Re: Cong. Power/NBA, again

On 2/22/97, Buford Terrell <terrell[_at_]gateway.stcl.edu> wrote:
>
> 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 think the differences are more significant than the similarities. One empowers and the other restrains. One is permissive and the other is mandatory. The IP clause _authorizes_ Congress to act "in order to" accomplish the constitutional objective, while the 2d Amend prohibits Congress from acting "in order to" [pre]serve the constitutional objective. Granted that Congress may legislate in the realm of gun control as long as it doesn't frustrate the maintenance of a wellordered  militia. But I'm not sure it follows that Congress may _not_ legislate in the realm of intellectual property on the ground that it does not promote the progress of science and the useful arts. In fact, if you were arguing from 2d amend jurisprudence to the IP clause's construction, you might come to the conclusion that constitutional limits on Congress' power under the Commerce clause must be explicit, and that the IP clause does not explicitly forbid the enactment of broader protections.

John Noble
<jnoble[_at_]dgs.dgsys.com> Received on Mon Feb 24 1997 - 17:33:34 GMT