It is the middle of the night. Sleep is awol, scared off by this question that won�t stop pestering me: Is there a principle here? Is there a way to read these opinions as consistent with a principle? (Updated)
(Apologies. I intended to update this but deleted it instead. Links to the original are below in the text, but this is the product of a few more hours sleep.)
Some background. There is a single, central question that has divided this Court over the past decade: Is it the Court’s role to review and constrain Congress in the exercise of its enumerated power. Four justices have been generally strongly in favor of deference. Five justices have insisted on limits. These five have insisted that an interpretation of Congress’s enumerated powers that erases any effective limit to that enumerated power is wrong. Four justices have consistently rejected that argument. Not that these four don’t vote to strike down laws of Congress. But rather they don’t strike laws of Congress on the ground of this “principle of enumeration.”
The single most important strategic decision in this case, and a decision for which I am solely responsible, was the decision to focus upon just this division. When we brought this case, people were rightly skeptical that the court would embrace an argument grounded in the First Amendment alone. Nor, given the Court’s general and appropriate deference to Congress, was it likely that a straight attack on the “rationality” of the statute would succeed. So our aim was to say, as Judge Sentelle argued in his dissent in the Court of Appeals: Under the enumeration principle announced in Lopez, and Morrison, retroactive extensions of existing terms violates “limited times.” If Congress has the power to extend a limited term without limit, then that is not a limited term.
The primary target of our appeal was therefore the five justices who had endorsed this principle ? Rehnquist, O’Connor, Scalia, Kennedy, Thomas. And in addition to these five, we had hoped that the general extremism of the extension (and pattern of the extensions) would attract the votes of some of the remaining four. But the least likely justice to be persuaded by our case was Justice Ginsburg, and second, Justice Souter.
So let’s start with the charitable point first: However much we may disagree with the result, as I said in my post after the argument in the case, there is something wonderful about losing because the Court believes its power is limited. As I said then, it is a virtue of a court system that the court constantly checks its will against a proper view of its limits. From this perspective, excluding the enumeration principle and putting aside the First Amendment, we should have lost. Justice Ginsburg was thus perfectly consistent with her own view of the constitution and the Court’s properly limited role when she wrote that whatever the Court’s view of the policy of the Sonny Bono Act, it was not the Court’s job to invalidate it.
This view also explains the general astonishment in the Bar about our bringing this case in the first place. For it was first year constitutional law throughout the 1990s that the Court should defer to Congress on the scope of enumerated powers. Since the New Deal, the Court had repeatedly held that there was no challenge of a statute by Congress on the grounds that it exceeded enumerated powers so long as there was any “rational basis” for that statute (where rational basis means, is there a hypothetical set of facts under which this statute makes sense). And again, under that standard, we should have lost.
But constitutional law did not end in 1990. Instead, beginning with the Lopez case, and then confirmed in Morrison, Chief Justice Rehnquist articulated a different way of thinking about enumerated powers. The question was no longer simply rational basis. The question was now also, is there a stopping point. Does a particular interpretation of Congress’s enumerated power yield the conclusion that its power is unlimited. If it does, then that interpretation must be rejected.
The context of those cases was the Commerce Power. But there was nothing in the opinions, or in logic, that would explain why the principle would apply to the commerce power and not elsewhere. Indeed, this was the strongest argument made by the dissents against the principle: That it would entail a general limitation on Congress’s power that was totally new in constitutional law.
It was new. And whether or not justified, our view was that this principle of constitutional law showed precisely why the power perpetually to extend copyright terms mean that copyright terms were not “limited.”
So here’s a first and simple way to test whether commentators about our case know what they’re talking about: Do they explain this principle and how it does or does not apply? In a petty moment of frustration, I made this point here. But the frustration is more general: If you don’t understand that this was the core argument in the case, then you don’t understand the case.
After the argument, I described the purgatory of an advocate, reliving the argument over and over, reanswering every question on countless sleepless nights. As I look back, there was just one question that might have mattered if answered differently. The most astonishing moment in the whole of the case was Chief Justice Rehnquist’s question, why hasn’t anyone ever raised this challenge before. The simple and obvious answer was this: “Because before your decisions in Lopez and Morrison, Mr. Chief Justice, there was no possible ground on which to argue against the exercise of an enumerated power. But Lopez established a principle that applies to this case. And unless there is some principled reason to distinguish it, the principle of Lopez limits Congress’s Copyright Clause power.”
That said, there is no chance that the Court didn’t understand that this argument was before it. Again, it was the sole ground upon which Judge Sentelle had voted against the statute. It was the core of our brief. Yet among the many doubts that will forever haunt, this more than any haunts most: Did the Chief really not understand that this case was his case? That it was because of the principles that he had first articulated that we had spent four years litigating this case?
No one wants to be proven wrong. But the sole reason that I believed that we were right, and that we would prevail, was this principle of enumeration. And despite the skepticism expressed at the oral argument, I could not begin to imagine how these 5 could distinguish that principle in this case. If we were going to lose, it was going to be, I thought, because they would find a way to distinguish what I believed they could not in good faith distinguish.
I was wrong, but not in the way I believed. Astonishingly, the silent 5 escaped this argument simply by ignoring it. Justice Ginsburg could understandably ignore it — she has never been a supporter of that argument. The same with Justices Stevens and Breyer — they too have never been supporters. But I would never have thought that the Court would decide the case by ignoring the only argument made in dissent by a federal judge below, and the core argument made by the petitioners in this case. Thus as I have said over and over again, I don’t know how you distinguish the Copyright Clause from Commerce. I still don’t. I just know we lost.
In my first post here, this point angered me. It angers me still. I respect (and have defended) the Court’s enumeration principle long before this case. I would have respected being shown the principled ground on which it does not apply here. But my frustration in reading the Court’s work in this case is the failure to apply its principle, or at least explain why not. If the Court believes there is a principled reason why the principle of enumeration applies to protect the rights of states (against liberal legislation) but does not apply to protect the public domain (against special interest legislation), it should say so. That is the picture of law that the best of our tradition teaches. And while our tradition also has many who believe there is no such thing as principle in the courts, that is not a view that I could ever promote as a law professor — as one who makes lawyers for a living, as distinct from one who simply analyzes and critiques the law.
I want to believe (thanks Aaron) that in ordinary times, principle guides this Court. The opinions in Eldred show some of those principles. There is nothing inconsistent in what was written. The inconsistency is in what was not written. And the challenge for me will be to explain the practice of reason that yields this fundamental inconsistency.