March 25, 2011 – Article I, Section 08, Clause 07-08 of the United States Constitution – Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Article 1, Section 8, Clause 7-8

7:  To establish Post Offices and post Roads;

8:  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;

Clauses 7 and 8 of Article 1, section 8 demonstrate both the interest the Founders had in facilitating economic growth and prosperity, and the belief they shared that such power had to be made explicit in the Constitution.  The would not have been satisfied to hold, as we now do, that Congress’s regulatory power is presumed unless constrained by a specific provision.  Such a open-ended power would become tyrannical, they thought.

At the same time, they weren’t opposed to governmental intervention if appropriate to serve the general welfare.  The federal legislative power in particular could counterbalance provincialism in the states.  Having just been through the disaster that was the state of things under the Articles of Confederation, many Framers understood that greater federal power was necessary.

The debate was over how much would be too much power.

The “Post offices and post roads”in clause 7 sound quaint, but in fact were an enormously important piece of infrastructure.  Post roads were some of the first roadways built, and many former post roads remain today in our communities, whether we recognize them as such or not.  But whenever the government provides such infrastructure, there is also the danger of waste, fraud, and corruption between the members with control over the funding, and their constituencies.  Thomas Jefferson, for one, thought the power would prove “a source of boundless patronage in the Executive.” and “a bottomless abyss of public money.”

Jefferson wasn’t entirely incorrect.  Postmasters have been patronage appointments.  The location and accessibility of post offices is a critical constituent issue, and employment in the Post Office is valued as a safe, reliable and well-compensated career.  For shrinking communities, the potential they might lose “their” post office is a cruel final blow to civic pride.  The Post Office monopoly on “mail” delivery has eroded as the private package delivery industry – and email – have taken over tasks once done by the post office.  But these private communications are heavily dependent on a physical infrastructure that was build by government.  Had it been left to local communities and individuals, no doubt road would have been built, but with “local” priorities in mind, not national ones, with consequences for the nation’s westward expansion and domestic cohesion.

Clause 8 provides Congress with the power to legislate in the areas of patents and copyrights.  The founders believed the protection of intellectual property was important to the growth and prosperity of the nation.  Also, the author’s “copy right” was a right in English common law and was respected by the colonial America; and Parliament protected an investor’s right to his invention for 14 years.  Alexander Hamilton even advocated funding the emigration of “Artists and Manufacturers in particular branches of extraordinary importance.”  The Founders appreciated the good incentives these rights would create, by giving people with successful and popular ideas the ability to profit from them for a time.

The world of patents today is struggling with some extreme applications of these principles.  Because a person can “patent” an invention without actually bringing the invention into existence, subsequent inventors who do make commercially beneficial use of an idea can be compelled to “lease” the unused patent, or pay damages for infringement.  Rather than encourage industry and the useful arts, such patent litigation adds costs to the commercially active innovator, which are ultimately passed along to consumers.

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.

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5 Responses to “March 25, 2011 – Article I, Section 08, Clause 07-08 of the United States Constitution – Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics”

  1. Susan says:

    Another example of the Judeo-Christian influence on our Founders. Protecting our right to the increase of our efforts.

  2. Ralph T. Howarth, Jr. says:

    I have adovacated patent reform to where anyone taking out a patent, and anyone buying rights to that patent, must make a good faith effort to produce the concept to market. If they do not, then lose their rights after a time period. This would help block the practice of buying patents to only sit on them so that no close-substitute competititors can get a hold of the rights to build something competitive. This also would reduce the costs of litigation to obtain those rights if people apply for patents and do nothing with them.

  3. Barb Zakszewski says:

    Interesting analysis that shows, once again, the foresight the Founding Fathers had. Like they had a crystal ball that could see into the future and up to the present day.. Love Jefferson’s quotes about “boundless patronage” and “bottomless abyss of public money”. If he only knew!!

  4. Janine Turner says:

    I thank you, Ms. Hayward, for your wonderful essay and generosity of time. I have always been curious about Article 1, Section 8, Clause 8 regarding the exclusive rights of one’s works, especially the part referencing, “limited time.” What was the “limited time” in the past and what is it now? It would appear that there is no limitation of time at the present if people are hoarding prospective ideas with no intention of ever producing. This is a manipulation of the law and should be reconsidered. I believe, however, that this clause is a pivotal one regarding America’s success both then and now. Man wants to soar and reap the rewards for his efforts. Thus, this clause gave and gives man permission to dream, desire and deliver.
    God bless,
    Janine Turner

    • Ralph T. Howarth, Jr. says:

      Janine,

      There is provision in the US IP law that IF somebody comes up with an idea; but sits on it, and somebody else comes along with the same idea and can show proof of effort in a given period of time, then the do-nothing idea person is at risk of losing patent rights. But the problem does come into play that after the patent is secured, then some may sit on the patent, or buy the rights out on purpose to do nothing with it. That defeats the purpose of the law; though legal, until the Congress presses to amend fence sitting behavior on patents. In the tech industry; howerver, there sure does not seem to be much fence sitting going on because the shelf life of a technology goes by really fast…it is use it or lose it. So even if a tech company sits on a patent they bought, they are going to lose it anyway by virtue of obsolescence.

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