Within the 157 pages of opinions in yesterday’s Supreme Court District of Columbia v. Heller opinion, upholding, as expected Judge Silberman’s opinion for the DC Circuit invalidating the DC total ban in handguns, is the issue of how we interpret constitutional clauses. Because I regard the majority opinion as 64 pages of after-the-fact rationalizing by judicial activists bent on overturning as many precedents as possible, the short answer is we should simply ignore the Court’s opinions as guides to the future, since they are all ad hoc; good, like Bush v. Gore, only for that case. But for those who disagree with this, there is exegesis that parses the Second Amendment into what is called a prefactory clause and an operative clause. The prefatory clause is merely pretty words, “Because a well regulated Militia is necessary to the security of a free State.” The real language is “the right of the people to keep and bear Arms shall not be infringed.”
Heller is of a piece with Eldred v. Ashcroft, where the Constitutional clause in Article I, section 8, clause 8 was also dissed, in that case by Justice Ginsburg’s majority opinion. The Court’s cavalier treatment of the Constitutional language as so much flotsam and jetsam transcends the Justice’s sharp political persusasions.
The Second Amendment is written quite differently than Article I, section, clause 8, because the latter actually begins with grant of the power, the power “to promote the progress of science.” No matter, though, whatever result the Court wants to reach, the troubling language will be regard as a preface or preamble, even to itself.
Article I, Section 8 is a list of 18 clauses containing enumerated powers. Each of the clauses has the same grammatical structure, in which the infinitive “to” prefaces the power granted: for example, the power to lay and collect taxes; to borrow money; to promote the progress of Science, to declare war. Most of these grants are unlimited, for example, “to establish post offices and post roads,” “to constitute tribunals inferior to the Supreme Court.” Only two clauses contain both a grant of power and a limitation thereon, clauses 8 and 15. Clause 8 is the copyright and patent provision. Clause 15 gives power to Congress “to provide for calling forth the Militia, to execute the laws of the Union, suppress insurrections and repel invasions.” The power is to call forth the militia. The limitation on that power is that the militia may be called forth only to execute the laws of the union, suppress insurrections, and repel invasions. If Congress enacted legislation authorizing the militia to be called for other reasons, like to provide members of the President's cabinet with personal bodyguards, that legislation would be an unconstitutional exercise of power under clause 15. Clause 8 works the same way: The power granted Congress is to pass legislation to promote the progress of Science. The limitation on that power is that the legislation may be for limited times, for authors, and only in writings.
The structure of Article I, Section 8 is thus clear, as is that of clause 8: a grant of power (to promote the progress of science) followed by limitations on that power (limited times, authors, writings). No one doubts that the words following “to promote the progress of science” are words of limitation. For example, the Supreme Court held in no uncertain terms in Feist that “author” and “writings” require the presence of originality as a constitutional requirement (limitation). And while there is a vigorous debate about when a term of protection is so long as to be deemed “unlimited,” all agree Congress can only enact a term of protection for “limited Times.” At least some words in clause 8, therefore, act as a substantive limitation on Congress's power. The question is whether “to promote the progress of science” also performs a limiting function, and if so, what kind of limitation.
On what basis would the limited times and originality parts of the clause act as substantive limitations but the “promoting the progress of science” not? One way is to characterize the “promoting the progress of science” language as a “preamble.” That approach absurdly separates one part of the clause from the rest: How can a single sentence of 27 words have, as a preamble to itself, its own first nine words? The purpose in calling the “promote the progress of science” language a preamble is clear enough, though: to render it meaningless, the equivalent of mottos on license plates; that is contrary to the general theory of interpretation that insists on giving every word meaning.
For the structural and grammatical reasons detailed previously, far from being a preamble, “to promote the progress science” is the grant of power itself, like clause 2, “to borrow money on the credit of the United States.” If that clause instead read “to borrow money on the credit of the United States to reduce the national debt,” it could not seriously be questioned that “to borrow money on the credit of the United States” was still the preamble and that “to reduce the national debt” was the limitation. Conversely, if clause 8 read simply “to promote the progress of science,” it could not seriously be doubted that this was a grant of power. Status as a grant of power is not altered by a limitation, in our case “by securing, for limited Times, to Authors the exclusive right to their Writings.” This final language confines Congress's power; it is not the grant of the power itself. The power is to “promote the progress of Science.” Calling that language a preamble is to ignore the entire structure and grammar of Article I, Section 8.
