What Is Congress Supposed to Promote?
Sun, 25 Nov 2018 09:53
Repeated Supreme Court dicta characterize the Intellectual Property Clause of the UnitedStates Constitution as containing both grants of power and limitations. The Court, however, hasyet to explicate the limit imposed by the Clause's opening words, 'to Promote the progress ofScience and the useful Arts.-- Scholars and jurists have assumed without investigation that'progress-- bears the meaning most potent in Nineteenth Century American civilization: acontinuous qualitative improvement of knowledge inevitably leading to consensus and humanhappiness. This article presents empirical evidence that the 1789 meaning of 'progress-- is'spread.-- The original meaning of Article I, section 8, clause 8 of the Constitution is that
Congress has power to pass only such time-limited copyright and patent statutes as increase thedissemination of knowledge and technology to the public. Congress' modern focus on providingmaximum control and economic benefit to copyright holders is constitutionally illegitimate. TheCourt, therefore, should hold the Copyright Term Extension Act to be unconstitutional when itdecides Eldred v. Ashcroft next term. The same fate should await the anticumvention provisionsof the Digital Millennium Copyright Act. Article I, section 8, clause 8 is most properly referredto as the 'Progress Clause.--
The Congress shall have the power . . . To Promote the Progress of Science and the useful Artsby securing for limited times to Authors and Inventors the exclusive right to theirrespective writings and discoveries.
U.S. Const. Art. I, Sec. 8, Cl. 8
('Progress Clause,-- formerly 'Copyright and Patent Clause,-- 'Intellectual PropertyClause,-- or 'Exclusive Rights Clause--)
Progress Is Our Most Important Product
Ronald Regan, for General Electric [FN 3]
I. Introduction: Why Define 'Progress--?
A. The Stakes in Positive Law
B. The Definitional Hole
C. How the Suggested Reading Fits The Constitutional Scheme
2. An Evolving Constitution
II. Starting Points and Assumptions for Textual Analysis
III. Drafting and Ratification
IV. Testing Definitions in Context
V. Linguistic Evidence
B. The Pennsylvania Gazette
C. Idea of Progress LiteratureVI. Conclusion
I. Introduction: Why Define 'Progress--?
A, The Stakes in Positive Law
I am fairly sure of what Article I, section 8, clause 8 means. I am hopeful, furthermore,that the core of my reading will be accepted by otherwise disparate interpreters of theConstitution: 'progress-- means 'spread,-- i.e. diffusion, distribution. [FN 4] To the extent that Congress chooses not to act under this clause, [FN 5] the default position is that each person in theUnited States has a property right not to be excluded from publicly accessible knowledge andtechnology. [FN 6] Congress has only a very limited power to create private quasi-property, i.e. rightsto exclude the rest of the commoners. [FN 7] Congress may only create temporary individual rights for'authors-- or 'inventors-- to exclude others from use of 'their respective writings and discoveries--when such individual rights 'promote-- the spread of knowledge ('science--) and technology('useful arts--).
I am much more certain that my suggested doctrine is not yet positive law. Following myanalysis should reverse the pro-copyright holder decisions of Universal City Studios v. Corley [FN 8] and Eldred v. Ashcroft. [FN 9]
My research shows four possible 1780s meanings of 'progress-- in the Progress Clause:quality improvement in the knowledge base, quantity improvement in the knowledge base(numerically), quantity improvement in the knowledge base (judged economically), and spread(distribution to the population). [FN 10] Of these, quantity is the least supportable. [FN 11] Quality has lowsupport and creates problems in context. [FN 12] Spread has the highest support. [FN 13]
The most charitable reading of Congress' post-1970 intellectual property enactmentsmight be that Congress sees the 'Copyright and Patent Industries-- as the strongest part of thecurrent United States economy [FN 14] and, therefore, assumes that giving these industries whateverthey request is the best policy. This approach ignores the probability that current majorstakeholders are merely trying to protect and enlarge their own profit shares _ even when self-protection blocks 'the progress of science and the useful arts,-- in any meaning of the phrase. [FN 15]
If Congress is actually considering the language of the Constitution, Congress appears tobe operating on the naive theory that since some protection promotes writings and discoveries,more protection necessarily better promotes writings and discoveries. [FN 16] Even leaving aside majornormative and baseline problems, one entity's exclusive rights block other creative people fromproducing related works and discoveries. [FN 17] Transaction costs [FN 18] and right-holders' biases [FN 19] increase these blocks.
Correcting the reading of the Progress Clause by recognizing that 'progress-- involvesdissemination, as opposed to qualitative improvement of the knowledge base, has importantresults. Using the proper original reading should result in judicial trimming of congressionalover-protection. For the argument in this section, I will assume mere rational basis review. Thereview standard should be higher because (i) Congress has never bothered to take the limits inthe Clause seriously, (ii) Congress is treading close to textual limits on its power, [FN 20] and (iii)copyright statues are limitations on speech. [FN 21] The review standard issue, however, will have towait for another article. [FN 22]
Let us assume, just for the current argument, that Congress asserts that it has a rationalbasis [FN 23] for believing that e.g. making digital circumvention and circumvention technologyillegal [FN 24] will affect the supply of new writings and discoveries at the margin. Let us also assume,arguendo, that the only relevant arguments pertain to the purpose section of the Progress Clause. Somewhere some writers would not compose and release new works if they cannot preventpersistent computer wizards from bypassing technological envelopes. They will write andpublish the works if they are assured protection from computer wizards. Let us dub this set of writers 'Digital Control Driven.-- Some other writers, of course, would be blocked fromcomposition by a ban on technological circumvention and circumvention devices. They will beunable to get permission to incorporate indispensable bits of pre-existing works into theircreations and will be unable to act on the assumption that the uses are fair [FN 25] because they areunable to bypass the technological envelopes guarding the older works. [FN 26] Let us dub this set ofwriters 'Public Domain Driven.--
Congress bases the ban on circumvention and circumvention technology on alternatetheories. First, if this protection is granted, the Digital Control Driven are likely to produce morewritings than the Public Domain Driven will fail to produce. [FN 27] Second, the writings produced bythe Digital Control Driven are likely to improve human understanding more than would thewritings produced by the Public Domain Driven. Similar arguments could be made regardingextensions of the term or scope of either copyright or patent.
As long as 'progress-- refers to the Idea of Progress, the constitutional issue involves thevalue or quantity of the works produced _ largely regardless of their availability or cost to users. Of course, 'The Idea of Progress-- and 'spread-- are not a dichotomy; they are opposite poles on acontinuum. 'Spread-- requires works to share. 'Quality works-- are useless without some users;the users, however, may be limited to a small elite section of the populace who work on thecutting-edge of knowledge. [FN 28] Nevertheless, if the core meaning of 'progress-- is 'qualityimprovement of the knowledge base,-- the courts are extremely unlikely to hold the legislationunconstitutional. To void the statute, a court would have to insist that Congress' theoreticallyinformed guess on the Digital Control Driven/Public Domain Driven balance is irrational. Considering the complexity and diverse conclusions of the relevant literature, [FN 29] a court is unlikelyto go this far. If 'progress-- means 'spread,-- a court is more likely to second guess Congress. Now,Congress is required to prioritize public access to works over the existence of works. The changein priorities forces Congress to show that the additional rights to exclude create sufficient newaccess [FN 30] to works to counter balance (a) the ability of right holders to restrict access to workswhose copyrights have expired, (b) the ability of right holders to restrict fair uses of workscovered by copyright, (c) the ability of right holders to restrict access to the uncopyrightableelements of copyrightable works, and (d) the ability of right holders to leverage technologicalprotection into contracts limiting downstream distribution of works. [FN 31] Now Congress has a muchhigher evidentiary problem with showing a good faith belief in a 'rational basis-- for itslegislative balance of the creation/dissemination balance. [FN 32] What about the Copyright Term Extension Act? [FN 33] The District of Columbia Circuit heldthe act constitutional because 'to promote the progress of science and the useful arts-- was not asubstantive limit on Congress' power. [FN 34] The majority, however, went one unnecessary stepfurther, and asserted in dicta that even if this language contained some limit, the necessary andproper clause allows Congress to promote progress by increasing the incentive for copyrightholders to preserve old works, providing the sole example of movies in need of restoration. [FN 35] Does this demonstrate that reading 'progress-- as 'spread-- would make the CTEA harder toassail? I think the opposite. Eldred was decided on the vacuity of the purpose section of theProgress Clause. If a court thoughtfully considers 'progress-- (under any definition), the CTEAshould be held unconstitutional in all its applications. The Eldred court merely invoked thealleged upside of the change without considering the downside_ an improper way to do any typeof cost/benefit analysis.
My reading does destroy one argument against the retrospective section of the act _ theargument that extending existing copyrights cannot promote progress because this phraserequires each grant to be paid for with a new work. [FN 36] However, the same limitation can bereached by other textual argument. Let me explain.
The best arguments against the CTEA are not related to the word 'progress.-- First,looking at policy, the CTEA should fail rational basis scrutiny because it is a subsidy granted asmall number of large corporations; copyright is merely a subterfuge used to deflect publicscrutiny and outrage. Any such camouflaged wealth transfer should be suspect as corrupt [FN 37] _ notrationally related to any legitimate legislative purpose. Such a disguised subsidy to powerfulpolitical backers is even more unacceptable when tied to a copyright grant. The historicalancestor of the Progress Clause, the English Statute of Monopolies [FN 38] was the first step inParliament's control of the royal purse strings. No Authors' Exclusive Right (AER) orInventors' Exclusive Right (IER) [FN 39] may be used to bypass full public scrutiny of politicalpayoffs. [FN 40]
Second, looking at the words of the Progress Clause, the CTEA's extension of existingcopyrights breaches the barrier erected by the interaction of 'writers,-- 'authors,-- and 'limitedtimes.-- The Supreme Court has already read the junction of 'writers-- and 'authors-- to requireoriginality. [FN 41] The structure of the Progress Clause ties 'limited times-- tightly to author/writingand inventor/discovery. Therefore, in context, 'limited times-- should mean that any new termmust be premised on additional contributions of 'writings-- from 'authors-- (or discoveries frominventors) _ new original material. Lengthening existing copyrights is unconstitutional,regardless of the meaning of 'progress.--
Third, the words 'limited times-- by themselves require a definite term limit set at thebeginning of protection. [FN 42] Like patent, copyright is strongly analogous to a contractual bargain. [FN 43] In return for public availability, the copyright holder is granted a set of rights to exclude. IfCongress later grants additional rights, the copyright holder most provide new consideration. IfCongress enlarges the copyright holder's power without requiring a quid pro quo, Congress is adishonest agent. [FN 44]
Third, the CTEA only claims to promote 'progress,-- if 'progress-- means 'economicvalue.-- The CTEA's announced primary rationales are (i) to give copyright holders more of thefinancial value of works, and (ii) to help the United States' balance of payments by supporting astrong export industry. [FN 45] Neither of these goals conceivably promote 'progress-- if that wordmeans either 'quality improvement-- or 'spread.-- At best, these goals might increase theeconomic value of 'writings.-- Any such increase, however, is created by statutorily distortingthe market _ which clearly demonstrates that economic value and statutory grants are notindependent. If 'promoting progress-- is a limitation on Congress, therefore, 'economic value-- isnot a possible translation of 'progress.-- [FN 46]
Worse, the CTEA's implied assertion that it increases the economic value of works is anempirical claim made without supporting evidence. The large entities which lobbied for theCTEA obviously believed that the act would increase the economic value of certain copyrights to them. Congress made no apparent effort to determine if the shift of power lowered the totalvalue of copyrights in general or of any specific copyright. The legislative history does notdiscuss the economic value of the non-licensed uses foreclosed by term extension. Cost/benefitanalysis cannot be done by listing benefits and ignoring costs.
If 'progress-- means 'quality improvement,-- Congress could state that it believes the extramoney which will be acquired by large copyright-holding corporations is likely to fund thehighest quality works which will be created in next century. This assumption, however, iseconomically irrational. [FN 47] Furthermore, the legislative history of the CTEA does not demonstratethis as Congress' intent. If a court were to invoke this as Congress' rational basis for the CTEA,it should be faulted for using a contrived apologia to side-step judicial responsibility. Unfortunately, I doubt that the CTEA's opponents could prove the opposite _ that individuallywritten works (which will not be created because of the CTEA) would have been of higherquality. How do you prove the quality of works that will not be created? Over-deference toCongress, therefore, might result in a court's upholding the CTEA.
If 'progress-- means increase in the number of works, the CTEA should fail _ but proofwould be very hard to acquire. At the time an author is considering creation, or a publisher isconsidering initial publication, the additional twenty years (coming only twenty years after theauthor dies) is worth about zero. [FN 48] Humans, however, are not always good at, or interested in,making this type of cost/benefit prediction. [FN 49] Notoriously, few athletes make it rich; yet adisproportionate number of economically disadvantaged youths drop out of school with theintention of becoming basketball superstars. [FN 50] Certainly, the longer term would cut downavailability of building blocks for new works, but holders of large copyright portfolios would stillhave enough stock to keep writing. I do not know of any evidence I could show the court thatwould prove the numerical balance favors a shorter term. Again, proving counterfactuals aboutlikely creation is rather difficult. Again, judicial over-deference to Congress might result in theCTEA surviving.
If progress means 'spread,-- I cannot guarantee that the CTEA would fail, but itsopponents would have more evidence to show a court. Extending the United States copyrightterm extends the term inside the United States both for domestic works and for works from othercountries. [FN 51] By exploring government records, opponents should be able to develop somequantitative approximation of how many works of various types are being fenced out ofcompetitive circulation for an additional twenty-years. [FN 52] This large number of works which maybe denied to the entire population of the United States for an additional twenty-years shouldcompute into an impressive quantity of lost access. Opponents would still have difficultyquantifying how many new works would be created under the different legal regimes, but now,they would have some very strong figures to show the court _ figures Congress seemingly madeno effort to obtain. Since the supporters of the CTEA have better access to such statistics than itsopponents, opponents might even convince the court to place a higher evidentiary burden on thegovernment.
The progress by dissemination claim (that an additional term is necessary for preservationof old works) furthermore, seems facially unrealistic. [FN 53] Generally, by fifty years after the death ofits author, a work's market potential has already been tested. An interested distributor wouldknow which works were worth continued marketing. Risk would be almost completelyeliminated. Common experience shows that works without copyright protection continue to bepublished _ Shakespeare, Milton, and the Bible are easy to find in book stores. [FN 54] If Congressconsidered crumbling old works to be important, furthermore, the CTEA is hardly a proportionalresponse. The number of crumbling old works is presumably only a small subset of the oldworks granted the additional term. [FN 55] Preservation seems mere camouflage; Congress did notlimit the liability of persons who restored old-works after a reasonable, but unsuccessful, searchfor the current copyright holder. A court should have enough hard evidence to overthrow theCTEA on the ground that no rational legislature could conclude that it increased public access towritings.
In sum, reading 'progress-- as 'spread-- increases the possibility of effective court over-sight of Congress' intellectual property legislation. [FN 56] This definition might also effect how thecourts deal with Internet issues such as causes of action for trespass to websites, and attempts torequire permission to set up hyperlinks. [FN 57] I do not, of course, claim that this change wouldrequire the Supreme Court to reign-in Congress.
