by Seth Lipsky
The Citizen’s Constitution An Annotated Guide by Seth Lipsky
"In 1995, the Supreme Court, in a 5 to 4 decision in U.S. Term Limits v. Thornton, struck down the Arkansas restrictions, ruling that no qualification can be imposed beyond those enumerated in the Constitution. In a dissent, Justice Thomas wrote: 'Where the Constitution is silent about the exercise of a particular power—that is, where the Constitution does not speak either expressly or by necessary implication—the Federal Government lacks that power and the states enjoy it.'"
(Article 1 Section 8:8)
"[The Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"
Congress recodified copyright in 1909, it dropped the limiting language, and protected all “works of art”—whether “fine” or not.
“It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value—it would be bold to say that they have not an aesthetic and educational value—and the taste of any public is not to be treated with contempt.”
-Justice Oliver Wendell Holmes, Bleistein v. Donaldson Lithographing Co. ( 1903)_____________________________________________________________________________