Re: Constitutional Challenge to (C) Code

On Tue, 31 Mar 1998, Michael Echeverria <mechever[_at_]alldata.com> wrote:
>
> Another, probably fatal, problem would be justiciability. The
> Constitution clearly grants to Congress the authority to grant Copyright
> protection. The determination of what "limited term" would best
> "promote the progress of science and the useful arts" is purely a
> legislative function, and a court would (or at least should) refuse to
> substitute its legislative judgment for that of Congress.

I don't think the issue is what "limited term" or "limited time" would best "promote the progress of science and the useful arts." I agree that that would not be justiciable. I think the issue would be whether a term of life+70 (or life+50) qualifies as a "limited time." That issue would be justiciable. I believe it would be a losing argument, but it would be justiciable.

> The "mandated by Berne" argument would, I hope, be rejected. If a
> Congressional act is unconstitutional, it should not be saved because it
> is mandated by a treaty, which is limited by the same constitution.

It depends on the basis for its unconstitutionality. If it's a matter of Constitutional prohibition, I agree that a treaty would not save it. But the question here is of empowerment. Assuming that the Copyright Clause does not empower a life+x term, empowerment from another source would; and that source can be the treaty clause.

> The Treaty Clause does not create any additional powers to Congress.

The case Holland v. Missouri in the 1920s and some of its progeny holds that the power to enter into a treaty includes the power to enact legislation necessary to implement the treaty.

There was an attempt in the 1950s by Senator Bricker to amend the Constitution to overrule this holding, but the Bricker Amendment failed by a narrow vote in the Senate.

> For example, if the President signed, and the Senate ratified, a treaty
> mandating the creation of "separate but equal" school districts for
> immigrants and citizens, would that override the Brown v Board of
> Education holding that such districts are inherently unconsitutional?

That's a very different question. The question in your hypothetical is not whether a treaty can give rise to legislative empowerment, but rather whether a treaty can override an express constitutional limitation. I agree that it can't, and I remember that there's some (what appears to be) dicta in a plurality opinion that agrees with us on this one; I think the case was Reid v. Covert, but don't trust me on the spelling.

--
Terry Carroll       |  "I know the Great Lakes.  I've traveled the 
Santa Clara, CA     |  Great Lakes.  And Lake Champlain is not one of
carroll[_at_]tjc.com     |  the Great Lakes." - U.S. Senator John Glenn reacts
Modell delendus est |  to 33 U.S.C. 1122 as amended by Pub.L. 105-160