October 17, 2002  ·  Lessig

Long before I downloaded Mosaic 1.0, my obsession was constitutional law. It still is. If there is one intellectual passion that has lived the longest in my life, it is how a country makes sure its constitution lives. I spent many years studying the emerging democracies in the former soviet republics. I spent many years writing about how our Court can best protect our constitutional values over time. This, it turns out, is an extraordinarily hard question, for which we have no good answer.

So as a constitutionalist, I must confess that the greatest part of this debate about Eldred is that it has now become framed — at least in the public space — as a debate about what the appropriate role of the Supreme Court is. This is precisely the right question to ask, as the Washington Post’s very smart editorial asks it. As Eldred’s attorney, it is of course my role to say that the answer is easy, and indeed, the nice thing about picking one’s cases is that the proper answer in my role is the answer I genuinely believe. There has been great controversy about the Court’s intervention in the context of federalism, but as I firmly believe, there should be no similar controversy in the context of the Copyright Clause (again, the text is clear, and the Court unanimously has affirmed that the text is a grant of power and a limitation).

But however the Court resolves this case, it will be teaching us something important about what a constitution means: either that the Court can interpret express limits to give them effect (and hence my clients win), or that the Court interprets the limits on its own power such that there is only so much it can do to police a Congress out of control (and hence, a principle of judicial restraint wins). I, of course, prefer giving the constitution’s limits effect over a restraint that defeat the constitution’s aim. But either way, these are results of principle, not politics. As one person emailed me, either result “reaffirms something important and good” of at least this part of our government.

  • http://home.uchicago.edu/~kldavis/ Karl Davis


    I recently had opportunity to sit down with one of your former colleagues, and current instructor of mine, Professor Dennis Hutchinson, to discuss the merits of the case and the potential outcome. While he and I both believe in the truth of the cause, your undying will, and the power of the arguments for reversal, it is very difficult to see the past the disheartening appearance that the court would rather (to paraphrase Chief Clancy Wiggum) let a thousand over-extensions of congressional power go free than chase after them, 200 years after the fact.

    That having been said, I thank you for discussing the potential for growth even if the court does not rule in our favor. It’s very much appreciated in the wake of your post ‘from the front line,’ which seemed to have an unsettling ‘if we lose, all is lost’ sentiment. Judicial restraint is such a rare commodity, and one that perhaps the other branches of our government could learn from the court. God knows that if congress exercised such restraint we’d never have seen anything near the likes of the CTEA or DMCA. The best result in this case is the one that allows the Constitution to walk away as a stronger document for years to come…in which case, I don’t think we can lose.

    Always grateful,

  • FA Hayek

    It seems that if the Court were to exercise restraint in interpreting the particular clause at issue in Eldred, the time to do so was before It held that “Writings” meant any human created work having originality and before It read “Sceince” out of the clause. I for one, hold out some hope that the Court will not further pervert the clause by reading “limited Times” out as well–in the name of “restraint”.

  • Democrat

    It seems to me that this is an issue which should be resolved by the ballot box. Let congress express the will of the American people on this kind of policy issue. This isn’t a case where the majority is taking on excessive privileges and trampling the rights of a powerless minority. It is a simple policy matter which requires balancing competing interests to accomplish the goal of promoting progress. The court has no place overriding congress on such a matter. If you disagree with what congress has done, tell your congressman and organize with like-minded citizens to make your voice heard. Don’t rely on a shortcut that goes behind the back of the American people. Get them involved and show them that your side is right. Make changes through the democratic process, with widespread public debate and support. In the long run, that is the best way to improve the health of the body politic.

  • Michael

    either that the Court can interpret express limits to give them effect (and hence my clients win), or that the Court interprets the limits on its own power such that there is only so much it can do to police a Congress out of control (and hence, a principle of judicial restraint wins).

    As long as the Supreme Court holds its checks and balances on Congress, how is it possible for the court to say that they could say “there is only so much they can do to police a Congress”? If Congress expands its power, does not the Supreme’s (and Executive branch’s) power increase proportionally?

    If the court used that arguement (that Congress may have overstepped its bounds, but two wrongs don’t make a right) wouldn’t that trivialize its role in our system of checks and balances?

  • Sam

    No, the debate is focused on the wrong question. Lessig deserves to win not because the Framers can be interpreted as having originally suggested limits to copyright. We would want there to be limits to copyright � for the reasons Lessig has specified elsewhere � no matter what the framers said. On this view, the support that the Copyright Clause lends to Lessig�s political cause is a matter of luck, and allowed him, a law professor, to advance his admirable politics via constitutional law.

    But there is no reason for anyone who agrees with the politics of his case to follow him in this ritualistic genuflexion before the genius of the court and the constitution. If the Court reaches the wrong result � another view would say � it reflects a failure of the present constitutional scheme rather than a victory for reason and principle. It would reflect a reduction of democracy to gerontocracy and suggest the possibility of a different constitutional scheme � one which would allow ourselves to govern ourselves over time without as much sacrifice.

    Lessig�s books illustrate why he believes the Court has to be the last best hope and the present constitution a matter of faith. Simply put, he thinks there are no other choices. There is no prospect of constitutional change. Democratic processes � as the Sonny Bono extension show � are unreliable. Fair enough. But these are not good enough reasons to pretend that the court will give the right answer. At best, they suggest that asking the court to interpret the law provides the best hope for change right now. But this consideration is strategic, moral. One could pursue Lessig�s strategy faute de mieux, as the only available option. Instead, Lessig presents the court as wise and rational, waiting expectantly for the verdict in order to be taught what the right constitutional answer is.

    To sum up: you might take a negative result in this case — as well as the necessity of pursuing a political project in the guise of legal interpretation even if the result is positive — as suggesting an opposite moral than the one Lessig suggests. Why always join moral and political activism with conformist respect for the very particular constitutional scheme in which that activism is forced to proceed (and which may distort it in certain ways)?

  • raha azad