Eldred and Lochner: Copyright Term Extensionand Intellectual Property as Constitutional Property PDF Print E-mail
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112 Yale L.J. 2331 (2003)

As intellectual property has become increasingly important to the national economy, a consensus has emerged among academics that courts should scrutinize congressional legislation closely under the Constitution's Copyright Clause. This Essay has challenged the academic consensus about the Copyright Clause and sought to offer a more robust defense of the result reached in Eldred than is reflected in the Court's opinion itself. In so doing, it has drawn on lessons gleaned from Lochner. Defenders of Lochner-era jurisprudence, like the IP Restrictors, claimed that their position was consistent with originalism, and the two movements' conceptions of the original understanding are quite similar. The IP Restrictors and the champions of Lochnerism both portray the Founders as constitutionalizing their opposition to special-interest legislation and monopolies. Subsequent historical research challenged Lochner-era originalism as inconsistent with the original conception of judicial review and as misconceiving the Founding generation's attitude toward economic regulation. This Essay drew on precisely these two lines of argument to challenge the IP Restrictors' originalism, and we have argued that the IP Restrictors' originalism is as flawed as the Lochner-era originalism that it echoes.

The second lesson concerns the constitutionalization of a vision of the economy. Lochner is widely regarded as having constitutionalized a policy view. We argue that the IP Restrictors are trying to do precisely the same thing. In Lochner, that attempt proved unsuccessful in the long run, as the Court reversed itself and adopted deferential scrutiny of economic legislation under the Due Process Clause. We suggest that this episode is simply the most familiar manifestation of a larger historical pattern. At times of economic change, the Court has repeatedly tried to constitutionalize an economic vision, and it has repeatedly retreated and adopted deferential scrutiny. The reasons for deferential scrutiny of economic legislation--reasons sounding in judicial competence and process theory--are equally applicable here. Moreover, a holistic reading of the Constitution suggests that the deferential scrutiny that courts now employ in reviewing economic legislation under clauses of the Constitution other than the Copyright Clause should be applied in interpreting that Clause as well.

The purpose of this Essay is not to refute the IP Restrictors' policy vision. And we certainly are not writing in defense of rent-seeking. Our judgment is that the IP Restrictors' vision is not the constitutional vision of the Founders. Moreover, we believe that concerns about judicial competence, respect for the majoritarian process, and the dictates of constitutional interpretation mean that the Eldred Court was wise not to constitutionalize the IP Restrictors' vision. When courts exercise the power of judicial review under the Copyright Clause, the proper attitude is one of deference. The approach the Court now typically applies when reviewing legislation affecting property rights should apply, as well, in the intellectual property realm.