police
> power--the states have an
> interest in pushing back lest they become completely
> subservient to the
> federal government. (FWIW, I agree that the
> sovereign immunity
> decisions--particularly the recent 11th Amendment
> penumbra that the
> Court created--are, er, slightly loony. Even some
> pretty prominent
> conservative jurists think so--Judge Noonan in the
> Ninth Cir. just wrote
> a pretty good book taking those decisions apart.
> The court's belief in
> this structural limitation, right or wrong, is
> genuine).
>
> The states have no sovereign interest in the term of
> copyright
> protection--the constitution _structurally_ (and
> textually) takes it
> away from them. Federalism is irrelevant. Put
> another way, what
> cognizable, structural interest is the court
> defending by striking down
> the CTEA? The political considerations are
> recognized in numerous
> doctrines, such as Younger abstention, or political
> question, or the
> case or controversy requirement of Article III--and
> they were around
> long before the current CJ and his gang of four.
>
>
>
>
> -----Original Message-----
> From: owner-cni-copyright[_at_]cni.org
> [mailto:owner-cni-copyright[_at_]cni.org]
> On Behalf Of Chris Sprigman
> Sent: Wednesday, January 29, 2003 10:58 AM
> To: Multiple recipients of list
> Subject: RE: More Re: ELDRED
>
> The federalism defense -- i.e., the argument that
> the
> Commerce Clause decisions make sense because they
> were
> animated by federalism concerns and Eldred makes
> sense
> because it wasn't -- doesn't work. Federalism is a
> structural element of the constitution. The
> "limited
> Times" and "promote . . . Progress" constraints in
> the
> Copyright Clause are textual constraints on
> Congress's
> power. Why would the Court take an active role in
> delimiting Congress's commerce power, on the basis
> of
> a structural concern, but leave to Congress the task
> of defining the scope of its Copyright Clause power,
> despite the presence of textual constraints (i.e.,
> the
> kind of constraints that courts are best suited to
> interpret)?
>
> One explanation is that the Court's conservative
> majority is result-oriented. The other explanation
> is
> . . .?
>
> --- Chris Mohr <chrismohr[_at_]sprintmail.com> wrote:
> > If that was the point of the article, then, though
> I
> > almost never agree
> > with Tyler ;), but on this one he's right. The
> cases
> > where the court
> > strikes down statutes involve a triangulation
> > between two countervailing
> > interests, with the Court in the middle. First,
> > there are the decisions
> > where the Federal government imposes on the power
> of
> > the states (Lopez,
> > Morrison, and College Savings). Second, there are
> > cases where the state
> > (or feds) crib the rights of the individual. The
> > third involves
> > separation of powers--where, for example, Congress
> > impermissibly
> > delegates judicial power to a federal agency.
> >
> > None of those concerns were present in this case,
> > despite petitioners'
> > attempts to portray them as implicated. The court
> is
> > definitely activist
> > in the states' rights area, but those interests
> > weren't implicated here.
> > The C Clause is entirely federal; the states
> > generally have no
> > 'interest' at stake in the constitutionality of
> > federal copyright
> > legislation. The commerce clause cases are
> therefore
> > irrelevant; this is
> > more analogous to a challenge to a taxation
> statute
> > as not being for the
> > general welfare. (Petitioners effectively conceded
> > their individual
> > rights argument by failing to articulate a First
> > Amendment rationale
> > outside of their copyright clause challenge.).
> I'm
> > sure Ginsburg gladly
> > put in the language about the Boerne test into the
> > opinion, but that's
> > because it limited that test to the states' rights
> > area--where it
> > belongs (if it belongs anywhere).
> >
> > The decision struck me as neither wrong,
> surprising,
> > nor inconsistent
> > with prior precedent. Lots of folks don't like it,
> > but I think it's
> > incorrect to characterize it as an aberration.
> >
> > -----Original Message-----
> > From: owner-cni-copyright[_at_]cni.org
> > [mailto:owner-cni-copyright[_at_]cni.org]
> > On Behalf Of Chris Sprigman
> > Sent: Monday, January 27, 2003 6:03 PM
> > To: Multiple recipients of list
> > Subject: Re: More Re: ELDRED
> >
> > Tyler: When the conservative majority veers back
> and
> > forth between tight constraints on Congress's
> > enumerated powers (Lopez and Morrison in the
> > Commerce
> > Clause context) and virtually no constraint
> (Eldred,
> > in the Copyright Clause context) it matters little
> > whether Eldred, standing alone, is an activist
> > opinion. It is activist in context because its
> > reasoning is inconsistent with the closely
> > comparable
> > Commerce Clause cases, thus leading to the
> > impression
> > that the conservative majority is result-driven.
> >
> > That was the point of the article, and I think it
> > stands. At the very least, if the conservative
> > majority was concerned about appearances and had
> an
> > argument for distinguishing between proper
> judicial
> > analysis of Congress's exercise of its enumerated
> > powers in the Commerce Clause and Copyright Clause
> > contexts, it could have offered it. That the
> > conservatives did not, and that they allowed
> Justice
> > Ginsburg (who has never adhered to the
> > Lopez/Morrison
> > line) to write for them, speaks volumes.
> >
> > Best regards.
> >
> > -- Chris Sprigman
> > --- Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> > > >>> sprigman1[_at_]yahoo.com 01/22/03 08:00AM >>>
> > > In any event, whether or not the CTEA is bad
> > policy,
> > > I believe that the
> > > Supreme Court's opinion in Eldred is bad legal
> > > reasoning and a worrying
> > > example of conservative judicial activism. See
> > >
> >
>
http://writ.news.findlaw.com/commentary/20030120_sprigman.html
> > >
> > > <<<<<
> > >
> > > I have already expressed my opinion about the
> > > Court's legal reasoning,
> > > and I agree with many of the criticisms of the
> > > opinion in your piece. I
> > > also agree that there are many worrying examples
> > of
> > > conservative
> > > judicial activism from the current Court.
> > However,
> > > Eldred is not one of
> > > them. Eldred may be conservative in its outcome
> > [it
>
=== message truncated ===
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Received on Fri Jan 31 2003 - 14:35:31 GMT