Dealing with Old Father William, or Moving from Constitutional Text to Constitutional Doctrine: Progress Clause Review of the Copyright Term Extension Act

Malla Pollack, American Justice School of Law

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Abstract

The author suggests a textual approach to the choice of review standards for statutes enacted purusant to the so-called Intellectual Property Clause, which is more properly named the Progress Clause. Turning to text of the Constitution s relatively unproblematic because the Progress Clause contains unusually detailed constitutional text. Furthermore, what little the Court has stated about the fundamental goals of the Clause matches the author's reading of its text. Any approach based on the drafting or ratification discussions stumbles on the thinness of the record, as well as the record's possible unreliability. The text supports a standard of review higher than toothless rational basis review, one close to the congruence and proportionality standard chosen for Fourtheenth Amendment enforcement statutes starting with City of Boene. This article was written for a symposium on the then-undecided case of Eldred v. Ashcroft.