B. The Definitional Hole
The Supreme Court has never purported to define the individual word 'progress-- in theIntellectual Property Clause, more properly the Progress Clause. [FN 58] So far, the Court has said thatthe entire progress limitation _ in conjunction with the requirement that the res protected beeither the 'writing-- of an 'author-- or the 'discovery-- of an 'inventor-- _ relates to Congress'supposed inability to remove res from the public domain, [FN 59] the non-obviousness requirement toobtain a patent, [FN 60] and the minimal standard of originality in copyright. [FN 61] Additionally, the entireprogress limitation has some relationship both to public availability of technology and writings, [FN 62] and to the uncopyrighabilty of facts. [FN 63]
Academic literature is also oddly reticent about the eighteenth century meaning of theword 'progress.-- I know of no article presenting a detailed explication. Most scholars seem toassume that 'progress-- in the Progress Clause relates to the well-known Enlightenment Idea ofProgress: [FN 64] all is getting better in this, the best of all possible, worlds [FN 65] (smile when you say that,post-modern human). [FN 66] Accepting this premise, Robert Merges asserts that the Framers'unfounded optimism cannot support any meaningful limitations on Congressional power. [FN 67]
Oh, the power of rampant anachronism and assumption! I agree with some of the generalassumptions about 'progress.-- The Idea of Progress had begun to flower by the late eighteenthcentury. [FN 68] This Idea of Progress was an axiomatic, background, cultural assumption in theUnited States by the mid-nineteenth century. [FN 69] But none of this evidences that the American-English word 'progress-- meant the same thing in 1789 that it meant in 1850 or means in 2001. This definitional reticence has practical consequences. Unless 'progress-- is anindependently monitored, objectively measurable goal, Congress' discretion to transfer the publicdomain to private right- holders is effectively almost unbounded. The other textual fences in theProgress Clause have already been breached. 'Limited times-- has been statutorily stretched fromfourteen years [FN 70] to seventy years after the death of the author. [FN 71] One court even approvedCongress's purported creation of perpetual rights to prevent fixation of sound recordings withoutthe performers' permission. [FN 72] An 'author-- is '"he to whom anything owes its origin; originator;maker; one who completes a work of science or literature." [FN 73] 'Writings,-- congruently, include'the literary productions of those authors . . . [including] all forms of writing, printing, engraving,etching, &c., by which the ideas in the mind of the author are given visible expression-- [FN 74] limitedonly by a weak originality requirement. [FN 75] 'Inventions-- may include 'anything under the sun thatis made by man-- [FN 76] including living entities [FN 77] and business methods, [FN 78] provided that any purportedinvention is not obvious to a person of ordinary skill in the relevant art. [FN 79]
True, the Supreme Court [FN 80] has repeatedly stated that Congress' power to create privateintellectual property is limited by the 'promot[ion] of the progress of science and the useful arts,--the recited purpose of Authors' Exclusive Rights (AERs) and Inventors' Exclusive Rights(IERs). [FN 81] The Court, however, has yet to void any Congressional largess on this basis. [FN 82] TheCourt has never even checked to see if Congress purposely or rationally reached the conclusionthat some statutory scheme does, or is likely to, 'promote progress.-- [FN 83] The Court's invocationsof 'progress,-- furthermore, are clearly dicta in all but two cases; [FN 84] even in these cases, most (orperhaps all) of the articulated limitation rests on other words in the Clause. [FN 85] These cases,furthermore, merely construe and enforce statutes. By the narrowest definition of 'holding,-- wehave no Supreme Court holding on the meaning or enforceablity of the 'progress-- limitation inthe Progress Clause.
The Progress Clause's limit should have real bite, because it should constrain theCommerce Clause by negative implication. [FN 86] Such an implied limit should exist because theCourt has held that the 'uniformity-- limit in the Bankruptcy Clause cannot be bypassed byinvocation of the Commerce Clause. [FN 87] The Progress Clause/Commerce Clause interaction iscurrently under attack by the anti-circumvention provisions of the Digital Millennium CopyrightAct [FN 88] and proposed database protection statutes. [FN 89] Congress' increase of the copyright term isunder attack as violative of the 'limited times-- provision. [FN 90] Another issue which seems over-ripefor litigation is the intersection between Constitutional/Congressional policy and state-basedlegal rights, including contractual expansion of AERs and IERs. [FN 91] In sum, the Court has yet to enforce the negative implication of the Progress Clause, [FN 92] butthe pressure to do so is rising. [FN 93] To enforce this limit, the Court will need a definition of'progress.-- This article posits 'spread.--
C. How the Suggested Reading Fits The Constitutional Scheme
No matter how good my empirical research, I would not expect anyone to accept myanalysis if it was incongruent with basic principles held by the Federalists who drafted andratified the Constitution. This section briefly demonstrates that my reading of the ProgressClause makes sense inside the Federalist belief structure. I am not, of course, claiming that mineis the only reading of the Progress Clause congruent with Federalist principles. A stronger claimis impossible. 'Federalist principles-- is an umbrella name, a short hand designation, for the differing, inconsistent, often incompletely analyzed beliefs held by a multitude of human beingswho cooperated in supporting ratification of a political document.
First, according to Enlightenment Idea of Progress theorists, wide dissemination ofinformation was a requirement for qualitative improvement of arts and sciences. Any subgroupof humans, any nation, might stagnate or regress. Mankind as a whole would 'progress-- becauseof the large number of individuals who would have the opportunity to add onto what earlierindividuals had learned. [FN 94] Writing, therefore, was very important. Committing information to alasting, mobile format allowed more people to share and build on earlier work. [FN 95] This,presumably, is why AERs are only allowable for 'writings.-- [FN 96]
Second, according to both Enlightenment Idea of Progress theorists and many of theFramers, relative equality of all humans was part of the perfect society. According to Condorcet,'Our hopes for the future condition of the human race can be subsumed under three importantheads; the abolition of inequality between nations, the progress of equality within each nation,and the true perfection of mankind.-- [FN 97] This true perfection includes universal education. [FN 98] 'Allmen,-- after all, 'are created equal and endowed by their Creator with certain inalienable rights--including the 'pursuit of happiness-- [FN 99] which requires intelligent, educated choice. Generalpublic education was a common, central tenet. [FN 100] Even the Bill of Rights created institutions forteaching governance skills to the general public. [FN 101]
As Madison famously said, '[k]nolwledge will forever govern ignorance--; '[a] populargovernment without popular information or the means of acquiring it is but a prologue to afarce or a tragedy or perhaps both.-- [FN 102] Madison, nevertheless, argued that the Constitution didnot need a Bill of Rights. [FN 103] Presumably, he thought the Progress Clause was not a danger to thepublic's ability to acquire knowledge. This may be because 'progress-- meant 'spread,-- i.e.distribution. Certainly the tension between the First Amendment and the Progress Clause istamed by my reading of 'progress.-- [FN 104]
The Framers' infamous focus on preserving unequal private property [FN 105] does notundermine my argument. Some have argued that Madison, among other Framers, believedauthors had a natural right to copyright protection. [FN 106] This argument, however, overlooks thelimited quasi-property right such Framers seemingly supported. Besides the much narrowerscope of both copyright and patent in English law at the time, we have contemporaneousstatements to that effect by influential persons. Both Francis Hutchinson [FN 107] and JohnWitherspoon [FN 108] taught that an inventor has a natural right to reasonable compensation for hisefforts, but does not have any right to hoard his learning if such reasonable compensation isavailable. [FN 109] The Federalist asserts that the rights of inventors and authors stand on the samelogical premises. [FN 110]
2. An Evolving Constitution
Allowing the meaning of 'progress-- to evolve results in the same reading of the ProgressClause as using the original meaning of the word 'progress.-- Both methods converge on'spread-- as the meaning of 'progress--; both, therefore, construe the Progress Clause to allowonly such private property as helps the dissemination of science and the useful arts. [FN 111] Let meexplain.
If the 'progress-- we want Congress to promote is the latest, most evolved meaning of'progress,-- we should not turn back to the nineteenth century 'Idea of Progress.-- As post-moderns we know, of course, that a poll of the current common use of the word 'progress--would result in a useless cacophony. The language in the Constitution has been removed fromevery day speech and imbued with an almost religious aura. Certainly the aura is toooverpowering, too vague, and too disputed for this type of simplistic empirical research to be anacceptable method of defining legal limitations.
We have, however, a very simple way of determining the modern meaning of 'progress.-- At its core, the post-Renaissance concept of progress is the claim that humans will change overtime into more knowledgeable residents of a better society. To modernize 'progress,-- therefore,we can ask how 'We, The People of the United States-- [FN 112] improved our fundamental charter, theConstitution. What did We enact as constitutional 'progress--?
'We, the People-- changed the Constitution to allow more of us to be part of 'We, thePeople.-- This conclusion does not require any subjective evaluation. Just look at theAmendments to the Constitution. [FN 113] The first ten can be viewed in two different ways. First,they are part of the original document because the Constitution would not have been ratifiedwithout a promise to enact them; they are merely part of the baseline before we look for change. Alternatively, they protect individual citizens against the power of the newly created federalgovernment. [FN 114] Either view is consistent with my thesis.
As for the other Amendments, the general trend is an increase in participation by moreindividual citizens. In 1804, the Twelfth Amendment separates out the votes for President andVice President to allow the viability of the political party; a pooling of resources allowing somegroups to overcome collective action problems. [FN 115] 1865 through 1870 give us the ReconstructionAmendments ending slavery, giving former slaves the vote, and starting the process of forcingthe rest of 'We, the People-- to treat African-Americans with equality. In 1913, the SixteenthAmendment allows the direct federal income tax _ a democratization of the cost of government. Amendment Seventeen makes the election of Senators more direct. In 1920, the NineteenthAmendment gives women the right to vote. Sections one and two of the Twentieth Amendmentenhance popular control of Congress by severely limiting the power of lame-duck members. [FN 116] The Twenty-Second Amendment creates a term limit for the Presidency. In 1961, the Twenty-Third Amendment finally allows the residents of the District of Columbia to vote for Presidentand Vice President. The Twenty-Fourth Amendment, in 1964, outlaws the poll tax as a methodof curtailing the right to vote. In 1971, the Twenty-Sixth Amendment lowers the voting age toeighteen. In 1992, the Twenty-Seventh Amendment restrains the power of Senators andRepresentatives to raise their own salaries without electoral feedback.
Some of these changes are minor. Some are major. All however are part of an ongoingmovement towards allowing more people to have more power over their government. 'We, thepeople,-- therefore, have demonstrated unequivocally that 'progress-- in 'promoting the generalwelfare-- [FN 117] means spread, dissemination, sharing of power.
In sum, if we want to find an evolved meaning for 'progress,-- we can look at theevolution of the Constitution. Constitutional 'Progress-- means sharing, spreading, disseminatingthe power. 'Progress,-- therefore, means 'spread.-- The Progress Clause, thus, allows Congressto create individual rights to exclude only when those rights promote the spread of science andthe useful arts. The explanation is supported by the undoubted dependance of political decisionmaking on access to information. If more people are involved in governing, more people need tobe informed; information needs to be spread throughout the politically empowered population.
II. Starting Points and Assumptions for Textual Analysis
Constitutional construction is generally divisible into four methods: (a) asking what thewords meant when enacted, (b) asking the intent of the drafters or ratifiers of the language atissue, (c) asking how the principles of the drafters or ratifiers counsel us to act in the present caserequiring decision, and (d) asking how modern principles counsel us to act in the present caserequiring decision. [FN 118] The last two methods often involve using modern definitions ofamorphous words such as 'reasonable-- or 'due process.-- [FN 119] As discussed in the next section,original intent, choice (b), seems unavailable for lack of evidence. [FN 120] Choices (c) and (d) founderon the lack of consensus. Both now and in 1789, people disagree about both the correct baselineand the empirical outcome of different protection levels. [FN 121] If we wish to convince disparateothers, therefore, we are left with only method (a), Original Meaning. Original Meaning also hasthe virtue of current Supreme Court approval. [FN 122]
Completely rejecting the original meaning approach as to this particular constitutionalclause, furthermore, would seriously upset current practice. 'Writings-- has been expanded toinclude two and three dimensional art objects and music. [FN 123] Under original meaning analysis, thismove is easily supportable. 'Author-- in eighteenth century English was a very broad term. 'God-- was commonly described as the 'author-- of the physical world. [FN 124] The physical worldwas a text in which man could read divine messages congruent with those in the Scriptures,God's verbal text. [FN 125] Do we wish to cancel copyright protection of art and music? Do we wish toadmit the level of inconsistency required to use an eighteenth century definition of 'author,-- yetinsist on a mid-nineteenth century definition of 'progress--? I suggest that all interpreters of theConstitution admit that we should at least start construction of the Progress Clause with lateeighteenth century word use.
To make any headway, even under Original Meaning theory, I need to make severalassumptions. All are reasonable, but all are merely assumptions.
First, I will assume that the words of the Progress Clause were carefully chosen forsubstantive reasons. [FN 126] As discussed below, the wording does not follow any of the suggestionsmade at the 1787 Constitutional Convention. It does not quote any ancestral document. Perhapsthe drafting committee merely considered the sound of the words. I will assume, however, thatthe committee purposefully chose words that were not legal terms of art. I will assume that thecommittee chose these words because of what they meant.
Second, I will assume that the Progress Clause contains no surplusage. Eighteenthcentury authorities on style demanded brevity and clarity. [FN 127] The no surplusage rule is a timetested cannon of statutory construction. [FN 128] I admit that the Court has been known to be less kindto constitutional language. [FN 129] The Court, however, usually gives intent-related reasons for suchlapses. [FN 130] Intent, however, is too murky in this instance to be a useful tool for someone whowishes to persuade.
Third, I will assume that the word 'progress-- has the same meaning as to the discoveriesof inventors as it does regarding the writings of authors. [FN 131] The parallel construction of theProgress Clause implies this conclusion. At least one leading scholar, however, argues that'commerce-- may have a different meaning in Article I, Section 8, Clause 3 when applied to'commerce among the several states-- than when applied to commerce 'with foreign nations.-- [FN 132] That argument, however, claims an original intent basis for the distinction and admits that, absentan original intent record, the default position should be to give a word the same meaningthroughout.
Before I discuss 'progress,-- I need to provide 1789 definitions for some of the otherwords in the Clause. 'Useful arts-- are the technological arts, as opposed to the liberal arts. [FN 133] Inthe eighteenth century,--science-- included all knowledge and all subjects of organized study. [FN 134]
With this background, we are prepared to construe the word 'progress.--
III. Drafting and Ratification
The standard explicative sources from the constitutional drafting and ratification processare not helpful in defining 'progress' as used in the Progress Clause.
