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.