lessig on eldred and the five

[Brad DeLong]

>larry lessig explains his distress at losing the eldred case.
>
>---
>  I have spent more than a decade of my life teaching constitutional 
>law-and teaching it in a particularly unfashionable way. As any of 
>my students will attest, my aim is always to say that we should try 
>to understand what the court does in a consistently principled way. 
>We should learn to read what the court does, not as the actions of 
>politicians, but as people who are applying the law as principle, in 
>as principled a manner as they can. There are exceptions, no doubt. 
>And especially in times of crisis, one must expect mistakes. But as 
>OJ's trial is not a measure of the jury system, Bush v. Gore is not 
>a measure of the Supreme Court. It is the ordinary case one needs to 
>explain. And explain it as a matter of principle.
>
>I'm not sure how to do that here. I don't see what the argument is 
>that would show why it is the Court's role to police Congress's 
>power to protect states, but not to protect the public domain. I 
>don't see the argument, and none of the five made it. Nor have any 
>of the advocates on the other side identified what that principle is.

The principle is very simple. A "strict constructionist" is not 
someone who construes the Constitution strictly to make our 
government one of limited powers. A "strict constructionist" is--as 
Rehnquist wrote back at the 1970s--somebody who is hostile to civil 
rights plaintiffs and hostile to criminal defendants. The point of 
saying that the Commerce Clause is only a limited grant of power to 
Congress is to roll back first the Great Society and then the New 
Deal. There is no similar point to saying that the Copyright Clause 
is a limited grant of power. So why bother to say it?

Why is this so hard for Larry Lessig to understand?

Brad DeLong