First, the historical precursors of the Progress Clause do not use the same language. TheEnglish 1624 Statute of Monopolies [FN 135] ('Statute--) is the recognized ancestor of American utilitypatents. [FN 136] This Statute was an early Parliamentary attempt to limit monarchial power bypreventing royal access to revenue sources unguarded by Parliament. [FN 137] The Statute opens bybanning all legal claims of 'monopoly,-- [FN 138] but excepts from this general ban certain privilegesgranted to 'the first and true inventor-- of any 'new manufacture.-- [FN 139] The Statute does notmention anything akin to 'progress.-- The purpose preamble discusses only preventing harm tothe public from improper grants. [FN 140] The English Statute of Anne [FN 141] ('Anne--) is theacknowledged ancestor of American copyright statutes. [FN 142] Anne is labeled 'An act for theencouragement of learning-- and declares that it is enacted both to prevent 'printers, booksellersand other persons-- from printing books 'without the consent of the authors or proprietors-- and'for the encouragement of learned men to compose and write useful books.-- [FN 143] Anne doesforeshadow the Progress Clause's assumption that legal control creates monetary rewards which,in turn, may provide a motive for publishing books. The word 'progress,-- however, is absent.
During the Articles of Confederation period, a committee of the Continental Congress didsubmit a report requesting the member states to pass copyright statutes. Twelve enacted suchstatutes. Neither the committee report nor the statutes, however, mention the 'progress-- oftechnology, learning, knowledge, science, or literature. [FN 144] The word 'progress-- does appear in the preambles to the almost identical Massachusetts,New Hampshire, and Rhode Island statutes:
Whereas the improvement of knowledge, the progress of civilization, the public weal ofthe community, and the advancement of human happiness, greatly depend on the effortsof learned and ingenious persons in the various arts and sciences . . . . [FN 145]
'Progress-- is not tied to 'knowledge--; it is tied to 'civilization.-- This phrase may easily meanthat civilization is to spread geographically and throughout the population_ hardly an oddthought considering how little of the available land had been settled and how many niceties ofsociety were confined to large settlements with water transport. [FN 146] This geographic reading of'the progress of civilization-- is congruent with the wording of the then-current constitution of thestate of Massachusetts.
Wisdom and knowledge, as well as virtue, diffused generally among the body of thepeople, being necessary for the preservation of their rights and liberties; and as thesedepend on spreading the opportunities and advantages of education in the various parts ofthe country, and among the different orders of the people, it shall be the duty of thiscommonwealth to cherish the interests of literature and the sciences, and all seminaries ofthem; especially the university at Cambridge, public schools and grammar schools in thetowns; to encourage private societies and public institutions, rewards and immunities, forthe promotion of agriculture, arts, sciences, commerce, trades, manufactures, and anatural history of the country; to countenance and inculcate the principles of humanityand general benevolence, public and private charity, industry and frugality, honesty, andpunctuality in their dealings; sincerity, good humor, and all social affections, andgenerous sentiments among the people. [FN 147]
This passage is repeated almost verbatim in the New Hampshire state constitution; [FN 148] it is slightlyechoed in the Rhode Island Constitution. [FN 149] Similarly, four of these early copyright statutes assertthat new works help 'mankind,-- [FN 150] and five make provision for overriding the author's privilegeif he fails to make sufficient copies of his work available locally at reasonable prices. [FN 151]
In summation, eight of the twelve pre-U.S. Constitution copyright statutes officiallyendorse the spread of knowledge.
At the 1787 Constitutional Convention, delegates voiced several relevant suggestions forcongressional powers. 'To grant to literary authors their copy rights for a limited time.-- [FN 152] 'Toencourage by premiums & provisions, the advancement of useful knowledge and ofdiscoveries.-- [FN 153] 'To grant patents for useful inventions.-- [FN 154] 'To secure to Authors exclusiverights for a limited time.-- [FN 155] While several of these suggestions rely on the concept of monetaryincentive, none uses the word 'progress.-- Madison's notes, furthermore, do not include anydiscussion of these suggestions. All we know is that the current language of Art. I, section 8,clause 8 emerged complete from committee on September 5, 1787 and was accepted with no onecontradicting. [FN 156]
The ratification debates and related literature are unhelpful. They barely mention theProgress Clause. No one defined the word 'progress.-- [FN 157] The fullest discussion we have isMadison's short paragraph in the Federalist Papers. [FN 158] Madison claimed that, as to patents andcopyrights, 'the public good fully coincides with the claims of individuals.-- This seemssimplistic at best. We might consider Madison's words a gloss on the word 'progress,-- but I ammore inclined to dismiss The Federalist's squib as a rapidly penned attempt to discuss all clausesin the proposed Constitution. The Federalist paragraph misstates then-current English law. [FN 159] The Federalists, furthermore, were rather too busy replying to objections to the Constitution tospend much thought on a clause whose positive grant of power had not been attacked. [FN 160]
In sum, while many scholars assume that the words in the Progress Clause invoke theIdea of Progress and paraphrase earlier documents, these are mere assumptions. The ProgressClause has unique wording and comes without an official set of definitions. [FN 161] We must,therefore, turn to other evidence.
IV. Testing Definitions in Context
The Progress Clause makes more linguistic sense when 'progress' is defined as 'spread'of knowledge and technology rather than either 'qualitative improvement-- or 'quantitativeimprovement,-- whether quantity is judged numerically or by economic value.
The first problem with accepting either of these alternative definitions is surplusage. If,as I have assumed, the Progress Clause contains no surplusage, 'promoting the progress ofscience and the useful arts-- must mean something different from 'promoting science and theuseful arts.-- [FN 162] This alone bars both the quantity and quality definitions.
'Quality improvement-- makes the language redundant. Telling a legislature 'to promotethe quality improvement of science and the useful arts-- is the same as instructing it to 'topromote science and the useful arts--; both reduce to encouraging the investment of time andmoney into work in science and the useful arts. My hunt through seventeenth and eighteenthcentury sources, furthermore, located numerous usages of the shorter phase or its equivalent withthis meaning. Francis Bacon's leading book arguing the practical usefulness of the search forknowledge is titled 'The Advancement of Learning,-- not 'The Advancement of the Progress ofLearning.-- [FN 163] Mandeville's 'Fable of the Bees-- repeatedly refers to 'promoting-- arts andsciences, [FN 164] but never to 'promoting the progress-- of any art or science. Alexander Hamilton'sfamous manufacturing group called itself the Pennsylvania Society for Encouragement ofManufactures and the Useful Arts, [FN 165] not the Pennsylvania Society for the Encouragement of theProgress of Manufactures and the Useful Arts. The Statute of Anne is 'An act for theencouragement of learning,-- not for 'the encouragement of the progress of learning.-- TheMassachusetts and New Hampshire Constitutions call for the 'promotion of agriculture, arts,sciences, commerce, trades, manufactures, and a natural history of the country,-- not for the'promotion of the progress of agriculture, [etc.].-- Even the Continental Congress' committeereport argues that 'the protection and security of literary property would greatly tend toencourage genius [and] to promote useful discoveries--; [FN 166] it does not speak of 'encouraging theprogress of genius-- or 'promoting the progress of useful discoveries.-- [FN 167]
The quantitative definition makes 'the progress of-- even more clearly redundant. Whatdoes it mean to 'promote science and the useful arts,-- if not to take action that will increase thequantity of time, effort, money, or other resources devoted to 'science and the useful arts-- so asto increase the probable output? What about an economic interpretation of quantity? Under aneconomic reading, Congress is supposed to create those rights to exclude which result in thecreation of works with the greatest total economic value. Unfortunately, the economic value of awork depends on the legal rights Congress creates. [FN 168]
As the chart on the Pennsylvania Gazette demonstrates, [FN 169] furthermore, the quantitativeincrease meaning of 'progress-- was quite rare. I found only twenty-one numerical uses out of atotal of 575 occurrences of the word 'progress.--
The next problem is clarity. Why use an unusual meaning of a common word whenmore usual words exist? [FN 170] My research evidences that an eighteenth century writer of Englishwho wanted to indicate a desire for qualitative improvement would have been more likely to usesome form of 'improvement,-- [FN 171] 'perfection,-- [FN 172] or 'advancement.-- [FN 173] Pinkney, for example,suggested that Congress have the power 'to encourage by premiums & provisions, theadvancement of useful knowledge and of discoveries,-- echoing Bacon's treatise. [FN 174]
Additionally, the wide meaning of 'science-- makes 'qualitative improvement-- anunreasonable goal for an eighteenth century American. 'Science-- included all knowledge,especially all subjects of study. [FN 175] Not all of these can reasonably be supposed capable ofqualitative improvement. Consider the 'science-- often touted as central to education, moralphilosophy. [FN 176] If 'progress-- means 'qualitative improvement,-- we seem to be imputing to a massof eighteenth century Christians the belief that human effort will improve on the lessons taughtby Jesus and the Scriptures. [FN 177] The literary sciences are also problematic. Rhetoric, poetry, anddrama are 'sciences-- in eighteenth century terminology. Would the general public of the UnitedStates (or even a major segment of the Framers) go on record that later authors will out shineCicero, Homer, and Sophocles? I find this doubtful in light of these ancients almost canonicalplacement in the scholarly pantheon. [FN 178]
The contrary assumption makes the Framers bad politicians. Fear that any denigration ofrevealed religion would lead to the total breakdown of civilization was common in the eighteenthcentury. [FN 179] Even if the majority of the drafters took an extreme modernist position on literatureand religion, why enshrine this position in a constitution? At the least, antagonizing supportersof ancient writers or apostles seems an absurd way to start an important, contentious, politicalbattle.
Assuming, arguendo, that 'progress-- originally meant 'qualitative improvement,-- whathappens to the Progress Clause if we accept current scepticism about the possibility of objectivedecisions on qualitative improvement in some types of 'science--? [FN 180] Many commentators havenoted the later importance of scientific advances which were originally seen as merecuriosities. [FN 181] As for literature, art, and music, Justice Holmes warned us in 1903 that '[i]t wouldbe a dangerous undertaking for persons trained only to the law to constitute themselves finaljudges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.-- [FN 182] If Congress can only grant intellectual property rights which promote 'progress,-- but wehave no objective way to decide what constitutes 'progress,-- we have three options _ all bad
First option, because we must take the Constitution's limits seriously, and becauseCongress cannot tell if any proposed action is within constitutional limits, Congress no longerhas power to grant intellectual property rights. No one wants this result.
Second option, because no one can demonstrate that Congress' 'progress-- guess iswrong, and because Congress is presumed to act constitutionally, [FN 183] Congress can grant anyexclusive intellectual property rights it wishes. This seems to be Merges' position. [FN 184] Optiontwo, however, stands the Federalists' claims of a limited government on their head. Albeit indicta, furthermore, the Supreme Court has repeatedly asserted a limit lurking in the phrase 'topromote the progress of science and useful arts.-- [FN 185]
Third option, Congress cannot be sure what produces higher quality, so Congress may actto promote greater quantity on the assumption that some of the additional writings anddiscoveries will raise quality. This is the best of the three approaches, but it still has severalproblems. First, we are amending the Constitution without the required process. Second, we areselectively allowing the Constitution's words to change meaning over time _ discarding bothconsistency and the Original Meaning approach.
In sum, the leading alternatives to 'spread-- as the definition of 'progress-- do not work inthe context of the Progress Clause. Now that I have explained why 'spread-- should be acceptedif it is a possible definition, let us turn to the overwhelming linguistic evidence that 'spread-- isthe most likely eighteenth century American meaning of the word 'progress.--
V. Linguistic Evidence
Dictionary definitions have a pedigree in constitutional interpretation. The SupremeCourt cited dictionaries in approximately two hundred cases during the 1990s. [FN 186] Chief JusticeRehnquist famously used 'the first American Dictionary,-- Noah Webster's 1828 edition, todefine 'establishment-- in the Bill of Rights. [FN 187] Dr. Samuel Johnson's famous tome has alsofigured in constitutional jurisprudence. [FN 188] I will, therefore, start with these judicially approvedsources _ and then discuss why they are problematic evidence.
Johnson provides five definitions of the noun 'progress.-- First 'course; procession;passage-- as illustrated by Shakespeare's line 'I cannot, by the progress of the stars, Give guesshow near to day.-- [FN 189] Second is 'advancement; motion forward,-- illustrated only by linesinvolving physical motion. [FN 190] As definition three, Johnson separates out 'intellectualimprovement; advancement in knowledge; proficience.-- [FN 191] Fourth, 'progress-- may mean'removal from one place to another.-- Fifth, a 'progress-- is 'a journey of state; a circuit-- asBacon describes, 'He gave order, that there should be nothing in his journey like unto a warlikemarch, but rather like unto the progress of a king in full peace.-- [FN 192] In sum, Johnson suppliesdefinitions including both physical movement and mental change. Physical motionpredominates.
The 1828 Webster also emphasizes the physical motion aspect of 'progress.-- The firstdefinition is 'a moving or going forward,-- for example, 'a man makes a slow progress or a rapidprogress on a journey.-- [FN 193] The second is 'a moving forward in growth; increase; as the progressof a plant.-- Third is 'advance in business of any kind; as the progress of a negotiation; theprogress of arts.-- Fourth, is an 'advance in knowledge; intellectual or moral improvement;proficiency.-- For example, '[t]he student is commended for progress in learning; the christianfor his progress in virtue and piety.-- The fifth definition is 'removal; passage from place toplace.-- Sixth is 'a journey of state, a circuit,-- a usage credited to Addison and Blackstone. [FN 194] The source is interesting because American colonists were devotees of Blackstone'sCommentaries. [FN 195] A royal visit to the outlying districts may, therefore, be the eighteenth-century's core example of a 'progress.-- [FN 196]
Webster's third definition is confusing. Why is 'advancement in business-- the samemeaning as 'advancement in arts--? Is Webster using 'art-- to mean ' hand craft--? [FN 197] The bestreading of Webster's third definition is change over time towards a specific goal _ as completinga business negotiation or finishing a piece of hand crafting. I found repeated use of thisdefinition in the Pennsylvania Gazette. [FN 198]
In sum, these two dictionaries evidence the importance of physical motion in the 1789meaning of 'progress.--
Dictionary making by Johnson or Webster is not, however, the best evidence of wordusage in the 1789 United States. Such early dictionaries were fundamentally proscriptive, notdescriptive. We have an unimpeachable source for this, Johnson's and Webster's owndescriptions of their dictionary projects. Johnson wished his dictionary to spur 'the improvement of [his] native tongue, [FN 199] 'instruct-- its readers, [FN 200] and 'fix the English language.-- [FN 201] Johnson intended to include 'thewords and phrases used in the general [polite] intercourse of life, [and] found in the works ofthose . .. commonly stile[d] the polite writers,-- [FN 202] 'the best writers-- as chosen by Pope. [FN 203] Johnson's definitions are both upper class and inherently English_ as opposed to American.
As for Webster, [FN 204] while on the correct continent, his work is almost fifty years post-ratification. Words changed rapidly in that time period in the United States. [FN 205] Webster didattempt to insert American words and American meanings for words, especially words withpolitical overtones, [FN 206] but he did not claim to have taken any survey of public usage to obtainaccurate definitions. Like Dr. Johnson, Webster relied on the best writers, but, unlike Johnson,Webster's 'best writers-- included Americans such as Franklin, Washington, and Kent. [FN 207]
In sum, dictionary definitions are not enough. [FN 208] The dictionaries are not empiricalreports on the word usage of any group of persons. Additionally, Johnson is on the wrongcontinent and Webster is almost fifty years too late. Furthermore, each word has multipledictionary definitions. You do not have to believe in an evolving Constitution to refusedeterminative weight to either Webster or Johnson.
