Re: Congressional restoratio power

CSims[_at_]proskauer.com wrote:
>
> Readers should know that notwithstanding its peremptory tone, Georgia
> Law Professor Paul Heald's assertion that Congress lacks any power to
> restore copyrights because of the wording of the Constitutional
> copyright clause is open to serious doubt. The commerce clause would
> seem an equally available font of power to define and protect
> intellectual property. The Constitution doesn't consist of air-tight
> compartments: famously, the fact that Congress can protect civil rights
> under the Civil War Amendments didn't keep the Supreme Court from
> justifying the 1964 Civil Rights Act under the commerce clause. The
> Fifth Circuit is now considering a case raising the question whether
> the due process clause of the Fourteenth Amendment is yet another font
> of such power.

    I'll not repeat the entire prior debate over the scope of Congress' power under the Commerce Clause to evade express limitations containing in other Art. I, sec. 8, grants of power. Dan Burk presented a coherent response to my prior postings on the issue. Suffice it to say that in a 9-0 opinion in Railway Executor's Ass'n v. Gibbons, the Supreme Court held that Congress could not use the Commerce Clause to get around express limitations established by the Framers. In that case, the Court considered language in the Bankruptcy clause which grants Congress the power to pass "uniform bankruptcy laws." In passing a law that favored only employees of the Rock Island Railroad, Congress had passed a non-uniform law which the Court found unauthorized by the bankruptcy clause. The Court then considered whether Congress could rely on its broad commerce power instead. The Court unanimously held that it could not. Justifying the law under the commerce clause would have the effect of erasing limiting language ("uniform") from of the Constitution. I am confident, yeah even peremptorily so, that the Court would say the same thing about a law designed to erase the words "to promote" from the Intellectual Property clause.

Paul Heald
<heald[_at_]jd.lawsch.uga.edu> Received on Mon Apr 21 1997 - 14:15:45 GMT