Intellectual Property and Constitutional Norms

101 Pages Posted: 26 Nov 2003

See all articles by Thomas Nachbar

Thomas Nachbar

University of Virginia School of Law


The paper examines a question of general interpretive significance about the relationship between enumerated powers within the particular context of intellectual property. Specifically, the paper asks whether Congress can avoid the restrictions on its intellectual property power (such as the "limited times" requirement or the prohibition against protecting facts and consequently electronic databases) by resorting instead to other Article I powers, most notably the Commerce Clause. It is my position that the Intellectual Property Clause stands as no barrier to legislation passed pursuant to another Section 8 power.

Because of the nature of a government of enumerated powers, it is impossible as a matter of text or structure to determine whether limits on one Article I power apply to the others. A review of precedent confronting overlapping Section 8 powers in other contexts leads one to a more nuanced approach: to identify the values underlying the different Section 8 restrictions and whether they are worthy of general application - whether they represent constitutional norms. What follows is an attempt to identify such a norm in the Intellectual Property Clause, as reflected by the First Amendment, present in Supreme Court precedent, or demonstrated by the history surrounding the Intellectual Property Clause's inclusion in the Constitution.

Once one closely examines the history of intellectual property and American trade regulation, it becomes clear that no such generally applicable norm is at work in the limits on Congress's intellectual property power. The economics of trade regulation, demonstrate that, far from unique, the intellectual property power is economically indistinguishable from other forms of trade regulation - any benefit conferred by means of an exclusive right could be conferred in some other way, such as through taxation or industry regulation. Furthermore, finding such a limit would require a rejection of our modern understanding of the commerce power and would turn the concept of enumerated powers on its head. In the end, "exclusive rights" are merely another form of regulation that Congress may, and frequently does, use to confer economic rents on favored special interests. The Constitution, it will come as no surprise, offers very little protection against rent-seeking.

Suggested Citation

Nachbar, Thomas, Intellectual Property and Constitutional Norms. UVA School of Law, Public Law Working Paper No. 03-16, Available at SSRN: or

Thomas Nachbar (Contact Author)

University of Virginia School of Law ( email )

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