B. The Pennsylvania Gazette
The electronic age has provided a wonderful new access point to 18th century Americanword usage. We now have searchable access to the full text of each surviving issue of the NewYork Times of the American colonies, the Pennsylvania Gazette. Because 'progress-- is not atechnical word of the legal art, I consider the word usage of the Pennsylvania Gazette the bestcurrently available evidence of what 1789 American residents would have understand from theword 'progress-- in the Progress Clause. Many ordinary Americans limited their reading to theBible and the newspapers. [FN 209] The word 'progress-- does not appear in the King James Version ofthe Bible. [FN 210] Because the Progress Clause also lacks exposition in the standard sources oforiginal intent/meaning, [FN 211] many originalist scholars should agree on the Gazette's primacy.
To decide the meaning of 'progress,-- I ran a full text search for just that one word in allexisting issues of the Pennsylvania Gazette printed from its inception through the end of theseventeenth century. I located 575 uses of the word 'progress.-- Based on the results, Iformulated five distinct definitions. I then divided the occurrences into six categories: the fivedefinitions and mere quotations of the constitutional clause. [FN 212] The results are:
Definition Occurrences [a quote of the phrase in the Constitution] 6 movement through time, i.e. a chronologically arranged account withoutimplication of qualitative improvement [FN 213] 80 numerical increase without implication of qualitative improvement 21 change or action towards a pre-set goal, e.g. progress towards finishing a book 125 qualitative improvement 124 physical movement without implication of qualitative improvement, e.g.progress of a fire or a traveler 213 These results do not support the usual assumption that 'the progress of science and usefularts-- means qualitative improvement in 'science-- and 'useful arts.-- By far, the most commonuse of 'progress-- was for destructive physical movement. The single most common word in thephrase 'the progress of ....-- is 'fire.-- The Gazette speaks of the 'progress of a fire-- when amodern newspaper would report its 'spread.-- Fifty-one times fire made a 'progress-- throughsome human construction, such as a house. Eighty-five times the geographical 'progress-- was byan armed man, group of men, or an entire army _ quite often the enemy's troops. Thirteen timessome illness made a 'progress.-- The Gazette also reported the 'progress-- of other destructiveentities _ such as ravenous insects, [FN 214] bad weather, [FN 215] and possibly hostile ships. [FN 216] This patternof use is inconsistent with the persistent assumption that in colonial North America 'progress--meant 'qualitative improvement.--
The result is even more striking when one notes that the text of the proposed federalConstitution, the Federalist Papers, and numerous other ratification discussions were printed inthe Pennsylvania Gazette.
The Federalist Papers, for example, contain two uses of the word 'progress,-- [FN 217] neither ofwhich involves qualitative improvement. The Federalist printed in the Nov. 14, 1787 issue of thePennsylvania Gazette referred to the 'progress of hostility and desolation-- among the coloniesduring the Revolutionary War; the same description of the colonists also asserts that 'theirhabitations were in flames-- and 'many of their citizens were bleeding.-- [FN 218] Federalist No. 5 uses'progress' while arguing that multiple confederacies are not a good idea because, inter alia, theywill not remain 'on an equal footing in point of strength.-- 'Independent of those localcircumstances which tend to beget and increase power in one part, and to impede its progress inanother, we must advert to the effects of that superior policy and good management ....-- [FN 219] Let us, now, look more closely at the 124 entries where 'progress' might mean some typeof qualitative improvement (but not change over time towards a pre-set goal). The followingchart lists the subjects which were said to progress qualitatively:
subject occurrences individual humans or schools 15 populated geographic areas 27 religious vices or virtues 12 arts 4 commerce & manufacturing 10 mankind 7 architecture 1 public & private improvements 1 liberty 3 militia 7 liberal sciences 6 science 6 national assembly 1 agriculture & commerce 1 revolution 5 government 2 language 2 poetry 1 useful arts 1 illness 2 arts & sciences 2 geographic knowledge 1 truth & reason 1 political knowledge 2 dangerous innovations 1 [unclear oddities] 3 Next, we should recognize the difference between a person (or persons
[FN 220] ) showingqualitative improvement in a skill or pre-existing knowledge set and the improvement of theknowledge set available. Only the second is The Idea of Progress. The first is the acquiring ofpersonal proficiency _ as covered by Webster's fourth definition and Johnson's third. Congruently, both of Webster's examples of this definition involve a person obtaining moreproficiency. At least three of Johnson's five examples involve increase in some specificperson's proficiency in knowledge or virtue.
[FN 221] Seventy of the Gazette's 'quality-- occurrences refer to increase in proficiency by someperson or group of persons: 'progress-- by schools, individuals, populated geographic areas, andthe national assembly. Several of the other progressing subjects are likely to be increasing inquality by increasing geographically or quantitatively (numerically or in economic value) _religious vices and virtues, commerce & manufacturing, public & private improvements,agriculture and commerce, revolution, illness, and dangerous innovations; these total anotherthirty-two occurrences. Deducting the three oddities, the proficiency increases, and the quantityincreases, leaves us only twenty possible occurrences of 'progress' for quality improvement inthe fund of knowledge, The Idea of Progress.
To recheck, I went back through my notes looking for occurrences of 'progress-- thatmight be references to improvement in the knowledge-base. I found forty-six which, on firstreading, might be so construed. These occurrences are listed chronologically in the chartimmediately below.
Year ItemNo. [FN 222] Subject which isprogressing Substrate in/throughwhich progress is beingmade Comments 1739 3638 our colony [not mentioned] resignation speech ofspeaker ofPennsylvanialegislature 1739 same our colony [not mentioned] same 1752 14881 human mind 'an account of the gradualprogress of the humanmind, from its firstdawning of sense to thehighest perfection, bothintellectual and moral ofwhich it is capable-- advertisement for'Noetica: or the firstprinciples of humanknowledge,-- authornot mentioned. Thebook is 'very properto form the minds ofyouth in knowledgeand virtue.-- [FN 223] 1754 16632 liberal sciences [not mentioned] announcement oflottery to raise fundsfor College of NewJersey 1755 17858 the earliest settlers of South Carolina 'broughtwith them the Laws of the Mother Country ... theprivilege of enacting laws for their goodGovernment, without which they could have madeno progress-- [but asking legislature not to pass anyunusual act without first learning King's pleasure] speech by Gov. of S.Carolina at openingof legislative session 1771 48758 science 'in this infant country-- open letter fromtrustees of a charityschool to Lt. Gov.John Penn on the sadoccasion of his returnto England 1771 49682 'the French language is like to keep pace with theliberal arts and sciences which have already madesuch great progress in this infant colony-- advertisements forpupils to learn French 1771 49224 'Cultivation of thearts and Sciences-- 'your Province-- Letter from man inWilliamsburg, VA toPhiladelphia,mentioning rewardgiven byPennsylvaniaAssembly to personwho 'improved theOrrery-- 1772 50481 science [not mentioned] Letter from AmericanPhilosophical Societyasking readers tocontribute readingson magneticvariations forcompilations into auseful report 1773 52679 'useful arts-- in America advertisement for alocally producedvarnish 1775 57092 province ofPennsylvania in science and literature opening of flowerypolitical essay byCamillus 1776 59903 arts and sciences in America address by Governorof Georgia to statelegislature;requesting morepersons tomanufacturegunpowder 1776 59857 men 'as individuals-- subtopic in bookbeing advertised,Lord Kaims (HenryHome), 'SixSketches on theHistory of Man-- [FN 224] 1776 same 'the origin andprogress of arts-- [not mentioned] subtopic in book 1776 same 'the female [sex]-- [not mentioned] subtopic in book 1777 60919 USA towards 'an elegance offreedom-- address inPennsylvanialegislature 1778 62959 truth [not mentioned] advertisement for Dr.Price's book,'AdditionalObservations onCivil Liberty and thewar with America-- [FN 225] 1782 67818 arts USA wording ofrecommendation ofan American editionof the HolyScriptures. Congressgave printerpermission to publishthis recommendation 1783 69297 language etc.[phrase used is 'riseand progress oflanguage, etc']
[unmentioned] advertisement forHugh Blair's book'Lectures onRhetoric and BellesLettres-- [FN 226] 1783 same poetry same 1786 73117 'these laudablesciences-- of 'fraudand injustice-- citizens of Rhode Island ironic opening tocommercialannouncement that aRI person had paid amortgage in papercurrency 1788 75402 'politicalknowledge-- [unmentioned] Dec. 10 letter from'an american citizen--giving 'thoughts onthe subject ofamendments to thefoederal constitution-- 1788 75380 'political science-- [unmentioned] Dec. 3 ' -- 1788 same 'our progress-- 'to greater perfection-- same 1789 75916 the arts 'their progress andimprovement-- advertisement forsubscription to adictionary especiallyuseful for artificers 1789 76360 'an industrious andfrugal people-- 'towards wealth andcomfort-- Letter from NorthCarolina on interalia ratification ofUS Const. 1789 76338 truth and reason Paris Aug. 30, 1789 letterfrom Paris 1789 same 'such ideas--[limitation of king'spower] 'from the days of MagnaCarta to the last revolutionin England, theirretrograde motion from thetime of the great Henry, toLouis XVIth in France, andtheir dormant state formany ages in all of Europe,it is astonishing ..-- same 1789 76353 science in not falling for delusions,such as tales of evil spirits from the Gazette ofthe United States,The Tablet No.LXXII 1790 76728 humanity [not mentioned] announcement ofcontents of the May1790 issue of 'TheUniversal Asylumand ColumbianMagazine-- 1790 76909 science in America announcement ofdialogues spoken atpubliccommencementexercises of thecollege ofPhiladelphia 1790 77075 'violated rights ofreason andhumanity-- in France Americans shouldcongratulatethemselves on givingFrance the spirit ofliberty 1790 77159 'further progress is daily making in the geographicknowledge of our country-- advertisement formaps to be publishedon subscription 1790 76877 sciences [not mentioned] from title of a'dialogue-- performedat collegecommencement 1791 77582 liberty USA ceremonial addresson the Anniversary ofthe Columbian Orderby the Sons ofTammany 1793 78935 architecture USA announces prizechoice in competitionfor plan of a newhotel 1794 79575 the arts and sciences in the USA letter complaining ofBritish actionsagainst the USA;responds to King'sexpression ofpleasure in prosperityof the USA 1794 79441 mankind [not mentioned] letter from agentleman in thewestern territoryreporting revoltLouisiana revoltagainst Spain 1795 80551 arts in the USA announces inventionof a machine 1796 81010 USA [not mentioned] Patriotic Toast at acelebration of thePresident's Birthday 1796 81165 human race[implied] [unclear, seems to be arts,sciences, liberty, socialhappiness, and philosophy] US Constitutionshould be amended toclarify relative treatypower of Presidentand Congress 1797 81970 human mind [not mentioned] discussion ofdistribution of booksto the public librariesof the FrenchRepublic. Mentionssome libraries shouldcontain 'everythingthat can perfectreason, industry, andthe arts.-- 1797 82039 of an enlightenednation to the summit of publicvirtue and happiness speech atentertainment givento Pres. Adams bythe citizens of NewYork 1798 82518 'sacred flame ofliberty-- among English people,including fleets and armies English traitor'sletter to Frenchgovernment 1798 82268 'revolutionaryprinciples-- in Cantons of Switzerland 1800 83321 science [not mentioned] Toast atIndependence Dayparty of the Societyof Cincinnati A more critical review of these forty-six occurrences of 'progress' demonstrates thepaucity of relevant Idea of Progress uses. First, seventeen are from after ratification. They mayeasily be unreflective echoes of the constitutional phrase. Fully thirty are puffs _ writingsintended for emotional effect, such as advertisements or ceremonial speeches. The empoweringclauses of a legal document use language much more precisely. [FN 227] Many of the references tobooks may easily be using 'progress-- in the historical/temporal organization sense. A numberare more reasonably read as referring to geographic spread or numerical increase.
Let us look more closely at the Gazette's numerous 'progress---mentioningadvertisements for books _ some available to buy and others which will become available if theadvertiser receives sufficient advance subscriptions. The most common such book advertised isBunyan's Pilgrim's Progress. [FN 228] In that famous religious text, 'progress-- is an allegoricaljourney. [FN 229] In 1771, James Beattie, a well known literary scholar, published The Minstrel; or,The Progress of Genius, recounting the allegorical journey of a poetical genius. [FN 230] Many titlesinclude the phrase 'the rise and progress of ___--. These books are merely histories, as shown bythe chronological use of the term 'progress-- in descriptions of books with the word 'history-- intheir titles. [FN 231]
None of the forty-six possibilities avoids all of these problems.
In summation, the Pennsylvania Gazette entries demonstrate that 'progress' wasoverwhelming used to mean something other than qualitative improvement, the Idea of Progress. The most common usage was 'spread,-- or some other type of physical movement.
C. Idea of Progress Literature
Even if the most common meaning of 'progress-- was something other than 'qualityimprovement of the human knowledge base,-- my thesis would be problematic if the standardeighteenth century method of denoting such quality improvement had been the word 'progress.-- My research, however, demonstrates the opposite. During discussions of the Idea of Progressthesis, late eighteenth century speakers of English more commonly used 'improvement,--'perfection,-- or 'advancement-- (as opposed to 'progress--) when referring to the betterment ofmankind's knowledge base.
