I am by and large persuaded by Brian, but I think the critique doesn't quite go far enough. Brian argues:
Helprin concludes his Op-Ed by claiming that "No good case exists for the inequality of real and intellectual property," but his argument fails simply because real and intellectual property are so significantly different that you cannot honestly equate the two. Real property requires continued maintenance and expense in a way intellectual property does not, and further, is subject to the very confiscation that Helprin claims it isn't. I want copyright protection like any other writer, but I don't think it should extend forever. Why should my descendants reap the millions my poetry will no doubt bring? Let them write their own.
This reasoning is persuasive, but the force of it extends to real property as well. Lord Snootypant's descendants have done as little to merit the continued enjoyment of Snootypants Manor as Brian's descendants will have done to merit the continued financial benefits of his poetry. There is a fine argument for allowing a limited inheritance to minor children as a means of support, and perhaps for complete spousal inheritance based on principles of community property. And there is probably a pretty compelling efficiency (pro-growth) argument to be made that people work harder for their children than they do for themselves.
But there is simply no principle of distributional justice suggesting that children have a right to property because their parents worked for it. You aren't a better person because your parents were good people, and you dont necessarily have the mental faculties of a sharp 12 year old just because your Daddy could almost speak in complete sentences (See e.g. Bush, George W., see also Bush, George H.W.)
But thats not what really interests me about this dispute. What really interests me about this dispute is Helprin's acknowledgement that his proposal (such as it is) is more or less explicitly forbidden by the text of the constitution, Article I, Section 8. Who knew?
This means that we would have to either 1) grossly circumvent the express words of the nation's foundational legal document, in the service of, uh, the pressing need for an adjustment in intellectual property standards, or 2) amend the express words of the nation's foundational legal document, in the service of, uh, the pressing need... you get the idea.
On an abstract level, I have some sympathy for Helprin -- there are an awful lot of fairly banal provisions in the constitution, that have little or nothing to do with the structure of governments or parts of government, or with the relationship of government to the individual. And I don't see a very good reason that a tiny minority of white male property holders from two hundred years ago should be making copyright policy, nor choosing the age limits for representatives, nor assigning bankruptcy jurisdiction, nor determining who has the power to switch us to the metric system, nor determining the permissible geographic limits for D.C.'s municipal annexation, nor limiting the right of the treasury to repay debts in precious metals other than gold and silver, nor... again, you, with the idea getting.
One needn't indulge our Nation's quasi-religious fantasy of A Perfect Constitution to think that probably none of this shit is worth pulling at the constitution's threads. But here the irony is exposed -- Helprin seeks relief from the arbitrary hand of those long dead, in order to extend his own arbitrarily through the ages.