Constitutional Purpose and Inter-Clause Conflict: The Constraints Imposed on the Commerce Power by the Copyright Clause

Abstract

A series of recent cases challenging the constitutionality of congressional expansions of the duration and scope of copyright protection have focused considerable attention on the so-called preamble to the Copyright which requires that congressional action promote the Progress of Science and useful Arts. Most recently, in Eldred v. Ashcroft, the Supreme Court considered whether, in light of the 'preambular statement of purpose' contained in the Copyright Clause, a 20 year extension of existing copyrights is unconstitutional. Surrounding these cases has been a sharp difference of opinion between legal academics arguing that the progress requirement acts as a constraint on congressional intellectual property legislation, and the courts, which have thus far rejected arguments to that effect. This Article considers the merits of these arguments, but also asks a more important question: are these arguments actually moot? In the event that the preamble of the Copyright Clause is found to constrain congressional action under that clause, could Congress simply enact intellectual property legislation under its commerce power? After all, who could deny that intellectual property rights implicate interstate commerce? The Article examines the interaction between constitutional clauses and grants of power, and considers several arguments to the effect that the preamble of one clause constrains legislation otherwise authorized by other clauses. It concludes that although there is no reason to believe that the copyright preamble directly constrains commerce clause legislation, Congress is nonetheless bound to adhere to the purposive requirements of that preamble because only those restraints ensure that intellectual property rights are consistent with the First Amendment. In short, even if socio-economic change has placed intellectual property rights within the scope of the commerce power, as well as the copyright clause, the First Amendment continues to limit the permissible extent and purpose of those rights in a way that closely resembles the constraints of the copyright preamble. So while the preamble of the Copyright Clause may not itself constrain Congress, intellectual property legislation must nonetheless adhere to the purposive limitations it imposes.