On December 11, 1750, Turgot gave a public lecture at the Sorbonne on the philosophicaladvances of the human mind. [FN 232] This may have been the public debut of the Idea of Progressthesis in its Enlightenment formulation. [FN 233] The philosophical theory is based on the Lockianconcept that man's mind at birth is a clean slate. All man's ideas originate in some form ofsensory input. Since all men basically have the same sensory equipment and roughly similarinputs, all men tend towards the same ideas. [FN 234] Over time, [FN 235] mankind as a whole will accumulateand integrate information and ideas; over time, therefore, as by natural law, mankind willadvance in knowledge and virtue. Different nations, however, will advance at different ratesbecause of local conditions. Many nations, at many times, furthermore, will regress. Natural lawrequires merely that mankind as a whole advance over time. [FN 236] Condorcet closely followedTurgot in time and theory. [FN 237] Both men wrote in French. [FN 238] The Idea of Progress, of course, allows the word 'progress-- to accumulate the disparatemeanings discussed above. The history of mankind becomes a chronicle of mankind'simprovement _ thus allowing the extension of the noun 'progress-- from 'journey-- to'allegorical journey-- to 'movement through time-- to 'quality improvement over time.-- If youbelieve that natural law will necessarily lead to the improvement of mankind over time, instancesof chronological progression largely overlap instances of quality improvement. Additionally, ifyou believe that the improvement of human society and its knowledge base require the diffusionof knowledge, the 'progress of knowledge-- may refer to its spread. These overlaps often obscurethe writer's definition of the single word 'progress.--
Condorcet's Life of M. Turgot was printed in London, in English, in 1787. [FN 239] While itmay have reached North America, the Pennsylvania Gazette collection contains no mention ofit. [FN 240] This book contains thirty uses of the word 'progress.-- Seventeen seem to refer to thequalitative improvement of either some type of science or of mankind as a whole. [FN 241] Seven referto physical movement. [FN 242] Three could as easily refer to the quality improvement of some type ofknowledge or the physical diffusion of that knowledge. [FN 243] Three refer to chronologicalordering. [FN 244] The book, however, uses another word to mean quality improvement of either aknowledge set or mankind at least twenty-four times. [FN 245]
Well known English-language treatments of the Idea of Progress from the seventeenthand eighteenth centuries are found in books on disparate subjects. Francis Bacon's subject washow to advance human knowledge. His call for empiricism was followed in 1655 by MericCasaubon's scientific treatment of incidents commonly explained religiously. BernardMandeville, George Berkeley, Lord Shaftesbury, Francis Hutchinson, and Adam Smith treat theIdea of Progress as part of moral philosophy. Adam Smith then expands moral philosophy intoeconomics. [FN 246]
Let us start with Francis Bacon. Bacon usually wrote in Latin, but around 1605 he didpublish an English work addressed to James I of England, 'The Twoo Bookes of Francis Bacon:Of the Proficience and Advancement of Learning, Divine and Humane.-- [FN 247] Bacon attempts toprove the practical usefulness of increasing mankind's knowledge of the natural world, surveysthe then-current state of knowledge, and presents suggestions for action. [FN 248] In the course of thework, Bacon uses the word 'progress-- four times _ twice for a specific human's increase inproficiency, [FN 249] once for a journey, [FN 250] and once for change over time. [FN 251] As displayed in his title,Bacon uses 'advancement-- when referring to improvement in the human knowledge base. [FN 252]
Meric Casaubon uses the word 'progress-- three times in 'A Treatise ConcerningEnthusiasm.-- [FN 253] Twice the word means history, that is a chronological ordering of events. [FN 254] Thethird use denotes quality improvement in the sense of a specific person's obtaining proficiency. [FN 255]
In 1711, Anthony Ashley Cooper, third Earl of Shaftesbury, published an almostcomplete collection of his earlier writings as 'Characteristics of Men, Manners, Opinions,Times.-- [FN 256] The collection includes eight uses of the word 'progress.-- I classify seven of these asmeaning history, a chronological ordering. [FN 257] The eighth refers to specific persons gainingproficiency. [FN 258]
Replying to Shaftesbury, [FN 259] Bernard Mandeville's 'The Fable of the Bees-- presented thenotorious thesis that many of mankind's selfish actions help society. [FN 260] The first part waspublished under another title in 1705, but did not attract much attention until republished in1723. While negative comments accumulated, Mandeville wrote a second volume which waspublished in 1728. [FN 261] By 1787, the work was sufficiently well known in the United States to bereferred to in a stage play. [FN 262] The work runs almost 800 pages [FN 263] but only uses the word'progress-- four times. One use refers to specific persons obtaining proficiency. [FN 264] One refers toapproaching a set goal. [FN 265] The other two refer to the improvement of the human race's capabilityor knowledge base. [FN 266] When referring to the quality improvement of human knowledge orcharacter, however, Mandeville is much more likely to say 'perfection,-- 'improvement,-- or'advance.-- [FN 267] In 'A Letter to Dion,-- Mandeville never uses the word 'progress.-- He does refer,however, to 'the Advancement of worldly Glory.-- [FN 268]
George Berkeley wrote 'Alciphron, or the Minute Philosopher-- in Rhode Island whilewaiting in vain for Parliament to fund a missionary college in Bermuda. 'Alciphron-- waspublished in England in 1732. It quickly attracted comment, but was generally denigrated. [FN 269] The text includes eight uses of the word 'progress.-- Six times 'progress-- means chronologicalordering; [FN 270] once the 'progress-- is a metaphorical journey by the soul; [FN 271] the last use refers to aperson's increase in proficiency. [FN 272]
Looking for the word 'progress,-- I read a number of works by Francis Hutchinson:Reflections Upon Laughter and Remarks upon the Fable of the Bees, [FN 273] An Inquiry into theOriginal of Our Ideas of Beauty and Virtue, [FN 274] Reflections on Our Common Systems of Morality,and On the Social Nature of Man. [FN 275] I located not one use of the word 'progress.-- Hutchinsonuses the word 'improvement-- when discussing qualitative advances in science or arts. [FN 276]
Now for Adam Smith's two main works: The Theory of Moral Sentiments [FN 277] and TheWealth of Nations. [FN 278] The Theory of Moral Sentiments includes only two uses of the word'progress,-- neither for quality improvement of any kind. [FN 279] The Wealth of Nations containsmany instances of the word 'progress.-- The clearest support of my claim (that 'progress--usually does not mean 'quality improvement--) is that Smith twenty-eight times uses the phrase'the progress of improvement-- to mean the chronological progression of quality increase. [FN 280] Inthis phrase, 'improvement-- means 'advance in quality.-- In an additional thirty-eight instances,Smith uses 'progress-- (by itself) to mean chronological ordering. [FN 281] Twice 'progress-- meansadvancement toward a preset goal; [FN 282] once it means journey; [FN 283] once it means a person's increasein proficiency. [FN 284] Smith uses 'progress-- only four times to mean quality improvement of someknowledge or skill base. [FN 285] Improvement in quantity (either numerical or economic) is the bestmeaning of 'progress-- seven times. [FN 286] On sixteen occasions, Smith uses 'progress-- in a way thatmight mean either quantity or quality improvement, [FN 287] or a mixture of both. [FN 288] Smith's favoritemeaning for 'progress,-- therefore, is chronological ordering, i.e. history. As discussed earlier, inthe Progress Clause, 'progress-- as 'chronological ordering-- reduces into quantitative orqualitative improvement. [FN 289]
. . . . .
Looking at all the linguistic evidence, I conclude that an ordinary American of 1789 wasmost likely to have read 'progress-- in the Progress Clause of the Constitution to mean 'spread,--i.e. to allow Congress to grant limited monopolies only when they promote the distribution ofscience and the useful arts throughout the population.
This article uses linguistic evidence to disprove a long standing assumption about theProgress Clause, which gives Congress 'the power ... To Promote the Progress of Science andthe useful Arts by securing for limited times to Authors and Inventors the exclusive right to theirrespective writings and discoveries.-- [FN 290] The word 'progress-- is not a reference to theEnlightenment Idea of Progress and, thus, an anachronistic bias incapable of cabining Congress. The word 'progress-- means 'spread.-- Congress does not have the power to create anyintellectual property regime it thinks will increase the Gross National Product, campaigndonations from holders of large copyright portfolios, or world harmonization. [FN 291] Any right toexclude others from use of writings and discoveries must promote the spread of knowledge andtechnology. This clarification of the Constitutional language warrants court overthrow of boththe circumvention limitations in the Digital Millennium Copyright Act and the twenty yearsubsidy provided copyright holders by the Copyright Term Extension Act.
Long live the public domain. [FN 292]
FN 1 Earlier academics call this the 'Copyright and Patent Clause.-- Since neither'copyright-- nor 'patent-- appears in the text, I have been using the phrase, 'Intellectual PropertyClause.-- See Malla Pollack, Unconstitutional Incontestibility? The Intersection of the IntellectualProperty and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v.Silstar Corp., 18 Seattle Univ. L. Rev. 259, 260 & n.1 (1995). That name, however, both useswords not in the text and incorrectly implies the primacy of the rights granted patent andcopyright holders by Congress. Yochai Benkler has proposed the textual 'Exclusive RightsClause.-- See Yochai Benkler, Through the Looking Glass: Alice and the ConstitutionalFoundations of the Public Domain, in Duke Conference on the Public Domain: Focus PapersDiscussion Drafts 192, 194 & n.3 (2001) (on file with author), forthcoming Duke L. Rev. (2002)& available at <http://www.law.duke.edu/pd> (last visited Nov. 2001). As this article explains,the best name would be the 'Progress Clause.-- Robert Goldwin earlier suggested the samename, but under the assumption that 'progress-- referred to 'quality improvement.-- See RobertGoldwin, Why Blacks, Women, and Jews Are Not Mentioned in the Constitution and OtherUnorthodox Views 37- 41 (1990) .
FN 2 Visiting Associate Professor/Visiting Scholar, Northern Illinois Univ., College of Law.My thanks for helpful comments to attendees at the Intellectual Property Section program at the2002 AALS Annual Meeting, participants in the First Annual Intellectual Property Conferencesponsored by Benjamin N. Cardozo School of Law & DePaul College of Law (2001); the facultycolloquium of Dayton Univ. School of Law, Ann Barlow, Wendy Gordon, Eileen Kane, DennisKarjala, Larry Lessig, Jessica Litman, Neil Netanel, Timothy Philips, Richard Saphire, E. C.Walterscheid, and Peter Yu. All mistakes rest with the author.
FN 3 This slogan was registered by General Electric with the U.S. P.T.O. on July 7, 1964 for,inter alia, 'periodic entertainment programs-- and first used in commerce May 2, 1950. Theservice mark registration has expired. See Registration No. 0772966 <http://tess.uspto.gov> (visited Nov. 19, 2001). The slogan climaxed the institutional advertising pitches on the GeneralElectric Theater which ruled Sunday night on CBS from February 1953 through May 1962. Formost of this time, the slogan was delivered by proto-United States President Ronald Regan. G.E. claimed that '[p]rogress in products goes hand in hand with providing progress in thehuman values that enrich the lives of us all.-- See William L. Bird, General Electric Theater, at<http://www.mbcnet.org/ETV/G/htmlG/general elect.htm> (visited Nov. 19, 2001).
FN 4 See infra Sections IV and V. This is the core of my analysis and has the strongestevidentiary support.
FN 5 Congress, however, passed both the first patent and the first copyright statute in thesecond session of the first congress. Patent Act of 1790, 1 Stat. 109; Copyright Act of 1790, 1State 124. Neither the patent nor the copyright statute has ever been allowed to lapse.
FN 6 See Malla Pollack, The Owned Public Domain: The Constitutional Right Not to beExcluded _ or the Supreme Court Chose the Right Breakfast Cereal in Kellogg v. NationalBiscuit Co., 22 Hastings Comm/Ent L.J. 265, 267-291 (2000). This is the most disputable part ofmy thesis.
FN 7 Such a right to exclude is closer to a privilege allowing use than to a fee simpleabsolute. The remandermen (the commoners) hold a future interest which will ripen into a muchmore robust quasi-property right. 'Commoner-- here means a person with an ownership right notto be excluded from using the resource, the 'common,-- in 18th century parlance. This is JohnLocke's definition of 'property,-- something '[t]he nature whereof is, that without a Man's ownconsent it cannot be taken from him.-- John Locke, Two Treatises of Government, SecondTreatise § 193. This is a property law regime and should not be confused with the nature of good'owned.-- The definition includes both common-property regimes (where a limited number ofpersons have rights not to be excluded) and open-access regimes where no one may be excluded. See Charlotte Hess & Elinor Ostrom, Artifacts, Facilities, and Content: Information as aCommon-Pool Resource, in Duke Conference on the Public Domain: Focus Papers DiscussionDrafts 44, 53-57 (2001) (on file with author), forthcoming Duke L. Rev. (2002) & available at<http://www.law.duke.edu/pd> (last visited Nov. 2001). Unlike grass for sheep, or books inlibraries, ideas are neither rival nor subtractable.
FN 8 Universal City Studios, Inc. v. Corley, _ F.3d _, 2001 WL 1505495, 60 U.S.P.Q.2d1953 (2d Cir. No. 00-9185, Nov. 28, 2001, aff'g sub nom Universal Studios v. Remeides, 111 F.Supp.2d 294 (S.D.N.Y. 2000) (upholding anti-circumvention provisions of the DigitalMillennium Copyright Act, hereinafter 'DMCA--). See infra text accompanying notes 23-32(discussing DMCA).
FN 9 Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001) (upholding Copyright Term ExtensionAct, hereinafter 'CTEA--), cert. granted sub nom. Eldred v. Ashcroft (Feb. 19, 2002; No. 01-618). See infra text accompanying notes 33-54 (discussing CTEA). See also Golan v. Ashcroft,Civ. 01-B-1854 (D. Colorado; complaint filed Sept. 19, 2001) (raising constitutional issues withboth CTEA and Copyright Term Restoration Act, codified at 17 U.S.C. 104A)<http://con.law.harvard.edu/openlaw/golanvashcroft/> (visited Jan. 10, 2002).
FN 10 See infra notes 212-231 and accompanying text.
FN 11 See infra notes 168-169, 212 and accompanying text.
FN 12 See infra notes 162-185, 212-231 and accompanying text.
FN 13 See infra notes 212-231 and accompanying text.
FN 14 See, e.g., Statement of Howard Coble, Chair of Subcommittee on Courts andIntellectual Property at Hearing of July 27, 2000 by that subcom. Regarding Sovereign Immunityand Protection of Intellectual Property at 1 ('Congress has enacted [intellectual property] lawssince 1790, resulting in the development of American intellectual property that is the envy of theworld. It is one of the top US exports, generates billions of dollars in revenue, creates jobs, andenriches the lives of the American people and the world.--)<http://www.house.gov/judiciary/cobl0727.htm> (visited Dec. 15, 2001).
FN 15 See, e.g., Jessica Litman, Copyright Legislation and Technological Change, 68 OregonL. Rev. 275 (1989) (discussing stake-holder negotiation process used for drafting United Statescopyright statutes and how this process allows entrenched interests to block technological changein order to protect their current market power); L. Ray Patterson, Eldred v. Reno: An Example ofthe Law of Unintended Consequences, 8 J. of Intel. Prop. L. 223, 230 (2001) (asserting copyrightindustry lobbyists have written United States copyright statutes since 1905). Assuming that thewillingness to spend large sums on lobbying signals a request in the public's economic interest isirrational. See Richard E. Baldwin & Frederic Robert-Nicoud, Entry and Asymmetric Lobbying:Why Governments Pick Losers, Nat'l Bur. of Econ. Res. Working Paper No. W8756 (assertinggroups in economic decline spend more on lobbying) available at <http://www.ssrn.com> (visited Feb. 7, 2002), or from authors at email@example.com ; firstname.lastname@example.org ;Akira Okada & Arno Riedl, Reciprocity, Inefficiency and Social Exclusion: ExperimentalEvidence, Tingergen Inst. Discussion Paper No. TI 99-044/1 (asserting exclusive coalitions resultin large efficiency losses) available at <http://www.ssrn.com. > (visited Feb. 28, 2002).
FN 16 See, e.g., Julie E. Cohen, Lochner in Cyberspace: The New Economic Orthodoxy of'Rights Management--, 97 Mich. L. Rev. 462 (1998) (criticizing economic approach towardscopyright policy); Julie E. Cohen, Copyright and the Perfect Curve, 53 Vanderbilt L. Rev. 1799(2000)(same).
FN 17 See 17 U.S.C. § 106; 35 U.S.C. § 271. See also Rebecca S. Eisenberg, Patents and theProgress of Science: Exclusive Rights and Experimental Use, 56 Univ. of Chicago L. Rev. 1017,1086 (1989) (calling for an experimental use exception to patent infringement because'enforcement of [patents] against subsequent researchers can sometimes interfere with furtherprogress in the field of the invention.--). The level of protection is an especially complex issuebecause larger firms and firms holding larger patent portfolios have greater ability to chill otherentities' research and development behavior. See Jean O. Lanjouw & Mark Schankerman,Enforcing Intellectual Property Rights, working paper 8656 at 3-6, Nat'l Bur. Of Econ. Res.(presenting results of empirical study of U.S. patent litigation) <http://.www.nber.org/papers/w8656> (visited Dec. 21, 2001) (copy on file with author). Asimilar portfolio advantage has been hypothesized in copyright. See Yochai Benkler, Siren Songsand Amish Children: Autonomy, Information, and Law, 76 NYU L. Rev. 23, 106-111 (2001)(explaining power of holding a large copyright portfolio).
