Implied Limits on the Legislative Power

The Intellectual Property Clause as an Absolute Constraint on Congress

Professors Heald and Sherry argue that the language of Article I, Section 8, Clause 8, the Intellectual Property Clause, absolutely constrains Congress’s legislative power under certain circumstances. Their analysis begins by looking at other limits on the legislative power that the Court has found in the Bankruptcy Clause, the Eleventh Amendment, the Tenth Amendment, and Article III. Then by examining the history and structure of the Intellectual Property Clause and relevant precedent, they distill four principles of constitutional weight-the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the Public Domain Principle. These principles inform the Court’s jurisprudence in cases involving the Intellectual Property Clause, acting as implied and absolute limits on Congress’s exercise of its legislative power. Finally, Professors Heald and Sherry apply these principles to recent pieces of legislation and evaluate the constitutionality of several proposed and recently enacted laws. * Allen Post Professor of Law, University of Georgia. ** Cal Turner Professor of Law and Leadership, Vanderbilt University.

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