Eldred and Lochner: Copyright Term Extension and Intellectual Property as Constitutional Property

Since the ratification of the Constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. Yet, until very recently, this Clause and its meaning received little attention from constitutional law scholars. In a short period of time, however, as intellectual property has come to play a dramatically larger role in the national economy, scholars have begun to focus on the Constitution's Copyright Clause. The purpose of this essay is to develop the case for deferential review and, at a deeper level, to offer a new paradigm for understanding the Copyright Clause. The essay's basic insight is that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property.