Re: Cong. Power/NBA, again

From: Buford Terrell <terrell[_at_]gateway.stcl.edu>
Date: Sat, 22 Feb 1997 12:15:35 -0600

On 2/20/97, Dan L. Burk <burkdanl[_at_]lanmail.shu.edu> wrote:
>
> On 2/18/97, Paul Heald <HEALD[_at_]JD.LAWSCH.UGA.EDU> wrote:
> >
> > Dan asked my to clarify my thinking on the I.P. clause and
> > Congress' ability to "get around" it by enacting legislation under
> > other sections of U.S. Const., Art. I, sec. 8. I reprint most of
> > his thoughtful post below.
> >
> > The I.P. clause grants Congress the power "To promote the
> > Progress of Science and the useful Arts, by securing for limited
> > Times to Authors and Inventors the exclusive Right to their
> > respective Writings and Discoveries"
> >
> > I would parse the clause as follows:
> >
> > Power: securing for Authors and Inventors exclusive rights
> >
> > Limitations: legislation must plausibly promote the "progress
> > of Science, etc."; writings must be original (Feist); discoveries
> > must be non-obvious (Graham); grants of rights can only be for
> > limited times
>
> Excellent. We agree almost all the way. Here is where I think we
> differ: the requirement of originality, as you parse the statute, is
> *not* a limitation, but part of the power; i.e., the power is to
> secure rights to authors and inventors, and "author" means that there
> must be originality per Feist.
>
> To place this in the context of your analogy to Gibbons: Congress has
> the power to enact bankruptcy laws, with the limitation that they
> must be uniform. In some sense, you might say that "bankruptcy" is a
> sort of limitation, in that Congress cannot use the power to
> legislate regarding tort reform or incorporations -- but "bankruptcy"
> is really the power granted itself.
>
> I cannot imagine that you would claim Congress cannot use the
> Commerce power to legislate regarding punitive damage caps by
> claiming, "AHA! The bankruptcy clause limits Congress to legislating
> on matters of *bankruptcy* and they can't use the broader Commerce
> Power to end-around that limitation!"
>
> Similarly, the IP clause grants Congress the power to legislate with
> regard to authors -- i.e., those who have expressed some originality
> -- and they can only do it to promote progress, for a limited time.
> But that does not mean that Congress cannot use the Commerce Power to
> legislate with regard to those who *aren't* authors.
>
> > In other words, whenever Congress secures to authors or
> > inventors exclusive rights to their creations, it must abide by the
> > limitations listed above. Under Gibbons v. Railways Executor's
> > Ass'n, it may not appeal to another grant of power, e.g. the
> > commerce clause, to secure these rights to authors.
>
> This would be absolutely the correct analysis if you were talking
> about the IP clause limitations: to promote progress, and only for a
> limited time. But I don't think that it goes to the definition of
> "author" -- which is not a limitation in the same sense.
>
> This reading, BTW, makes the statutes I listed before perfectly
> permissible as non-IP clause enactments, while still remaining
> coherent with the jurisprudence of the IP clause under Feist, Graham,
> and the rest.

The bankruptcy clause makes an interesting comparision, but I think the Second Amendment makes a better one. Unless my memory is failing, the 2nd and the "Authors and Inventors" are the only constitutional clauses that begin with a conditioning phrase of purpose ("in order to...). Gun control cases have uniformly held that the militia purpose limits the right to keep and bear. I would read the IP clause the same way: since we want to promote the useful arts, we can use the tool of limited monopoly so long as it promotes that goal.

I'm blundering into Eugene's area of expertise on the gun control issue, so perhaps he would have some comments.

-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Buford C. Terrell
Professor of Law

South Texas College of Law                          WARNING:
1303 San Jacinto                                    Objects in your
Houston, TX 77002                                   future are
(713)646-1857                                       closer than they appear.

terrell[_at_]stcl.edu
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Received on Sat Feb 22 1997 - 17:17:09 GMT