The argument that the preamble of the Copyright Clause provides a strict constraint on congressional intellectual property legislation has met with broad support among legal academics, but it is viewed with some skepticism by the judiciary. The Supreme Court did acknowledge in Eldred that intellectual property legislation must, in at least some sense, promote the progress of science, but stressed that it is for Congress, not the courts, to decide what does and does not promote progress. The Court specifically rejected a "stringent" form of rational basis review for Copyright Clause enactments proposed in Justice Breyer's dissent, noting that the Court will "defer substantially" to congressional findings that a particular measure will promote progress. This Article examines the wisdom of the "preambular argument," but it also addresses a more important question that has likewise been the subject of a divergence of opinion between academics and the judiciary: are all the arguments about the Copyright Clause preamble actually moot? Even in the event that the preamble of the Copyright Clause is found to sharply limit congressional action under that clause, Congress might simply enact intellectual property legislation under its commerce power. Who, after all, could deny that intellectual property rights implicate interstate commerce? The prevailing view among legal academics is reflected by William Patry's argument that Congress may not "ignore the restrictions on its power contained in one clause merely by legislating under another clause" such as the Commerce Clause. But the Eleventh Circuit reached just the opposite conclusion in Moghadam, finding that "as a general matter, the fact that legislation reaches beyond the limits of one grant of legislative power has no bearing on whether it can be sustained under another." As such, the Moghadam court held that "in some circumstances the Commerce Clause indeed may be used to accomplish that which may not have been permissible under the Copyright Clause" In Part I, I examine the text and historical origins of the Copyright Clause itself, and consider arguments that the "promote progress" requirement is not really a purposive preamble at all. I argue that the opening text of the clause does constitute a purposive limitation on congressional action that courts must take seriously, whether we actually use the term "preamble" or not. In Part II, I examine the practical import of this limitation in light of constitutional case law and doctrine. I conclude that although a reading of the progress requirement as a purposive preamble suggests that courts ought to be less deferential to congressional assurances of compliance than would normally be required by limiting language in the Constitution, any consequent scrutiny would be meaningless if, as the Moghadam court held, Congress may simply bypass the constraints of the Copyright Clause by legislating under the Commerce Clause. In Part III, I consider four different ways to assess whether action under one constitutional clause impermissibly conflicts with the limitations imposed by a different clause and, if a conflict is found, determine which should take precedence. I argue that one must consider the relationship between the constitutional purposes of the respective clauses in order to successfully analyze such conflicts. Finally, in Part IV, I use the purposive analysis just described to examine potential conflicts between the Copyright Clause and intellectual property legislation passed under the auspices of the Commerce Clause. I suggest that although there is no necessary conflict between the two, legislation could nonetheless run afoul of the Copyright Clause preamble while passing muster under the commerce power. In those cases, I argue, judicial weighing of the rival purposive goals involved will be aided by employing the anti-monopolistic and pro-free expression goals of the copyright preamble. Thus, courts should not only ensure that Commerce Clause intellectual property legislation has the purpose of promoting the progress of science and the useful arts, but also should employ exacting scrutiny when reviewing congressional assertions that this is the case.
Andrew M. Hetherington,
Constitutional Purpose and Inter-clause Conflict: The Constraints Imposed on Congress by the Copyright Clause,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol9/iss2/5