Why do you require — why do you say the clause has got to be read by this kind of specific causation theory as opposed to a kind of systemic theory of promotion?

MR. LESSIG: Justice Souter, the reason is exactly related to the point I began with, that this is a case about limits and not about discretion. If it's not the case that this Court --

JUSTICE SOUTER: No, but that's — I mean, that's the issue in the alternative reading.

MR. LESSIG: That's right.

JUSTICE SOUTER: And why is it a limit case, rather than a discretion within a general scheme kind --

MR. LESSIG: That's right.

JUSTICE SOUTER: — of clause?

MR. LESSIG: Because if this Court does not adopt a reading of the form we've offered, then there is no limit to the ability of Congress to extend subsisting terms.

JUSTICE GINSBURG: Do you say the same thing for scope? This case is about duration, but Congress from time to time — in fact, you mentioned --

MR. LESSIG: Yes.

JUSTICE GINSBURG: — the expanded applications of copyright, and Congress itself extends the scope from time to time.

MR. LESSIG: That's right.

JUSTICE GINSBURG: [*6] Would you make, as far as, say, translation rights that didn't exist before, the same argument?

MR. LESSIG: I --

JUSTICE GINSBURG: Why — or — and if you wouldn't, why not?

MR. LESSIG: I — no, Justice Ginsburg, we would not, and the reason is again related to the method we have adopted to interpret "limited Times." We have not said that "promote the progress of science" is a general and independent constraint on the Copyright Clause authority. We've said it must be looked to to interpret the scope of "limited Times," and unless retrospective extensions are forbidden, it will eviscerate the meaning of "limited Times." That does not occur in the context of the scope of exclusive right, nor in the context of the power to secure. If that's --

JUSTICE BREYER: Could we then go back to Justice O'Connor's question? To make that very specific, if we agree with you, does that mean that we would, in principle, have to hold the 1976 extension unconstitutional? I mean, in 1976, Congress extended the term from 28 years. renewable once, to life of the author plus 50 years. Now they're extending it life of the author plus 70. If the latter is unconstitutional on your theory, how could the former not be? And [*7] if the former is, the chaos that would ensue would be horrendous.