FN 18 For example, copyright no longer requires notice or prompt registration. See 17 U.S.C.§§ 401(a), 408(a). How do you make an offer without knowing the identity of the copyrightholder? See Jessica Litman, Remarks on The Public Domain and the Commons: History &Theory, at Duke Conference on the Public Domain (Nov. 2001) (pointing out that the UnitedStates' joining the Berne Convention has resulted in reversal of the baseline assumption that anycopyrightable item without clear notice was available for use without permission or liability)available in realtime audio at<http://realserver.law.duke.edu/ramgen/publicdomain/pubdom_1.smil> (last visited Dec. 26,2001).
FN 19 Such biases support the fair use status of much parody. See Campbell v. Acuff-RoseMusic, Inc., 510 U.S. 569, 591-92 (1994) (recognizing that holder of copyright in original isunlikely to give permission to parody underlying work). See also Wendy Gordon, Fair Use AsMarket Failure: a Structural and Economic Analysis of the Betamax Case and its Predecessors,82 Colum. L. Rev. 1600 (1982).
FN 20 See Ashcroft, 255 F.3d at 854 ('I do not accept that it is sufficient for Congress tomerely articulate some hypothetical basis to justify the claimed exercise of an enumeratedpower.--)(Sentelle, J. dissenting from denial of rehearing en banc of case involving Congress'extension of copyright term); Reply Brief of Appellant, Eldred v. Reno, reprinted in 18 CardozoArts & Ent. L. Rev. 655, 662-663 (2000) (arguing that Feist was not decided under rational basisreview).
FN 21 See Reply Brief, supra note 20, at 668-669; Yochai Benkler, Free As the Air toCommon Use, 74 N.Y. L. Rev. 354 (1999).
FN 22 See Malla Pollack, Dealing with Old Father Williams, entry in symposium on "Eldredv. Ashcroft: Intellectual Property, Congressional Power and the Constitution,"forthcoming Loyola of Los Angeles L. Rev. Fall 2002.
FN 23 Congress notoriously does not look at the facts allegedly supporting industry cries forgreater rights to exclude. See, e.g., Steven Breyer, The Uneasy Case for Copyright In Books, 84Harv. L. Rev. 281, 251 (1970) (general statement); Malla Pollack, The Right to Know?:Delimiting Database Protection at the Juncture of the Commerce Clause, the IntellectualProperty Clause, and the First Amendment, 17 Cardozo A.E.L.J. 47, 89-97 (1999) (discussinglack of evidence supporting Congress' 'factual findings-- in proposed database protection bill).
FN 24 See, e.g., 144 Cong. Rec. H7102 (daily ed. Aug 4, 1998)(remarks of Rep.Slaughter)(praising Digital Millennium Copyright Act because it helps 'combat the devastatingloses to American companies that are being caused by the international piracy of copyrightedworks.--).
FN 25 17 U.S.C. 107.
FN 26 17 U.S.C. § 1201. Even without technological barriers, the cost of standing suitpresumably chills a large number of arguably fair uses.
FN 27 The relationship between quantity and quality is discussed infra section IV. As to thisspecific statute, the balance is skewed because the method of protection strongly discouragesquality improvement in one specific 'useful art,-- encryption technology. See, e.g., Copyrights:Content Owners Making New DMCA Claims; GNUTELLA sites, SMI Expert All Get Letters,BNA Patent, Trademark, & Copyright Daily (May 3, 2001) (reporting cease and desist letter sentby the Secure Digital Music Initiative warning Princeton Univ. professor Edward Felton not torelease his research on decryption technology for peer review; Felton decided not to presentpaper at a conference; SDMI's attorney then denied intention to sue academics) (available onLEXIS as 5/3/2001 PTD d3).
FN 28 Reading 'progress-- as 'spread,-- does not eliminate the constitutional basis of therequirement for non-obviousness in patent law. As to the 'useful arts,' quality improvement is required by the words 'inventors-- and 'discoveries.--
FN 29 See, e.g., Adam B. Jaffe, The U.S. Patent System in Transition: Policy Innovation andthe Innovation Process, Nat'l Bur. Econ. Res., Working Paper (1999) (reviewing recenteconomic analyses of patent protection); A. Samuel Oddi, Un-Unified Economic Theories ofPatents, 71 Notre Dame L. rev. 267, 268 n. 6 (1996)(mentioning conflicting literature on patents'economic effects).
FN 30 The basic question would be how many times a person accessed a work. P x W = A. Distribution of the people with access (geographically, demographically etc) might be relevant,as might the diversity etc. of the works accessed.
FN 31 But see Jane Ginsburg, Copyright and Control Over New Technologies ofDissemination, 101 Colum. L. Rev. 1613, 1618, 1636 (2001) (asserting possible benefits topublic from DMCA because inter alia (i) Library of Congress's first study of statute's effects didnot find disaster, and (ii) some copyright holders might not release works in digital form sansDMCA). Professor Ginsburg's brilliant and nuanced analysis over looks, inter alia, (i) theextreme narrowness of the Library's study, (ii) the existence of works whose copyright holdersare unclear, and (iii) the DMCA's grant to copyright holders of power to limit access to non-copyrightable material.
FN 32 The hurdle, of course, would vary depending on which brand of rational review thecourt employed. The Supreme Court has looked hard at Congress' evidence in several recentcases where Congress had purported to abrogate state sovereign immunity, see Bd. of Trustees v.Garrett, 531 U.S. 356, 367-72 (2001); Florida Prepaid Postsecondary Education Expense Bd. v.College Savings Bank, 527 U.S. 627, 639-41 (1999), but rational basis review is most commonlytoothless, see Richard B. Saphire, Equal Protection, Rational Basis Review, and the Impact ofClaiborne Living Center, Inc., 88 Kentucky L. J. 591, 639 (1999-2000) ('Claiborne's implicitchallenge to the reigning equal protection paradigm proved to be short-lived. As things nowstand, expecting that a court might invalidate a classification subject to rational basis scrutiny islike expecting to win the lottery.--). But see Ashcroft, 255 F.3d at 854 ('I do not accept that it issufficient for Congress to merely articulate some hypothetical basis to justify the claimedexercise of an enumerated power.--)(Sentelle, J. dissenting from denial of rehearing en banc ofcase involving Congress' extension of copyright term).
FN 33 The Copyright Term Extension Act of 1998 (hereinafter 'CTEA--), Pub. L. No. 105-298, 112 Stat. 2827 (adding twenty years to copyright term for both pre-existing and new works).
FN 34 See Eldred, 239 F.3d at 378.
FN 35 See id. at 379.
FN 36 See Reply Brief of Appellant, Eldred v. Reno, reprinted in 18 Cardozo Arts & Ent. L.J. 655, 660-62 (2000) (making this argument); Patterson, supra note 15, at 234 (same).
FN 37 See Paul J. Heald & Suzanna Sherry, Implied Limits on the Legislative Power: TheIntellectual Property Clause as an Absolute Constraint on Congress, 2000 Univ. of Il. L. Rev.1119, 1174-76; Minority Views of Mr. Brown in S. Rept. 104-31 (2d Sess.).
FN 38 21 Jam. I c.3 (1624).
FN 39 I use these terms to clearly distinguish the rights allowed by the Constitution fromthose Congress has chosen to create by statute (patents and copyrights). See Pollack,Unconstitutional Incontestibility?, supra note 1, at 291 (introducing terminology and explainingits usefulness).
FN 40 See Malla Pollack, Purveyance and Power, or Over-Priced Free Lunch: TheIntellectual Property Clause as an Ally of the Takings Clause in the Public's Control ofGovernment, 30 Southwestern Univ. L. Rev. 1 (2000) (providing detailed historical backing forthesis that Progress Clause may not be used to side step government's fiscal accountability).
FN 41 See Feist Publications, Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 346-47 (1991). Similarly, 'inventor-- and 'discovery-- have been held to require 'non-obviousness-- for patentgrants. See Graham v. John Deere Co., 383 U.S. 1, 5-12 (1966).
FN 42 The use of the plural 'times-- does not undercut this definition. The plural (i) allowsthe original grant to include a renewal term, and (ii) allows patents and copyrights to havedifferent term limits.
FN 43 See Pollack, supra note 6 [Owned Public Domain], at 291-93 (discussing case lawsupport for the bargain theory of patents).
FN 44 See Heald & Sherry, supra note 37, at 1162-1164 (finding a quid pro quo principle inthe Progress Clause).
FN 45 See S. Rept. 104-315 (2d Sess.) at 3-19. The export rationale is greatly weakened bythe copyright industry's major reliance on foreign-made copies of American works. See Pollack,supra note 23, at 94-96 (discussing fudge of difference between 'foreign sales-- and 'exports-- ina report submitted to Congress in support of the DMCA).
FN 46 See also infra note 168 and accompanying text (further discussing economic reading of'progress.--).
FN 47 See Dennis S. Karjala, Statement of Copyright and Intellectual Property LawProfessors in Opposition to H.R. 604, H.R. 2589, and S. 505 'The Copyright Term ExtensionAct,-- Submitted to the Committees on the Judiciary U.S. Senate [and] U.S. House ofRepresentatives 21 (Jan. 28, 1998)<http://www.law.asu.edu/HomePages/Karjala/OpposingCopyrightExtension/legmate/1998Statement.html> (visited Jan. 7, 2002) (demonstrating irrationality).
FN 48 See Heald & Sherry, supra note 37, at 1173-74 (providing calculations); Karjala,supra note 47 (demonstrating absence of additional incentive).
FN 49 See, e.g., Donald Braman & Dan Kahan, More Statistics, Less Persuasion: A CulturalTheory of Gun-Risk Perceptions, Yale Law School Public Law & Legal Theory Working PaperSeries, Working Paper No. 5, at available at 5 - 8 <http://papers.ssrn.com/abstract=286205>(visited Dec. 28, 2001) (also on file with author) (asserting that persons' risk aversion does notfollow purely rational lines but is largely explainable by their cultural orientation); Timor Kuran& Cass R. Sunstein, Availability Cascades and Risk Regulation, 51 Stanford L. Rev. 683 (1998)(discussing cognitive failures common in assessing probabilities); Paul H. Rubin, How HumansMake Political Decisions, 41 Jurimetrics J. 337 (2001) (same).
FN 50 See Michael Madow, Private Ownership of Public Image: Popular Culture andPublicity Rights, 81 Cal. L. Rev. 125, 216-18 (1993).
FN 51 See Brown, supra note 37; Karjala, supra note 47, at 6-7.
FN 52 In the United States copyright holders are generally allowed to stop all distribution of awork. See Brown, supra note 37. To defuse the (to me transparently unconvincing) argumentthat copyright holders would allow most uses if paid, we might be able to estimate the number ofworks where locating the copyright holder would be quite difficult or impossible. Copyrightholders might decide that maximum revenue would be produced by creating temporally limitedavailability. Disney, for example, is heavily advertising that DVD's of its popular filmsPinochio; Mujlan, Tarzan, and Snow White and the Seven Dwarfs will be unavailable afterJanuary 31, 2002. <http://disney.go/com/disneyvideos/ofers/time.html> (visited Jan. 8, 2002). Snow White is allegedly disappearing into the vault for ten years. TV commercials aired onDeKalb, Il. AT&T Cable Network on Jan. 8, 2002 (viewed by Malla Pollack).
FN 53 See also Karjala, supra note 47, at 21-22 (arguing that businesses' willingness to takerisks is not related to income available from unrelated projects).
FN 54 See Brown, supra note 37.
FN 55 Two major restorers of old films argued against the CTEA, partly because they haddifficult in locating copyright holders in order to obtain permission to restore old works. SeeAppellant's Reply Brief in Eldred v. Reno, reprinted in 18 Cardozo Arts & Ent. L. J. 657, 666(2000).
FN 56 I am not arguing that more court power is necessarily good. I am merely reacting to thefacts that (a) Congress has abjectly failed to protect the public domain, and (b) public choicetheory suggests we should expect a continuing institutional bias towards congressional over-protection of intellectual property. See, e.g., Mark A. Lemley, The Constitutionalization ofTechnology Law, 15 Berkeley Tech. L. J. 529, 531-534 (2000). But see Robert P. Merges, OneHundred Years of Solicitude: Intellectual Property Law, 1900-2000, 88 Cal. L. Rev. 2187, 2234-39 (2000) (arguing that over-protective legislation is usually blocked by competing interestgroups).
FN 57 See Dan L. Burk, The Trouble with Trespass, 4 J. of Small & Emerging Bus. L. 27(2000) (suggesting that nuisance law provides better policy fit than does trespass or property lawfor cases where web-site operators wish to prevent types of access). But see I. Trotter Hardy, TheAncient Doctrine of Trespass to Web Sites, 1996 J. Online L. art. 7<http://www.wm.edu/law/publications/jol/articles.shtml> ( visited Dec. 16, 2001) (arguing thatweb sites should be protected by analogy to property law).
FN 58 'The Congress shall have the power . . . To Promote the Progress of Science and
the useful Arts by securing for limited times to Authors and Inventors the exclusive right to theirrespective writings and discoveries.-- U.S. Const. Art. I, Sec. 8, Cl. 8 ('the Intellectual PropertyClause,-- or 'Progress Clause--). This Clause is the only use of the word 'progress-- in theConstitution. See Charles W. Stearns, Concordance to the Constitution, in Thurston Greene, TheLanguage of the Constitution: A Sourcebook and Guide to the Ideas, Terms, and Vocabulary ofthe United States Constitution 969, 1009 (Greenwood Press 1991). This concordance stopsbefore the Reconstruction Era amendments. See Thurston Greene, Preface, in Thurston Greene,The Language of the Constitution: A Sourcebook and Guide to the Ideas, Terms, and Vocabularyof the United States Constitution xv, xviii (Greenwood Press 1991). The author supplies nosources for explaining the 1789 word 'progress.-- See Thurston Greene, The Language of theConstitution: A Sourcebook and Guide to the Ideas, Terms, and Vocabulary of the United StatesConstitution xi (Greenwood Press 1991) (demonstrating absence of 'progress-- from alphabeticallist of words explained in source book).
FN 59 See Graham v. John Deere Co., 383 U.S. 1, 6 (1966) ('Congress may not authorize theissuance of patents whose effects are to remove existent knowledge from the public domain, or torestrict free access to materials already available.--). But see 17 U.S.C. § 104A (purporting torestore copyright in certain works which had entered the public domain due to the right holders'failure to comply with formalities); Tyler T. Ochoa, Patent and Copyright Term Extension andthe Constitution: A Historical Perspective at 24-25, 32-47, (working paper on file with author)(discussing copyrights and patents which were revived by private laws); Memorandum inSupport of Defendant's Motion to Dismiss for Failure to State a Claim Upon Which Relief CanBe Granted at 22-34, Lawrence Golan v. John Ashcroft, Civil Action No. 01-B-1854 (D.Colorado) <http://con.law.harvard.edu/openlaw/golanvashcroft> (visited Jan. 10, 2002) (arguingthat restoration is constitutional (i) under the Copyright Clause as demonstrated by firstCongress' passage of statute providing copyright to works already printed in the U.S., and (ii)under the Treaty Power as demonstrated by Missouri v. Holland, 252 U.S. 416, 432 (1920)).