A preamble would be something like “whereas the promotion of the progress of science advances the general welfare, the Congress shall have power to secure to authors the exclusive right to their writings for limited times.” Note that the “whereas” would be a factual conclusion only (the progress of science advances the general welfare) and that the actual power is directly joined to “securing to authors” exclusive rights. Clause 8, however, actually reads very differently: The power is directly joined to “promote progress of science” and there are no factual statements. No clause in Article I, Section 8 has a preamble. See Walterscheid, The Preambular Argument: The Dubious Premise of Eldred v. Ashcroft, 44 Idea 331, 334–337 (2004).
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While of course a substantive debate on the Second Amendment is out of place here, I must comment that I have been nothing short of flabbergasted by the number of times I have already heard the term "judicial activism" applied to the Heller decision.
The Supreme Court has, over the years, invented "penumbral" rights, has read clauses of the Constitution as banning acts which were legally mandated in the time of the Framers, and otherwise generally done what they wanted to do and it has all been labeled as "judicial activism." Now, they read the plain language of the document and apply it, and that too is apparently "judicial activism." I cannot frame a logical definition of the term which consistently covers all these actions.
I personally have made a decision to avoid using the phrase at all. It is a flashpoint phrase, in my opinion, which immediately puts people on the defensive and makes discussion that much more difficult.
M
I know this is beside the point, but you wrote:
/* Clause 15 gives power to Congress “to provide for calling forth the Militia, to execute the laws of the Union, suppress insurrections and repel invasions.” The power is to call forth the militia. The limitation on that power is that the militia may be called forth only to execute the laws of the union, suppress insurrections, and repel invasions. If Congress enacted legislation authorizing the militia to be called for other reasons, like to provide members of the President's cabinet with personal bodyguards, that legislation would be an unconstitutional exercise of power under clause 15.
*/
And while I agree with the parsing (especially given the recent ruling that Congress can only suspend habeas corpus in times of rebellion), I can't help but wonder about many laws dealing with the National Guard. It's my understanding that federal law designates the National Guard as the militia, and that Congress has "called forth the militia" and sent them overseas (to more places than just Iraq or Afghanistan). Even less controversial, Congress has called forth the same militia and for use in national disasters (and even *prohibited* them from enforcing the nation's laws, a la posse comitatus). Would these uses be unconstitutional (assuming they could be challenged, maybe by a state governor)?
I quote: "Because I regard the majority opinion as 64 pages of after-the-fact rationalizing by judicial activists bent on overturning as many precedents as possible,"
So five out of nine Supreme Court Justices are incapable of making reasoned legal arguments and roughly three-quarters of the American public are wrong in what they think the Second Amendment says?
And why would anyone in the late eighteenth century have wanted to deny states the right to an armed militia by disarming their soldiers? Citizens soldiers connected with state and local militia were virtually the only army we had back then and by no stretch of the imagination did a weak federal government have the power to disarm them, even if in some fit of madness it had the desire. Do I detect a note of bitterness as yet another liberal agenda bits the dust?
And what about the roughly 150 years after the Bill of Rights were issued during which the only people advocating major gun control policies were Democrats intent on ensuring that no black person could ever own a gun? That, I'm told, is one reason why Justice Taney argued that Dred Scott should be denied the rights of citizenship. It sounds suspiciously like, given the chance, many liberals would reduce all of us to the status of 19th century slaves.
To understand the mindset behind modern liberalism, I tell friends, you have to go back to nineteenth century England. There a rising bourgeoise was upset that most political power was concentrated in the hands of a landed nobility, a form of oligarchy their liberalism opposed.
