ELDRED VS. ASHCROFT: "Every time someone cuts away a part of the U.S. Constitution¹, a little piece of me dies; I'm very American in that regard." That's Dirk Deppey today, bringing me the news that the Supreme Court--by a motherfreaking 7-2 margin--has decided against Eldred and for Ashcroft. What a bunch of schmucks. So I go over to Instapundit to get the link to the Lessig blog and find Glenn's already got an opinion posted:

The Court’s strict constructionists believe that Congress should be held to the powers spelled out in the Constitution. By limiting the government to the powers enumerated in the Constitution, they believe, we reduce opportunities for government corruption and preserve the greatest amount of individual freedom. That kind of thinking led a lot of people to believe that the patent and copyright power of Congress should be read narrowly: when Congress acts on these matters, it should have to act in a way that would be clearly calculated to promote the progress of science and the useful arts, and that the monopoly created by the patent and copyright laws should be limited in time.

In passing the Sonny Bono Copyright Extension Act, Congress drastically extended copyrights, including some dating back when my daughter’s great-grandmother was born. Many people thought this was unconstitutional: how can nearly a century of copyright protection be considered a “limited time,” — especially when Congress keeps extending it? And how can rewarding people who have been dead for decades produce more creativity?

The majority opinion by Justice Ginsburg largely ignored those questions, leaving such issues to Congress’s discretion. (Though the influence of Big Media money on Congress suggests that the Framers were on to something where the corruption angle is concerned.) More strikingly, all the Justices who have stood for limiting Congress’s powers in other recent cases (such as United States v. Lopez and United States v. Morrison) sided with her, calling their commitment to limited government into question. It was left to the unlikely duo of Justice John Paul Stevens and Justice Stephen Breyer to write, in dissent, about the importance of limited Congressional power. While many people are unhappy with the Intellectual Property implications of this decision, its most striking aspect is the strict constructionists’ abandonment of the principles of limited government. I predict that this will come back to haunt them in future cases.

Larry Lessig sounds more disappointed at this point than concerned with what the decision meant and whatnot--as you would expect:

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 these four don’t strike laws of Congress on the ground of this “principle of enumeration.”

These four justices were consistent with their principles in this case. Indeed, three of them wrote opinions in this case. Justice Ginsburg wrote the majority. She has never been a fan of the enumeration principle. She didn’t even mention it in her opinion. Justices Stevens and Breyer wrote dissents. They each had reasons why they believed Congress had gone too far. But neither invoked this principle of enumeration.

Stupidly, as I see now, I thought the hardest group on this Court to convince of our view would be these four justices. Deference is their ordinary mode. Deference was the strongest argument against us. So I was very happy to read the extremely strong opinions by two of these four, each for different reasons showing just why Congress had gone too far.

But again, missing from both opinions was the argument that I believed would win this case: That if there is a principled reason why Congress’s power is limited in the context of the commerce clause (and elsewhere), then that reason applies even more strongly in the context of the copyright clause. As we said over and over again, if you agree with the line of cases that Chief Justice Rehnquist is most famous for, then you must agree that the Copyright Clause restricts retroactive extensions. As the Chief Justice taught in the case of Lopez, if an interpretation of Congress’s power yields the conclusion that Congress’s power is unlimited, it is an improper interpretation. Yet that is precisely what the government conceded its interpretation did.

Thus, again, it was no surprise this argument was absent from Justices Stevens and Breyer’s opinion. Nor was it a surprise that it was absent from Justice Ginsburg’s opinion. She too has consistently argued that Congress’s discretion is broad. Her opinion is an excellent opinion for one who believes that the Supreme Court should defer to Congress’s judgments except where they are wholly irrational. “Irrational” in this context means that there is no possible set of facts that would supply the law with a reason. And as we have said from the start, we do not believe the Bono Act fails that test.

