More on Eldred
Lawrence Lessig provides a much more thoughtful post-game analysis than Reynolds has offered us. Ultimately, however, I also disagree with his conclusion and his position.
Lessig correctly observes:
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."
I agree that Congress does not have unfettered discretion on matters as to which it has been granted express authority -- its enumerated powers. But the authority of courts must not be unfettered, either. There must be a standard to be used by courts in placing limits on Congress' actions, and there must be affirmative authority for the courts to act. That authority can only come from the Constitution. The courts do not have the warrant to declare a particular item of legislation invalid simply because Congress has come to a different conclusion in weighing the competing interests than the judges would have reached. As the majority opinion noted:
The CTEA reflects judgments of a kind Congress typically makes, judgments we cannot dismiss as outside the Legislature’s domain.
The standard that the Court followed here was a familiar one -- it had to determine whether there was a rational basis for the decision made by Congress. That is a rather low and unexacting level of review, but it is the proper one, given the absence of any countervailing constitutional consideration or interest.
The Court did indeed find rationality behind the decision, on a number of grounds. One in particular was the fact that the adoption of a 70-year term brought the United States within the reach of the European Union's rules on reciprocity:
A key factor in the CTEA’s passage was a 1993 European Union (EU) directive instructing EU members to establish a baseline copyright term of life plus 70 years and to deny this longer term to the works of any non-EU country whose laws did not secure the same extended term. By extending the baseline United States copyright term, Congress sought to ensure that American authors would receive the same copyright protection in Europe as their European counterparts.
Lessig protests that the old "rational basis" standard has given way to a higher standard in recent years:
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.
But the cases that he refers to, Lopez and Morrison, both involved an overreaching exertion of authority by Congress which conflicted with the authority of state legislatures. Those cases involved, respectively, the Gun-Free School Zones Act and the Violence Against Women Act. The Court found that the Congress simply did not have the authority to legislate in areas that are properly the object of the police powers of the states. We can engage in some argument as to whether the "new Federalism" -- the Court's new recognition of state authority as a Constitutional restraint on Federal action -- is a legitimate and justified principle of jurisprudence, but it is in fact a principle. It is not a fleeting figment of the judicial imagination.
As I pointed out in the previous post, the conflict between Federal and State authority was simply not involved in the Eldred case. The states have no authority at all when it comes to copyright protection.
Lessig also reasserts his central theme:
. . . 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.”
I don't read the Court's opinion in Eldred as giving unfettered discretion to Congress, nor do I see it granting Congress the right to "perpetually extend copyright terms". I read it simply as upholding the decision that Congress made in 1998. That is the narrow question that was before the Court:
As the Court of Appeals observed, a regime of perpetual copyrights "clearly is not the situation before us." 239 F. 3d, at 379. Nothing before this Court warrants construction of the CTEA’s 20-year term extension as a congressional attempt to evade or override the "limited Times" constraint.
If Congress had voted in 1998 to adopt a 250-year copyright term, I daresay that the Court would have engaged in quite a different analysis.
2:22:55 PM 
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