This paper is a discussion of the Supreme Court's decision in Eldred v. Ashcroft. In the paper, I argue that the ambiguity at issue in Eldred has little to do with the meaning of the words of the Copyright Clause, but rather raises questions of how aggressive the judiciary should be in policing Congress's exercise of the copyright power.

After exploring the justifications offered for heightened judicial scrutiny in a variety of constitutional contexts, I conclude that exercise of the copyright power implicates none of them. Courts should correspondingly review intellectual property laws for consistency with the Copyright Clause using the most deferential standard of review conceivable, a standard that I distinguish in both form and context from the sort of heightened rational basis review we've grown accustomed to seeing in case like Lopez and Morrison.

Among the most serious flaws in arguments for heightened judicial scrutiny of copyright laws is that they rest on the assertion that courts should impose upon congress a particular definition of progress as that term is used in the Copyright Clause. Such attempts are misguided for two reasons: First, they seek to replace political copyright policymaking with judicial policymaking. But such attempts are inconsistent with the Constitution's preference for representative policymaking, and the Supreme Court's decision to constitutionalize the exclusion of fact from copyrightable subject matter in Feist Publications, Inc. v. Rural Telephone Co. provides a more than adequate reminder that (in addition to its lack of democratic pedigree) the court's copyright policymaking is also substantively lacking. Second, they call upon eighteenth-century copyright policy as understood by the Framers to provide this frozen definition of progress. But the Framers never considered most of the copyright-related questions we face today, and even if they had, it's not clear that we would want to live with the policy choices they would have made.

Thomas B. Nachbar, Judicial Review and the Quest to Keep Copyright Pure, 2 Journal on Telecommunications & High Technology Law 33–72 (2003).