Let me see if I can summarize the stupidity of Lessig’s position. He basically says that the supreme court should abrogate one of the powers the constitution explicitly gives the supreme court (namely the power to regulate copyright). They should do this in the name of state’s rights. Of course Lessig doesn’t actually believe in state’s rights. Rather he believes in a large federal government. So he also thinks that the supreme court should give the federal government powers it was never explicitly given by the federal government and which are therefore reserved to the states like the power to outlaw discrimination. In sum, Lessig believes we should read the constitution and do the exact opposite of what it says. Lessig than goes own to criticize the supreme court because he didn’t get his way. He considers it a violation of principle for the supreme court to actually follow the constitution. Namely the supreme court is violating the principle of limiting the power of the federal government to the greatest extent possible which BTW is a principle that Lessig never believed in the first place. In was just a principle Lessig decided to cynically exploit in order to get his way. The only problem with this principle is the supreme court never actually believed in it themselves. They instead followed the principle that YOU SHOULD DO WHAT THE CONSTITUTION SAYS. This principle implies that you give to the federal government the powers it is supposed to have according to the constitution. Nothing more and nothing less.

On the other hand there is nothing in the constitution that says the federal government has the right to outlaw discrimination as in the civil rights act. In fact the first civil rights act was declared unconstitutional in 1875 when the supreme court actually believed in the constitution. Most of the New Deal legislation is also unconstitutional. NONE OF THESE THINGS POWERS GIVEN TO THE FEDERAL GOVERNMENT IN THE CONSTITUTION. The power to regulate copyright is a power the federal government is explicity given. So I don’t see why your complaining. If anything the court is being too liberal. It should be out there outlawing the civil rights act, the new deal legislation etc. Instead it is dealing with stupid things over which the federal government has explicit power.

The Law as determined by precendents may be the law which is enforced, but it is not the Law. Loss of faith in the honesty of the Court is not the same as loss of faith in the Law. (Rather, it’s a cause for promoting impeachment proceedings…)

Paul Fernhout has made a very good point. Unfortunately, the attitude of the Reagan/Bush “justices” corresponds quite consistently with a belief that *private* property is sacrosanct but *public* property has no value. This is of course in contradiction to the ancient public trust doctrine, but it’s the line they have taken. Accordingly they probably see it as an issue of property, but see nothing wrong with giving away public property for zero public benefit.

Impeachment of Scalia, Rehnquist, and Thomas is what the country needs, of course; unfortunately it’s very unlikely to happen.

By its ruling, the Supreme Court essentially and perhaps unwittingly advanced the notion that copyright is not a natural property right, and is not subject to compensation for taking, since otherwise, how could extending an existing copyright not be considered a taking from the public domain and thus entail direct and immediate compensation to the public? Thus, say, a law shortening existing and future copyright terms to say three years passed tomorrow can not be considered a taking from the private domain (which is otherwise, the obvious objection copyright holders would make to such a law). The hope of this decision is that someday it can essentially be cited in defense of legislation to shorten copyright rems for all works. (“The Supreme Court did not object to lengthening them in Eldred vs. Ashcroft on property rights grounds, so it cannot object to shortening them…”) So, the loss of this case could be viewed in the end as a clever ploy by Prof. Lessig to undermine the notion of copyright as property, and thus lay the ground work for a transformation of U.S. society in the internet age. 🙂

“The Lopez-Eldred link: […]There is no principled way to distinguish them, except to say that between the two, it is the Copyright Clause that more clearly demands judicial enforcement of its limits. … Yet of all the parts of this that will be hardest to accept, it would be a decision that is inconsistent in just this way that would be worst. What possible reason of principle could there be for restricting Congress when it comes to federalism interests, but not when it comes to the public domain, except the ugly reasons? For someone who must teach constitutional law every year, this is the part I fear most.”

What is one supposed to think this means? “[E]xcept for ugly reasons.” Are we supposed to think that that is directed at all 9?

I understand.