FN 60 See Graham, 383 U.S. at 6.
FN 61 See Feist Publications, Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 345 (1991).
FN 62 See, e.g., Fogarty v. Fantasy, Inc., 510 U.S. 517, 526 (1994) (Copyright's core purposeis 'promoting broad public availability of literature, music, and other arts.--); Bonito Boats, Inc.v. Thunder Craft Boats, Inc., 489 U.S. 141, 164 (1989) (clarifying that Court's earlier pre-emption cases 'protect more than the right of the public to contemplate the abstract beauty of anotherwise unprotected intellectual creation _ they assure its efficient reduction to practice andsale in the marketplace.--).
FN 63 See Feist, 499 U.S. at 345 ('[F]acts are not copyrightable.--).
FN 64 Even my earlier articles may be read as making this assumption. Two interestingarticles do analyze the 'Idea of Progress-- as applied to intellectual property. See Michael D.Birnhack, The Idea of Progress in Copyright Law, 1 Buffalo Int. Prop. L.J. 3 (2001) (discussing'the progress of-- as central to the Clause, but assuming without discussion that these words referto 'the Idea of Progress.--); Margaret Chon, Postmodern 'Progress--: Reconsidering theCopyright and Patent Power, 43 DePaul L. Rev. 97 (1993) (same). Most articles merely assertthe relevance of 'The Idea of Progress.-- See, e.g., Karl B. Lutz, Patents and Science: AClarification of the Patent Clause of the U.S. Constitution, 18 Geo. Wash. L. Rev. 50, 54 (1948)(asserting the identity of the three phrases 'To promote the progress of useful arts,-- 'To promotethe progress of technology,-- and 'to accelerate technological progress--); Arthur H. Seidel, TheConstitution and a Standard of Patentability, 48 J. Pat Off. Soc'y 5, 10-11 & n.11 (1966)(looking at 1818 ed. of Samuel Johnson's dictionary which lists both qualitative and physicalmovement definitions of 'progress--; yet assuming without discussion that 'progress-- in theProgress Clause means the advancement of the human knowledge base and, therefore,concluding that 'progress-- merely requires 'some utility-- in each invention).
FN 65 See Voltaire, Candide [look at chapter 1, l.30; ch.6, l.28, & ch. 30, l.88]. See also e.g.,Adam Smith, The Theory of Moral Sentiments 236 (ed. D. D. Raphael & A. L. Macfie, LibertyFund paperback, Indianapolis 1984) ('The idea of that divine Being, whose benevolence andwisdom have, from all eternity, contrived and conducted the immense machine of the universe,so as at all times to produce the greatest possible quantity of happiness ..--).
FN 66 See, e.g., Progress and Its Discontents (eds. Gabriel A. Almond, Marvin Chodorow, &Roy Harvey Pearce, Univ. of Ca. Press 1982) (collecting essays on the Idea of Progress); HenryGeorge, Progress and Poverty _ an inquiry into the cause of industrial depressions and of increaseof want with increase of wealth _ The Remedy 541-43 (1899) (arguing that technologicaladvancement acerbates the problems caused by inequality in wealth, that increasing generalprosperity does not lead to the end of disparities in wealth, that wealth disparities lead to thedecline of civilizations, and suggesting the only solution is to abolish private property in land); Georges Sorel, The Illusions of Progress xlii-xliiii, xlv (trans. John Stanley & Charlotte Stanley1969) (presenting a Marxist account of 'progress-- as a theory supporting the dominance of thebourgeois, a 'charlatan dogma.--).
FN 67 See Robert P. Merges, As Many As Six Impossible Patents Before Breakfast: PropertyRights for Business Concepts and Patent System Reform, 14 Berkeley Tech. L. J. 577, 587 (1999)('Given a constitutional provision rooted in a blind faith in 'progress,' we cannot read inhistorically contingent limitations on patentable subject matter--; failing to cite or discussliterature arguing the contrary position). Edward Walterscheid has recently suggested a differentreading which gives Congress even more power: 'The Congress shall have Power *** Topromote the Progress of Science and useful Arts [including] by securing for limited times toAuthors and Inventors the exclusive Right to their respective Writings and Discoveries.-- EdwardC. Walterscheid, The Nature of the Intellectual Property Clause: A Study in HistoricalPerspective (Part I), 83 J. Patent & Tmk Of. Soc'y 763, 767-68 (2001). But see L Ray Patterson& Stanley W. Lindberg, The Nature of Copyright: A Law of Users' Rights 49 (1991) (assertingthat key value in Progress Clause is promoting learning by the public; second value is preservingthe public domain; benefitting the author is merely instrumental).
FN 68 Compare J. B. Bury, The Idea of Progress 192-94 (Dover Paperback 1955; reprint of1932 first ed.)(claiming that first clear and complete exposition of the idea of progress was L'an2440, an utopian fantasy first published anonymously in 1770 and suppressed in France) withRobert Nisbet, History of the Idea of Progress xi (Transaction paperback ed. 1994; originalpublication 1980) (insisting that the idea of progress goes back to the ancient Greeks andRomans; idea of progress can be traced in a continuous line of works starting with St.Augustine).
FN 69 See Nisbet, supra note 68, at 204 ('By the second half of the nineteenth century, theconcept of progress had become almost as sacred to Americans of all classes as any formalreligious precept.--).
FN 70 See Patent Act of 1790, 1 Stat. 109, § 1 ('term not exceeding fourteen Years--);Copyright Act of 1790, 1 Stat. 124, § 1 (14 year term with additional 14 years to be granted onlyon additional application).
FN 71 17 U.S.C. § 302(a) (copyright term for works by natural authors). The copyright termfor anonymous works, pseudonymous works, and works made for hire is 95 years from the yearof first publication or 120 years from creation, which ever occurs first. 17 U.S.C. § 302(c). Theterm for patents is shorter. See 35 U.S.C. §§ 154(a)(2), 154(b) (utility patents end 20 years fromdate of application with certain exemptions); 35 U.S.C. § 173 (design patents last for 14 yearsfrom the date of grant); 35 U.S.C. § 161 (plant patents have the same term as utility patents).
FN 72 See 17 U.S.C. § 1101. This statute was upheld against constitutional challenge. SeeU.S. v. Moghadam, 175 F.3d 1269 (11th Cir. 1999), cert. denied March 27, 2001, 2000 LEXIS2203.
FN 73 Burrow-Giles Lithographing Co. v. Sarony, 111 U.S. 53, 57-58 (1884)(holding thatphotograph of Oscar Wilde is copyrightable).
FN 74 See Burrow-Giles, 111 U.S. at 57-58 (citing 'Worcester--). Presumably, the Courtrelied upon Worcester's Dictionary. See id. Brief on the Part of the Defendant in Error 3('Author: He to whom anything owes its origin; originator; creator; maker; first cause. _Worcester's Dict.--).
FN 75 See Feist Publications, Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 358-59 (1991)('Originality [in factual compilations] requires only that the author make the selection orarrangement independently . .. and that it display some minimal level of creativity--; display amere 'creative spark--).
FN 76 Diamond v. Chakrabarty, 447 U.S. 303, 309 (1980) quoting S. Rep. 1979, USCCAN at2399. But see Malla Pollack, The Multiple Unconstitutionality of Business Method Patents:Common Sense, Congressional Consideration, and Constitutional History, 28 Rutgers ComputerTech. L. J. 61, at nn. 24- 29 and accompanying text (2002) (pointing out Supreme Court'sdistortion of original language of report).
FN 77 See, e.g., U.S. Pat. No. 6,323,390 for Transgenic Mouse Models for Human BladderCancer available at <http://www.uspto.gov/patft/index/html> (visited Dec. 20, 2001).
FN 78 See State Street Bank & Trust Co. v. Signature Financial Gp., 149 F.3d 1368, 1375-77(Fed. Cir. 1998) (declaring nonexistence of so-called business method exception to patentability).But see John I. Coulter, The Field of the Statutory Useful Arts, Part II, 34 J. of the Pat. OfficeSoc'y 487, 494-99 (1952) (arguing that business methods are not included in the 'useful arts--);Pollack, supra note 71 ,at section V.B (same); John R. Thomas, The Patenting of the LiberalProfessions, 40 Boston Col. L. Rev. 1139, 1169-75 (1999) (same).
FN 79 See 35 U.S.C. § 103(a).
FN 80 The D.C. Circuit, on the contrary, stated that '[t]he introductory language of thecopyright clause does not limit [the Congress's] power.-- Schnapper v. Foley, 667 F.2d 102, 112(D.C. Cir. 1981). This statement was merely dicta in Schnapper which approved copyright in abicentennial movie commissioned by the federal government. The D.C. Circuit, however,recently relied on this language (among other grounds) to uphold the Copyright Term ExtensionAct of 1998. See Eldred v. Ashcroft, 239 F.3d 372, 377 (D.C. Cir. 2001), cert. granted sub nom.Eldred v. Ashcroft (Feb. 19, 2002) (U.S. No. 01-618). But see Eldred, 255 F.3d 849, 854 (D.C.Cir. 2001) (Sentelle, J, dissenting from denial of rehearing en banc).
FN 81 I use these terms to clearly distinguish the rights allowed by the Constitution fromthose Congress has chosen to create by statute (patents and copyrights). See Pollack,Unconstitutional Incontestibility?, supra note 1, at 291 (introducing terminology and explainingits usefulness). The relevant Supreme Court cases are: New York Times Co. v. Tasini, 533 U.S.483, 121 S. Ct. 2381, 2401, 2403 n.20 (2001)(Stevens, J., dissenting); Campbell v. Acuff-RoseMusic, Inc., 510 U.S. 569, 574-76 (1994); Fogarty v. Fantasy, 510 U.S. 517, 526 (1994); FeistPublications, Inc. v. Rural Tel. Svc. Co., 499 U.S. 340, 349, 354 (1991); Bonito Boats, Inc. v.Thunder Craft Boats, Inc., 489 U.S. 141, 146-48, 150, 151, 157, 164-65, 167 (1989); Harper &Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 558, 563, 580, 589 (1985); Sony Corp. v.Universal City Studios, 464 U.S. 417, 429 (1984); Kewanee Oil Co. v. Bicron Crop., 416 U.S.470, 480-81, 484 (1974); Goldstein v. Ca., 412 U.S. 546, 546, 555 (1973); Lee v. Runge, 404U.S. 887, 890-93 (1971); Graham v. John Deere Co., 383 U.S. 1, 5-6, 9, 10 (1966); GreatAtlantic & Pacific Tea Co. v. Supermarket Equip. Corp., 340 U.S. 147, 155 (1951); AutomaticRadio Mfg. v. Hazeltine Research, Inc., 399 U.S. 827, 836-37, 839 (1950) (Douglas, J.,dissenting); Special Equip. Co. v. Coe, 324 U.S. 370, 746-48 (1945) (Douglas, J., dissenting);Fox Film Corp. v. Doyal, 286 U.S. 123, 127-28 (1932); Ware v. Winsor, 62 U.S. (21 How.) 322,327-29, 330 (1858); Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 654, 668 (1834); Shaw v. Cooper,32 U.S. (7 Pet.) 292, 310 (1833); Pennock v. Dialogue, 27 U.S. (2 Pet.) 1, 13, 19, 21 (1829).
FN 82 The Court did void the first federal trademark statute as, inter alia, not limited to'writings-- of 'authors,-- but that statute did not enlarge common law substantive rights. See TheTrade-Mark Cases, 100 U.S. (18 Otto) 82 (1879).
FN 83 J.E.M. Agriculture v. Pioneer Int'l, 122 S. Ct. 593 (2001), ignored this issue, see id. at596 (stating question presented is merely statutory construction), even though the constitutionalissue was raised in the Brief of Amicus Malla Pollack and Other Law Professors. See<http://jurist.law.pitt.edu/amicus/jem_v_pioneer.pdf > (visited Dec. 25, 2001). See also Ashcroft,255 F.3d 849, 854 (D.C. Cir. 2001) ('I do not accept that it is sufficient for Congress to merelyarticulate some hypothetical basis to justify the claimed exercise of an enumeratedpower.--)(Sentelle, J. dissenting from denial of rehearing en banc).
FN 84 Feist, 499 U.S. 340 (1991); Graham, 383 U.S. 1 (1966).
FN 85 Author/writing in Feist; inventor/discovery in Graham.
FN 86 Negative implication was a common eighteenth century method of legal drafting. See,e.g., Federalist Papers at 541 (Modern Library ed. 1937) ('The plan of the convention declaresthat the power of Congress . . . shall extend to certain enumerated cases. This specification ofparticulars evidently excludes all pretension to a general legislative authority.--) (No. 83); id. at196-97 (No. 32, discussing pregnant negatives in relation to the taxing power); id. at 559(danger of including an incomplete list of rights; No. 84); I William Winslow Crosskey, Politicsand the Constitution 486 (1953) ('[T]he enumerating of particular governmental powers in orderto express limitations upon them was a favorite device of the Federal Convention.--)(emphasis inoriginal). Congress, furthermore, only has 'the legislative powers-- which were 'herein granted.-- U.S. Art. I. sec. 1. In contrast, the President has 'the executive power,-- id. Art. II, sec. 1, andthe Supreme Court and lower federal courts have 'the judicial power of the United States,--id. Art. III, sec. 1. See Gary Lawson, Delegation and Original Meaning at text accompanyingnotes 35-37, Delegation and Original Meaning, forthcoming 88 Va. L. Rev. (2002), available as'Boston Univ. School of Law, Working Paper Series, Public Law & Legal Theory, WorkingPaper no. 01-12, at <http://www.bu.edu/law/facutly /papers> and<http://papers.ssrn.com/abstract=288433> (visited Nov. 17, 2001) (making this textual point).
FN 87 See Railway Labor Executives Ass'n v. Gibbons, 455 U.S. 457, 465 (1982). See alsoPaul J. Heald, The Vices of Originality, 1991 Sup. Ct. Rev. 143, 168-75 (arguing that Gibbonsshould prevent Congress from granting copyright in sweat works); Pollack, The Right to Know?,supra note 23, at 57-62 (supporting even stronger reading of Gibbons). But see Jane Ginsburg,'No Sweat?--: Copyright and Other Protection of Works of Information after Feist v. RuralTelephone, 92 Colum. L. Rev. 338, 369-74 (1992) (proposing narrower reading of Gibbons). Seealso Heald & Sherry, supra note 37 (arguing that the Clause contains four limiting principles:the Suspect Grant Principle, the Quid Pro Quo Principle, the Authorship Principle, and the PublicDomain Principle). The Necessary and Proper Clause does not undermine these limits becauseit cannot be used to 'adopt measures which are prohibited by the Constitution-- or 'pass laws forthe accomplishment of objects not intrusted to the government.-- M'Culloch v. Maryland, 17U.S. 316, 423 (1819). But see Eldred v. Ashcroft, 239 F.3d 372, 378 (D.C. Cir. 2001)(CopyrightTerm Extension Act of 1998 would be constitutional under the Necessary and Proper Clauseeven if, arguendo, it was beyond the scope of the Progress Clause), cert. granted (Feb. 19, 2002)(U.S. No. 01-618). The Treaty Power does not allow by pass of the Progress Clause limits. SeeHeald & Sherry, supra note 37, at 1181-1182. The First Amendment also trumps the TreatyPower. See Boos v. Barry, 485 U.S. 312 (1988) (refusing to allow counselor treaty to permitlimit First Amendment rights).
