Constitutional Copyright and the Meaning of Postponed Matters

Authors

• Justin Hughes, Loyola Law School Los Angeles

Document Type

Article

Publication Date

9-7-2026

Citation / Publisher Attribution

74 J. Copyright Soc'y U.S.A. ___ (forthcoming)

Abstract

The U.S. Constitution became an inspiration for the writing of organic laws all over the world; its provisions were often copied, its ideas even more often emulated.  That includes Article I, Section, 8, Clause 8 – the mysterious 27 words drafted by the Constitutional Convention’s “Committee on Postponed Matters” that gave Congress the power to grant copyrights and patents.

Since at least the mid-nineteenth century, American courts have wrestled with the meaning of many of the words in that clause -- “Author,” “Writing,” “Limited Times,” and “Progress” – as well as what boundaries, if any, these words put on Congress’ ability to legislate legal protection for expressive works.  This paper offers a survey of these debates, noting that courts have been decidedly non-originalist when it comes to the Copyright and Patent Clause and that the one occasion when the Supreme Court used the clause to put sharp limits on copyright was a case centered on perceived lower court laxness, not Congressional expansion or strengthening of copyright.

Given the sparse historical record on the drafting of the Copyright and Patent Clause, this paper critiques various assumptions on how the clause was composed and emphasizes the speculative nature of any claims on the clause’s meaning.

Recommended Citation

Hughes, Justin, "Constitutional Copyright and the Meaning of Postponed Matters" (2026). Law Faculty Research and Publications. 9.
https://digitalcommons.lmu.edu/law_faculty_pub/9