But as H. G. Wells would observe, about 1900 liberalism would began to split into two groups. One group genuinely wanted everyone less restricted by government. Then they were called individualists, and today they're the libertarians. They may go too far in what they want, but they do treat people as if they can run their own lives.
The other group Wells called "State Liberals." They had no problem with the control the State had over individual lives, in fact they wanted that control to increase. They merely wanted that control to be in their own hands and suiting their own agenda. It is from them that modern liberalism is the US is descended, hence all the "for me but not for thee" attitudes they display. Recall the affluent liberals on the two coasts who travel by private jet but want the masses to ride buses and who sent their kids to pricey private schools but want ordinary folk stuck in dreadful public schools. Liberals are the New Nobility, only feigning concern for those they want to disempower.
It would never, in a thousand years, occur to a liberal lawyer such as Patry that the American public just might be on to something when, despite several decades of media propaganda, they still insist that the Second Amendment means they can keep a gun in their own homes ready to be used to protect their family. They are the peasants, he is the Liberal Lord. He need not take them or even those who champion their opinions seriously.
--Michael W. Perry, editor of Eugenics and Other Evils by G. K. Chesterton.
The problem, of course, of "promoting the useful arts and sciences", is that it's a lofty goal with no bright-line definition. The copyright cartel, and the pantheon of patent trolls hiding under the bridges to innovation, may well argue that anything which "encourages" creativity meets the definition, even if that encouragement makes it horribly expensive for the public to enjoy the fruits of the creativity. In other words, a long statutory monopoly with few exceptions.
Others, of course, argue that promotion of the useful arts and sciences is not really achieved until something becomes part of the public domain; and that a limited monopoly on a creative work or design is a necessary evil to reach that goal--and that granting inventors and authors any more than necessary to stimulate their muses goes beyond "promoting the useful arts and sciences".
Personally, I tend more to the latter side of the fence, and am certainly opposed to any term extension or other change to the copyright regime which delays the public availability of an extant work. Like it or not, though, the courts will frequently defer to the legislature as to whether or not a piece of legislation does in fact have its intended purpose, unless there is clear and compelling evidence to the contrary. So if Congress things that the Sonny Bono act, or some other legislation, furthers that goal, you have a large burden of proof to convince the justices otherwise.
In some sense, that's the way things should be--the appropriate reward for artists and inventors should be hashed out in Congress, who ought consider both interests and reach a reasonable balance. The problem of course, as Larry Lessig has noted (prompting a resulting shift in his advocacy) that it's the copyright cartel who has Congress' ear; other than a few congressmen like Rep. Boucher, most subscribe to the theory that what's good for Hollywood is good for America. And while the courts can and do perform a useful function in restraining the influence of special interests on the body politic; courts are too subject to capture by special interests--and an activist Court so held captive is a dangerous thing.
Thanks for the insightful--and troubling--extension of Heller's interpretive strategy to the IP clause. Allow me to suggest, however, that the operative limiting clause includes "Science and Useful Arts" (not just the former).
Yes, I know that many commentators argue that the parallelisms of Art. I, s. 8, cl. 8 run all through the passage. In that, though, I think they err. It makes more sense to start the parallelism only at "Authors," leaving the "Science and Useful Arts" as well as "limited Times" to apply to both copyrights and patents.
Of course, if you are right that Heller has gutted any limiting function of that preamble, the point--already a mere quibble--becomes completely moot.
As one who likes to think of himself as a Constitutional textualist AND a supporter of drastic copyright reform, I see numerous flaws in your thinking.
Let's start with the substantive differences between the copyright clause and the 2nd Amendment. Both have a preface, as you point out. However, there is a crucial difference - even if you accept that both prefaces act as limitations on the right.
The copyright clause AFFIRMATIVELY grants the GOVERNMENT the power of copyright, subject to the preface limitation of promoting the progress of science and the arts.
The wording of the 2nd Amendment clearly understands that it doesn't affirmatively grant people anything. It recognizes an already PRE-EXISTING right of PEOPLE to bear arms. Unlike the Copyright clause, the Constitution doesn't GRANT this right, it simply pledges not to take it away. There is a big difference between an affirmative grant of power to the government and a pledge not to take away natural and existing rights of the people.
