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What do we know of the Intellectual Property Clause beyond the fact that it has been part of the Constitution since the inception of the Republic? To whom does it apply: to the states as well as to Congress? And if so, then to private entities exercising state power as well? In what sense, if at all, is the Clause preemptive? And what, if any, are its substantive implications, beyond the ones fairly evident in the text? That the Clause serves to empower Congress to enact legislation in the complementary fields of copyright and patent law is by now a commonplace.2 That it functions in some sense also to constrain Congress in enacting such legislation, through exhortation as well as limitation, seems to be accepted widely as well.' This is so thanks to cases in each field in which the Supreme Court has said so clearly enough to command the acquiescence of all but the most insistently skeptical.! Beyond these two soft areas of general accord, however, the common ground falls away sharply on every hand. There is little certainty as to any aspect of

The Intellectual Property Clause in Contemporary Trademark Law: An Appreciation of Two Recent Essays and Some Thoughts about Why We Ought to Care