January 18, 2003 · Lessig
There’s a growing and interesting thread at the Volokh Conspiracy about the Lopez argument that we made. Glenn Reynolds had a sensible post on the tension between strict constructionists (or as I have called it, the silent 5) and the result in Eldred. Juan non-Volokh agrees, disagreeing with Orin Kerr.
Orin argues that Lopez/Morrison were federalism cases; Eldred was clearly not. That’s no doubt true, but missing from the opinion in Eldred is an explanation why enumerated powers get limited in the context of federalism, but not elsewhere. Judge Sentelle couldn’t find such a reason. Maybe there is one. But the principle that would justify limiting power in one context but not in another should have been articulated.
But Juan says that the “strict textualist argument” that Glenn advanced was not advanced by us. He says this argument was Erik Jaffe‘s. It is true that Jaffee made this argument in the Court of Appeals. But it is not true that we failed to make a strict constructionist argument in the Supreme Court. Indeed, a section of our brief expressly argues that the “grant of power” was the “to promote progress” clause, and that that clause is not a “preamble.”
The only difference between Jaffe’s position and ours was that Jaffe’s would have authorized a court to evaluate any copyright act to test whether it “promoted the progress of science.” We thought that was too aggressive a position to take (on at least this point we were right!). Our argument instead was simply that the grant of power must at least be used to interpret the scope of “limited times.” That while it was not an independent substantive constraint, it should be used to interpret the scope of the power. This is more “textualist” than Lopez itself: Lopez grounds its reductio on a background view about federalism; we grounded our reductio on a view about “to promote the progress of science.”
Eugene passes on Eugene Kontorovich’s view that this case was really about original-congress interpretations — that the silent 5 could vote as they did because they were simply ratifying what the original congress did. That is indeed the most charitable read, though again, it is just bad history. Abstracting the fact that in 1792 the framers had not yet fixed on what it would mean for a law to be unconstitutional, in 1790, there is zero evidence that the framers would have believed the extension of an existing term was within Congress’s power. For the reasons argued extensively by the historians, Stevens, and us in our brief, the 1790 Act was not that. Thus it may well be that this case was all about one-step originalism. But on that basis, it was poorly reasoned.