As the Heller court itself recognized (or at least implied) when it affirmed the Miller decision, the 'militia' preface still acts as a substantive limiter on people's rights - allowing reasonable regulations on the kinds of weapons that can be owned, and preventing them from being carried by certain people on to certain locations, etc. But since it remains an affirmative right of the PEOPLE that pre-dates the Constitution, it cannot be extinguished completely. D.C.'s laws effectively extinguished the right completely. That is why it was struck down. But the 'militia' preface to the 2nd Amendment will still allow reasonable regulations to stand (as are found in the majority of jurisdictions in the country).
So your attempts to label the majority as "judicial activists" is completely specious. Ask yourself: Why didn’t the Founding Fathers place the issue of gun rights under Article I Section 8? They could have said: “Powers Granted To Congress – To promote the well being of militias by providing citizens the power to keep and bare arms.” Had the gun issue been framed that way, it is clear that it would be interpreted differently. Hopefully, you can understand why your reasoning is faulty here then.
Now let me explain why there is no inconsistency with this approach regarding the Copyright Clause. Both you and the Eldred court have managed to completely miss the mark on copyright law because you both refused to follow the plain text of the Constitution. The court’s mistake has left us with no practical limitations on copyright terms, and your own mistake leaves us with no real objective basis on how to limit it.
Like the 2nd Amendment, there is a prefatory clause (“To promote the progress of science and useful arts”), and an operative clause (“by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”).
There is a very clear limitation on the copyright power that is plainly stated here. Unfortunately, you keep looking for it in the wrong place. The prefatory clause doesn’t say anything substantive, because one can always rationalize the notion that giving unlimited monopolies is a way to promote the science and arts. I don’t believe that such a policy would promote it as such, but Congress could disagree and determine that under a ‘rational basis’ review (and has seemingly come close to doing so). They could even rationalize the notion that by retroactive extending copyright terms after the fact, it would promote science and the arts because it would encourage future creators to believe that their works could get more protection in the future if they merely grease the right palms. With this belief, they might be induced to create more works than they otherwise would. Again, I don’t think this would be the case, but a Congress working under a deferential ‘rational basis’ standard could certainly disagree. So your reliance on the prefatory clause as a substantive limiter on copyright is on shaky ground.
You also can’t rely on the “limited times” phrase as a substantive limiter because it gives no guidance as to who determines the actual limits – or how. As copyright maximalists correctly argue, even a trillion years is still a “limited” time since it is not in fact infinity. It may be older than the age of the known universe, but it is still a “limited” time.
The Constitutional limitation on copyright is so plain and simple that you have seemingly devoted your entire career to ignoring it Mr. Patry. It is this: The copyright exclusive rights of creative works to “authors and inventors”. In other words, the length of copyright is limited to the life of the creator – NOT the creator AND his heirs (a false reading of law which you have foolishly embraced). Congress can limit the length of copyrights to be shorter than the life of the author, but cannot extend the right beyond it. This is taken directly from the Constitution’s text. Congress has ignored it, the Supreme Court has ignored it, Larry Lessig has ignored it, and you have ignored it. And yet, it is there as plain as day.
So who is being the activist here? Those who read the text at face value? Or the IP legal community that creates legal fictions by declaring perpetual corporations to be considered “authors” of works and by inserting the invisible phrase “and whichever heirs live beyond 90 years of the author’s life” into the Copyright clause?
An issue you haven't addressed is that 2nd Amendment and section I/8/8 are opposite in intent. The 2nd Amendment is an explicit limit on the Government's power. It denies the government the ability to do something. I/8/8 is a grant of power - it authorizes the government to do things. Regardless of how you interpret the first part of the sentence, the Constitution specifically forbids the government from infringing on the right to keep and bear arms. Even if you suppose that the reason for that prohibition is no longer valid, it doesn't remove the words from the Constitution. A judicial ruling that it's OK to infringe upon those rights would still be in direct violation of the words as written. I/8/8, however, is a grant of power. A court ruling which limited the ways in which the government may secure the rights of inventors would not be in violation of the wording of the Constitution. Congress would still have the power to secure those rights, just not unlimited power.