The puzzle in the case was the silent 5 — the 5 justices who have consistently argued that Congress’s power is limited; that enumerated powers must be read in a way that makes sense of those limits. It was my judgment that those justices would apply the same principle to the Copyright Clause, or at least explain why they did not. And ever since the argument on October 9, I have struggled to imagine how they could ever write an opinion that would distinguish commerce from copyright.

It had never even crossed my mind that these 5 justices would simply duck the issue. By assigning the opinion to a justice who has consistently rejected that principle (Justice Ginsburg), the Chief Justice avoided any need to show why his principle of enumeration applied to some clauses of Article I, sec. 8, but not others. And as there was no reason for the dissent to mention the argument, the case gets decided without the central argument that we had advanced even being discussed. It was Hamlet without the Prince.

Your two dissenters were Justices Stevens and Breyer. Stevens said:

Writing for a unanimous Court in 1964, Justice Black
stated that it is obvious that a State could not "extend the
life of a patent beyond its expiration date," Sears, Roebuck
& Co. v. Stiffel Co., 376 U. S. 225, 231 (1964). As I shall
explain, the reasons why a State may not extend the life of
a patent apply to Congress as well. If Congress may not
expand the scope of a patent monopoly, it also may not
extend the life of a copyright beyond its expiration date.
Accordingly, insofar as the 1998 Sonny Bono Copyright
Term Extension Act, 112 Stat. 2827, purported to extend
the life of unexpired copyrights, it is invalid. Because the
majority's contrary conclusion rests on the mistaken
premise that this Court has virtually no role in reviewing
congressional grants of monopoly privileges to authors,
inventors and their successors, I respectfully dissent.

And Breyer:

The Constitution's Copyright Clause grants Congress
the power to "promote the Progress of Science . . . by se-
curing for limited Times to Authors . . . the exclusive Right
to their respective Writings." Art. I, §8, cl. 8 (emphasis
added). The statute before us, the 1998 Sonny Bono Copy-
right Term Extension Act, extends the term of most ex-
isting copyrights to 95 years and that of many new copy-
rights to 70 years after the author's death. The economic
effect of this 20-year extension--the longest blanket ex-
tension since the Nation's founding--is to make the copy-
right term not limited, but virtually perpetual. Its pri-
mary legal effect is to grant the extended term not to
authors, but to their heirs, estates, or corporate succes-
sors. And most importantly, its practical effect is not to
promote, but to inhibit, the progress of "Science"--by
which word the Framers meant learning or knowledge, E.
Walterscheid, The Nature of the Intellectual Property
Clause: A Study in Historical Perspective 125-126 (2002).
The majority believes these conclusions rest upon prac-
tical judgments that at most suggest the statute is unwise,
not that it is unconstitutional. Legal distinctions, how-
ever, are often matters of degree. Panhandle Oil Co. v.
Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928)
(Holmes, J., dissenting), overruled in part by Alabama v.
King & Boozer, 314 U. S. 1, 8-9 (1941); accord, Walz v. Tax
Comm'n of City of New York, 397 U. S. 664, 678-679 (1970).
And in this case the failings of degree are so serious that
they amount to failings of constitutional kind. Although
the Copyright Clause grants broad legislative power to
Congress, that grant has limits. And in my view this
statute falls outside them.

I will end with something from the Lessig blog:

One friend offered a reason in an email of condolence. Those 5, he said, save their activism for issues they think important. They apply their principle to causes they think important. Protecting states is a cause they think important. Protecting the public domain is not.

By what right? By what g.d. right? These five justices have all the right in the world to have their own principled way of interpreting the constitution. Long before this case, I had written many many pages trying to explain the principle I thought inherent in the decisions of these five justices. I have spent many hours insisting on the same to ever-skeptical students. But by what right do these 5 get to pick and choose the parts of the constitution to which their principles will apply?

Like Dirk said--bastards.

UPDATE: Siva Vaidhyanathan has tons of stuff on this.