4 ms·

You can't expect a constitutional amendment to completely nullify half of a fairly clear clause of the constitution (Article 1, Section 8, Clause 8) just becaus

You can't expect a constitutional amendment to completely nullify half of a fairly clear clause of the constitution (Article 1, Section 8, Clause 8) just because an activist interpretation of that amendment might go against it. That's not how constitutional amendments work.

jjeaff 6y ago
That is how amendments work. They amend or change the constitution. But maybe that's not what you meant. I agree there is little chance of changing that particular clause.
- samatman 6y ago
  The 21st Amendment provides a clear and succinct model of what it looks like to abrogate a prior part of the Constitution. If the 1st Amendment were intended to do so to copyright, someone would have noticed by now.
- FemmeAndroid 6y ago
  Oh, I don't disagree that they change or amend the constitution. My point was that you can't read into a theoretical ramification of an interpretation of an amendment to overrule the plain meaning of the text of the constitution. Edit: I’m a little zonked out on cold meds, but I believe if I were to go back to my legal days, the relevant canon of construction in statutory interpretation is ‘repeal by implication,’ if anyone’s curious about this idea of how we square two ideas that may be partially opposed. The basic principle is that courts will be unlikely to repeal something just because another part of the law implies it’s no longer valid. IIRC there’s some thought that subsequent laws in subsequent legislative sessions carry more weight towards a repeal, so that would be in favor of repeal in the case of the amendment. But it’s still pretty uncommon, and highly discouraged. And in this case, I think when you have a plainly written passage enshrining the right of congress to enact Copyright-esque laws, you’d need some clear language to remove the clause. The 21st is a good example, but you wouldn’t need to be that explicit. Pretty unrelated, but for those looking to argue about IP law on a constitutional basis, look at the congressional authority to enact trademark legislation. Unlike Copyright and Patent, which is an enumerated right, federal trademark law (the Lanham Act) is all based on the commerce clause. The commerce clause just being a broad clause on interstate commerce. It’s much weaker, and fun to pay attention to since the strength of the commerce clause waxes and wanes with the Supreme Court. Anyways, I hope someone enjoyed this cold medicine fuled aside.
  - aYsY4dDQ2NrcNzA 6y ago
    That’s interesting about copyright law. Please pass along my compliments to your cold medicine manufacturer.
  - breck 6y ago
    > I hope someone enjoyed this cold medicine fuled aside. I very much did, thank you. I hadn't heard the term "repeal by implication" and now you've got my curiosity peaked and have a new wikipedia hole to go down. FWIW, my argument is a loser. Never in a hundred years do I think it would win in court, and I think a new clear amendment will be necessary, but that's where I'd make my stand given the current laws. (I'm resigned to think this might not be a hypothetical b/c I can only espouse SciHub so many times before some angry bear comes after me—though luckily there are a lot braver souls out there peacefully doing a lot more than mme leaving forum comments). :)
chordalkeyboard 6y ago
I think the gp’s interpretations are a bit fanciful, but its fairly clear that amendments can indeed nullify parts of the constitution and your opinion that a given interpretation is “activist” isn’t enough to dismiss that opinion.

jjeaff 6y ago

That is how amendments work. They amend or change the constitution. But maybe that's not what you meant. I agree there is little chance of changing that particular clause.

samatman 6y ago
The 21st Amendment provides a clear and succinct model of what it looks like to abrogate a prior part of the Constitution. If the 1st Amendment were intended to do so to copyright, someone would have noticed by now.
FemmeAndroid 6y ago
Oh, I don't disagree that they change or amend the constitution. My point was that you can't read into a theoretical ramification of an interpretation of an amendment to overrule the plain meaning of the text of the constitution. Edit: I’m a little zonked out on cold meds, but I believe if I were to go back to my legal days, the relevant canon of construction in statutory interpretation is ‘repeal by implication,’ if anyone’s curious about this idea of how we square two ideas that may be partially opposed. The basic principle is that courts will be unlikely to repeal something just because another part of the law implies it’s no longer valid. IIRC there’s some thought that subsequent laws in subsequent legislative sessions carry more weight towards a repeal, so that would be in favor of repeal in the case of the amendment. But it’s still pretty uncommon, and highly discouraged. And in this case, I think when you have a plainly written passage enshrining the right of congress to enact Copyright-esque laws, you’d need some clear language to remove the clause. The 21st is a good example, but you wouldn’t need to be that explicit. Pretty unrelated, but for those looking to argue about IP law on a constitutional basis, look at the congressional authority to enact trademark legislation. Unlike Copyright and Patent, which is an enumerated right, federal trademark law (the Lanham Act) is all based on the commerce clause. The commerce clause just being a broad clause on interstate commerce. It’s much weaker, and fun to pay attention to since the strength of the commerce clause waxes and wanes with the Supreme Court. Anyways, I hope someone enjoyed this cold medicine fuled aside.
- aYsY4dDQ2NrcNzA 6y ago
  That’s interesting about copyright law. Please pass along my compliments to your cold medicine manufacturer.
- breck 6y ago
  > I hope someone enjoyed this cold medicine fuled aside. I very much did, thank you. I hadn't heard the term "repeal by implication" and now you've got my curiosity peaked and have a new wikipedia hole to go down. FWIW, my argument is a loser. Never in a hundred years do I think it would win in court, and I think a new clear amendment will be necessary, but that's where I'd make my stand given the current laws. (I'm resigned to think this might not be a hypothetical b/c I can only espouse SciHub so many times before some angry bear comes after me—though luckily there are a lot braver souls out there peacefully doing a lot more than mme leaving forum comments). :)

chordalkeyboard 6y ago

I think the gp’s interpretations are a bit fanciful, but its fairly clear that amendments can indeed nullify parts of the constitution and your opinion that a given interpretation is “activist” isn’t enough to dismiss that opinion.