On the activist part. First, I reject the charge that I am a liberal, meant by Mr. Perry to be a slur, not a description. Perhaps that is part of his eugenics plan. I am a registered Independent and have voted for Democrats, Republicans, and Independents. He knows absolutely nothing of my politics and is simply a bigot, and pompous one at that: who signs a blog comment by describing yourself as the author of a book you write?
Mr. Perry apparently believes that conservatives can't be activists, I guess because they are the true voice of the people (unlike unpatriotic liberals who hate the people and American values). Conservative judges I guess merely "find the law," in this case finding it contrary to an earlier Supreme Court opinion. Earl Warren was an activist par excellence, and so is Scalia.
There are many other examples besides Heller of judicial activism under the Rehnquist-Roberts courts: most of the sovereign immunity cases, where the court all but asked people to file cert. petitions, the right to life cases, Bush v. Gore, and Raich, to name only a few.
Use of the phrase judicial activist never seemed to bother conservatives as applied to those they disagreed with -- a category that included almost any judge who is not a member of the Federalist Society. But, when the description is used for conservative judges, why, then its a slur, its wrong, it is being used by those "bitter" at a liberal agenda biting the dust, as Mr. Pery said. Larry Tribe is as liberal as one would find, and his interpretation of the Second Amendment is probably in line with Mr. Perry's and the majority's. I have other liberal friends who also agree with the majority. So no, Mr. Perry, the issue has nothing to do with liberals versus conservatives, who are inconveniently on both sides of the issue, regrettably for your tiny good versus evil mentality.
My post was about a different issue altogether, which you missed, not surprisingly.
Justin, your plain as day analysis is plain only to yourself, which is why everyone else has missed it. Those who think everyone else in the world is wrong but them should stop drinking their own Kool-aid.
Whether the cases discussed here are activist or not, Prof. Patry does illustrate Heller and Eldred's curious characterization of language as operative or preambulatory.
Jurists cannot join opinions that characterize the Constitution into "phrases" and "phrases that matter", and yet still hold themselves out as an "originalist".
The merits of originalism aside, there is an enormous cognitive dissonance between that doctrine and the reasoning of these cases.
Eat beef if you like; just don't shovel down a Big Mac and then tell me you're a vegetarian.
For that reason, I expect constitutional historians will look back at Eldred as the beginning of the end of strict construction, and Heller continues that trend. [There is some irony in that, since the constituency supporting strict construction is likelier to be satisfied with the outcome of Heller.]
There may still be cases of "fairweather originalism", but a doctrine that is embraced when convenient and discarded when inconvenient is no doctrine at all.
Mr. Patry - I'll withdraw the comment "plain as day". Now that I have done so, do you have any reaction to the analysis that the text of the Constitution only confers copyrights to the actual authors of creative works and not their heirs?
Bless you last Anonymous. Contrary to Mr. Perry's political ranting, my purpose was to point out the diaparate ways the Court approaches constitutional language and I was scrupulously even handed in referring to both Eldred (Justice Ginsburg) and Heller (Justice Scalia).
Justin, glad to hear you have withdrawn the Kool-aid. There is nothing in "limited Times" that is tied to the author's life, so I don't see how yours is a textual reading. Of course, it wasn't until the 1976 Act that we based term on the life of the author.
Your other point may be that authors means authors and not their heirs, and that is rooted in the constitutional language, but the Court has repeatedly construed "authors" to refer not any particular class of person, but rather to the act of creating an original work. Authors are those who create original works; those who create unoriginal works may be creators in a colloquial sense but they are not authors in the constitutional sense. A final point is that from the first act, in 1790, Congress has permitted copyright to go to heirs, and here in many contexts, the Court has given great deference to acts passed by the first Congress since may of its members had been members of the Constitutional Convention.
Marcwphoto, I see the wisdom in your avoiding "judicial activism," although it exists across the political spectrum.
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