Jan 162003

Juan Non-Volokh writes:

Before the D.C. Circuit, occasional [Volokh] Conspiracy participant Erik Jaffe submitted an amicus brief on behalf of the Eagle Forum, pointing out that, read literally, the copyright clause does grants Congress the power “to promote the progress of Science and useful Arts,” and then proceeds to specify the means through which that power can be exercised (securing exclusive rights for limited times, etc.). The preamble does not limit the power, it is the power. Therefore, any grant of a copyright which does not promote progress is beyond the explicit grant of power. This argument is not particularly complicated or elegant, but it was enough to convince Judges Sentelle and Tatel on the D.C. Circuit and, in my mind, would have had the best chance of reaching some of the conservative justices on the High Court. Yet for whatever reason, the petitioners never adopted it below, and by the time they reached the High Court, it was too late to do anything about it.

The Copyright Clause is nearly identical, in its structure, to the Second Amendment. One refers to a power, the other to a right, but in both cases the first clause states the purpose, the second the means. So if one accepts this argument in Eldred v. Ashcroft, wouldn’t it follow that the right of the people to keep and bear arms extends only so far as is necessary to maintain “a well regulated Militia”? Yet Eugene Volokh argues elsewhere (I’m quite sure, although I can’t find a decent reference) that the first clause of the Second Amendment does not constrain the Second in this fashion.

Not that Volokhs and non-Volokhs are obliged to agree, of course.

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