An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright

58 Pages Posted: 26 Sep 2015 Last revised: 15 Dec 2015

See all articles by Donald P. Harris

Donald P. Harris

Temple University - James E. Beasley School of Law

Date Written: 2015


Congress is again on the verge of acting in enacting copyright legislation. This will likely include extending copyright protections in time and scope. Over the past four decades, Congress has stretched and expanded copyright protections, and then stretched and expanded copyright protections yet again, each time more aggressively than the last.

This poses a problem. The problem is not that Congress will act – even as dysfunctional as our current Congress is copyright legislation will move forward. Nor is the concern that we do not know what Congress will do. History has shown that Congress will continue expanding copyright’s scope. The concern is that the constitutional law in this area is terribly unclear. A faithful legal counsel for Congress could hardly provide solid advice on how one might construe the Constitution’s Copyright Clause, or whether Congress’s action is constitutional.

The reason for this is the Supreme Court’s lack of guidance. The Court’s two major, recent Supreme Court cases dealing with the constitutionality of congressional action with respect to copyright extension and expansion are Eldred v. Ashcroft and Golan v. Holder. In terms of providing clarity to the constitutionality of congressional action, neither is at all satisfactory.

In particular, in both Eldred and Golan the Court's logic shows no sign of indicating a limit – as ever more aggressive congressional action is upheld, and upheld summarily. And yet the Court insists, as it must, that in fact there is a limit. The Copyright Clause’s constitutional text could not be clearer on this point, and the Court (unclearly and seemingly ineffectually) promises that there is a limit. But the Court has given no indication of what that limit might be, nor has the Court provided any doctrinal framework that one would use to someday draw a line.

This Article takes seriously the Court's (and the Constitution's) promise that there is, and must be, a limit on congressional power in this field. This Article takes seriously the Court's decision in Eldred and Golan that established doctrines concerning Fourteenth Amendment Section 5 power (congruent and proportional) and First Amendment heightened scrutiny are not acceptable. Yet the Court's recent decisions also show that "rational basis" scrutiny cannot possibly do the job.

Thus, this Article proposes a different doctrinal framework, from a field that at a superficial level might seem extraordinarily different: the dormant Commerce Clause. Analogizing copyright doctrine to dormant Commerce Clause doctrine would yield strict scrutiny with respect to a very narrow band of possible congressional action. For a much wider range of congressional action, however, such an analogy would imply a kind of balancing analysis that has been woefully absent from the Court’s recent copyright cases.

This approach may seem novel or even radical. But the predictability of new congressional action, combined with the Supreme Court's current set of doctrinal dead ends, requires something different. And the many functional comparisons between copyright and dormant Commerce Clause doctrines suggest that this framework might be just what the Court, and our society, need most.

Keywords: Constitutional, Dormant Commerce Clause, Copyright, Berne Convention, copyright term, Eldred, Golan, intellectual property

JEL Classification: K30, K39

Suggested Citation

Harris, Donald Patrick, An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright (2015). Kentucky Law Journal, 2015, Temple University Legal Studies Research Paper No. 2015-47, Available at SSRN:

Donald Patrick Harris (Contact Author)

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122

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