FN 88 Digital Millennium Copyright Act, P.L. 105-304 ; see also Brief of Prof. Julie Cohenet. al. in Universal City Studios v. Remeides (Argument sections II, III) available at<http://jurist.law.pitt.edu/amicus/universal_v_reimerdes_cohen.htm#II> (visited Aug. 4, 2001).But see Universal City Studios v. Corley, 2d Cir. No. 00-9185, Nov. 28, 2001 (aff'g subnom Universal Studios v. Remeides) (denying multiple constitutional challenges on the DMCAas applied to injunction against posting on the Internet hyperlinks to or text of DeCSS decryptionsoftware for decoding DVD movies).
FN 89 See, e.g., Yochai Benkler, Constitutional Bounds of Database Protection: the Role ofJudicial Review in the Creation and Definition of Private Rights in Information, 15 BerkeleyTech. L.J. 535 (2000) (discussing problems with proposed statutes); Pollack, The Right toKnow?, supra note 23, (same).
FN 90 Eldred v. Ashcroft, 239 F.3d 372 (D.C. Cir., 2001), pet. for cert. filed 70 U.S.L.W.3292 (Oct. 11, 2001) (No. 01-618).
FN 91 I have argued that the states should be limited by the Progress Clause. See Pollack,Unconstitutional Incontestibility?, supra note 1, at 300 -26. The Court has said otherwise. SeeKewanee Oil v. Bicron Corp., 416 U.S. 470, 478-79 (1974); Goldstein v. Ca., 412 U.S. 546, 560-61 (1983).
FN 92 Preemption cases routinely invoke the federal statutes as central, if not totallydeterminative. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989);Kewanee Oil Co. v. Bicron Co., 416 U.S. 470 (1974); Sears, Roebuck & Co. v. Stiffel Co., 376U.S. 225 (1964); Compco Corp. v. Day -Brite Lighting Inc., 376 U.S. 234 (1964). The Courtdid void the first federal trademark statute as, inter alia, not limited to 'writings-- of 'authors,--but that statute did not enlarge common law substantive rights. See The Trade-Mark Cases, 100U.S. (10 Otto) 82 (1879).
FN 93 The Court expressly declined to reach the Progress Clause's limitation on trade dressprotection of product configurations covered by expired utility patents. See TrafFix Devices, Inc.v. Marketing Displays, Inc., 121 S. Ct. 1255, 1263 (2001).
FN 94 See Condorcet, Sketch for a Historical Picture of the Progress of the Human Mind 33,38, 42, 73-76, 92-93, 99-106, 117-20, 136-40, 164, 171, 186-88 (trans. June Barraclough, intro.Stuart Hampshire; n.d. Noonday Press, New York); Turgot, On Universal History, in Turgot OnProgress, Sociology and Economics 61, 116-18 (trans. & ed. Ronald L. Meek, Cambridge Univ.Press 1973).
FN 95 See Condorcet, supra note 94, at 76; Turgot, supra note 94, at 117-18; see also JamesBeattie, The Theory of Language, in Dissertations Moral and Critical 231, 318 (FriedrichFrommann Verlag 1970 facsimile of 1783 ed.) ('Of the usefulness of Printing, as the means ofmultiplying books without end, of promoting the improvement of arts and sciences, and ofdiffusing knowledge through all the classes of mankind, I need not enlarge, as the thing is tooobvious to require illustration.--).
FN 96 U.S. Const. Art. 1, sec. 8, cl. 8; 17 U.S.C. § 102(a)('fixed in any tangible medium--).
FN 97 Condorcet, supra note 94, at 173.
FN 98 See id. at 182-84.
FN 99 See Declaration of Independence. Garry Wills reads Jefferson's words as invoking themoral sense philosophy of Francis Hutchinson in which the 'pursuit of happiness-- involved constant attention to what was good for human society. See Garry Wills, Inventing America:Jefferson's Declaration of Independence 250-55 (1978); see also John Adams, Thoughts onGovernment: Applicable to the Present State of the American Colonies, in 4 Charles FrancisAdams, The Works of John Adams, Second President of the United States with A Life of theAuthor 189, 193 (1851) ('[T]he happiness of society is the end of government--; 'the happinessof man, as well as his dignity, consists in virtue.--). But see Gordon S. Wood, Heroics, in TheNew York Review 16-18 (April 2, 1981) (disputing thesis that the Declaration of Independenceinvokes Hutchinson specifically, without disputing the Declaration's foundation in moralsentiment theory). See also Forrest McDonald, Novus Ordo Seclorum 53-55 (1985) (listingseveral different 18th century meaning of 'equal,-- most of which allowed slavery).
FN 100 See Gordon S. Wood, The Creation of the American Republic 1776-1787 at 72, 120,426, 570 (1998 paperback ed.). Many state constitutions mentioned public education. See Pa.Cons. (1776) Sec 44; N. C. Cons. (1776) LXI; Ga. Cons. (1777) Art. LIV; Mass. Cons. (1780),Chap. V, Sec. II; N. H. Cons. (1784). See also Adams, supra note 99 at 199 ('Laws for theliberal education of youth, especially of the lower class of people, are so extremely wise anduseful, that to a humane and generous mind, no expense for this purpose would be thoughtextravagant.--); Noah Webster, An Examination into the Leading Principles of the FederalConstitution, by a Citizen of America, in Pamphlets on the Constitution of the United States,Published During Its Discussion by the People 1787-1788, at 25, 65 (ed. Paul Leicester Ford;1888, Da Capo Press reprint ed. 1968) ('[L]iberty stands on the immovable basis of a generaldistribution of property and diffusion of knowledge.--).
FN 101 See Akil Reed Amar, The Bill of Rights xii (1998) (arguing that Bill of Rightsinvolved 'protection of various intermediate associations _ church, militia, and jury _ designed tocreate an educated and virtuous electorate--).
FN 102 Letter from James Madison to W.T. Berry (Aug. 4, 1822), in James Madison, TheComplete Madison 337 (Saul K. Padover ed. 1953). A 'gentleman from Rhode Island-- wasquoted in the Pennsylvania Gazette for similar sentiments:
Tyrants are the only enemies of literature, and ignorance and slavery go hand in hand. Nothing but the general diffusion of knowledge will ever lead us to adopt or supportproper forms of government- for the weak and absurd constitutions are, like slavery, theoffspring of ignorance. Nor does learning benefit government alone; agriculture, thebasis of our national wealth and manufactories, owe all their modern improvements to it.
Letter from a gentleman of Rhode Island, June 7, 1787, printed in Pennsylvania Gazette, June 20,1787, Accessible Archives Item no. 73991) (emphasis added).
FN 103 See The Federalist Papers (no. 38, James Madison); see also id. (No. 84, AlexanderHamilton) (--For why declare that things shall not be done which there is no power to do? Why,for instance, should it be said that the liberty of the press shall not be restrained, when no poweris given by which restrictions may be imposed?--).
FN 104 Even without this gloss on original language, many scholars have placeddissemination at the center of copyright theory. See, e.g., Patterson & Lindberg, supra note 67. As Eileen Kane has suggested in conversation, dissemination's centrality is also supported by thedisclosure requirement for patents, 35 U.S.C. § 112.
FN 105 See Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism:The Madisonian Framework and Its Legacy 3 (paperback ed. 1994). Furthermore, in the proto-United States '[t]he rich and the poor [were] not so far removed from each other as they [were]in Europe.-- J. Hector St. John De Crevecoeur, Letters from an American Farmer 41(ed SusanManning; Oxford Univ. Press paperback 1997). The Framers were proud of this relative equalityand implied that they intended to preserve it. See Webster, supra note 100, at 59 ('A generaland tolerably equal distribution of landed property is the whole basis of national freedom: ...--.)(emphasis in original); see also 2 Henry Home, Lord Kames, Sketches of the History of Man 326(Georg Olms Verlagsbuchhandlung Hildesheim 1968 facsimile of 2d ed., 1778) ('No causehitherto mentioned hath such influence in depressing patriotism, as inequality of rank and richesin an opulent monarchy.--). See also McDonald, supra note 99, at 87-93 (discussing theideological tie between republicanism and relatively equal property in early period ofrevolution); Gordon S. Wood, The Radicalism of the American Revolution 170-72 (Vintagepaperback ed. 1993) (asserting that white, male residents of North American colonies valued theabsence of extreme property disparities).
FN 106 See Alfred C. Yen, Restoring the Natural Law: Copyright as Labor and Possession,51 Ohio St. L.J. 517, 529 (1990) (relying on Madison's comment in Federalist). But seeinfra notes 158-60 and accompanying text (discounting importance of Federalist squib). Thenatural rights claim can also be supported by the Committee Report which led the ContinentalCongress to suggest the states pass copyright legislation, see infra note 144.
FN 107 Francis Hutchinson seems to have had major influence in colonial North Americaboth through his writings and through influential educator-ministers who followed hisphilosophy, such as John Witherspoon in New Jersey and Francis Allison in Pennsylvania. SeeDavid Fate Norton, Francis Hutchinson in America, in 94 Studies on Voltaire and the EighteenthCentury 1547- 68 (ed. Theodore Besterman 1976) (Transactions of the Fourth InternationalCongress on the Enlightenment, Voltaire Foundation at the Taylor Institution, Oxford); see alsoWills, supra note 99; Wood, supra note 99.
FN 108 John Witherspoon may have been 'the most influential religious and educationalleader in Revolutionary America.-- Thomas Miller, Preface, in John Witherspoon, The SelectedWritings of John Witherspoon vii, vii (1990). Witherspoon was professor and President of theCollege of New Jersey, which became Princeton University. James Madison was one of hisfamous students. Witherspoon was the only clergyman to sign the Declaration of Independence,a member of the Continental Congress, founded the American Presbyterian Church, and stumpedin favor of the 1787 federal Constitution. See id. at vii; Miller, Introduction, in JohnWitherspoon, The Selected Writings of John Witherspoon 1, 27-31 (1990).
FN 109 John Witherspoon taught that 'the public-- has certain rights over every person insociety. Society may demand that each person be useful, and has 'a right to the discovery ofuseful inventions, provided an adequate price be paid to the discoverer.-- John Witherspoon,Lectures on Moral Philosophy, in The Selected Writings of John Witherspoon 152, 228 (ThomasMiller ed. 1990). Garry Wills interprets similarly the following language in Hutchinson. See Wills, supra note 99:
A like right we may justly assert to mankind as a system, and to every society of men,even before civil government, to compel any person who has fallen upon any fortunateinvention, of great necessity or use for the preservation of life or for a great increase ofhuman happiness, to divulge it upon reasonable terms.
2 Francis Hutchinson, A System of Moral Philosophy 109 (1755).
As a man cannot hoard useful ideas, he cannot destroy his own property if it is still usefulto the community.
Francis Hutchinson, A Short Introduction to Moral Philosophy 246-47 (1747).
FN 110 See The Federalist (No. 43, Madison, quoted infra note 158).
FN 111 Using a completely different route, Margaret Chon reaches the same definition for the'post-modern progress-- she wishes Congress to promote with intellectual property grants. SeeChon, supra note 64 at 146 ('The project of the patent and copyright clause must be understoodas access to knowledge, which is a type of property and civil right.--). See also Carol M. Rose,Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age29, 31(Nov. 2001 Working Paper on file with author) (using Roman law categories of respublicae and res divini juris to explain importance of sharing intellectual works).
FN 112 U.S. Const. Preamble.
FN 113 Court made doctrine is imposed on 'We, the people.-- It also tends to oscillate. I,therefore, hesitate to rely on it here. One major change, however, seems both irrevokable andstrongly supports my thesis. The Incorporation of most of the Bill of Rights against the Statesrecognizes that these government units have become large enough to become oppressive. Incorporation gives more power to the people. See Michael J. Perry, The Constitution in theCourts: Law or Politics? 140 (Oxford Univ Press 1994) (asserting that incorporation 'is a fixedfeature of the American constitutional law: indeed, it has become a constitutive feature ofmodern American government. . . It is not surprising, therefore, that today few persons areinterested in challenging the application to the states of those Bill of Rights provisions on whichit has relied in striking down state action.--). But see Raoul Berger, Government by Judiciary: TheTransformation of the Fourteenth Amendment 155-198 (2d ed. 1997) (attacking allegations thatCongress intended to incorporate any of the Bill of Rights against the states when drafting theFourteenth Amendment).
FN 114 Part of this protection is protecting the intermediate protector, the State. Under thisreading, the Eleventh Amendment might be read to support my thesis. It protects the financialviability of States.
FN 115 See, e.g., James A. Henretta, The Evolution of American Society, 1700-1815: AnInterdisciplinary Study 221 (1973; paperback ed. D. C. Heath & Co.) (explaining thatideologically disparate political parties were institutions for enabling larger percentage ofpopulation to have some political power).
FN 116 The original Constitution did not seat new members until the following December. U.S. Const. Art. 1, sec. 4, cl. 2. The interaction of this provision with the date of the nationalelection and Congressional procedures left a long period of lame-duck control. If the ElectoralCollege threw the Presidential or Vice Presidential choice into the Congress, the lame-duckCongress decided on the next executive. See Senate Report 72-26 (1st session) reprinted in 75Cong. Rec. 1372-73 (Senate, Jan. 6, 1932). The latter disagreements between the House and theSenate were on the exact dates various officials took office, not on the underlying desire toenhance government responsiveness to general elections. See 75 Cong. Rec. 5026-27 (House,March 1, 1932, including Conf. Report, H. Rep. 72-633).
FN 117 U.S. Const. Preamble.
FN 118 Functional or structural analysis are variations of these stances. For example, Alden v.Maine, 527 US 706, 712-26 (1999), posits a non-textual limit on federal power based on theratifying generation's alleged assumptions about sovereign entities, i.e. a variation of approaches(b) and (c).
FN 119 See, e.g., McGautha v. Ca., 402 U.S. 183, 202 (1971) (due process limits on juryinstructions 'reflect the evolving standards of decency that mark the progress of a maturingsociety.--) (internal quotation marks and citation omitted); id. at 241 (Douglas, J., dissenting)('the wooden position of the Court, reflected in today's decision, cannot be reconciled with theevolving gloss of civilized standards-- which the Supreme Court has long read into the'procedural due process safeguards of the Bill of Rights.--); Duncan v. La., 391 U.S. 145, 183(1968) (Harlan, J., dissenting) ('[D]ue process is an evolving concept-- requiring 'that oldprinciples [be] subject[ed] to re-evaluation in light of later experience[.]--).
FN 120 As usual, some exceptions exist. Hopefully, the history of the Statute of Anne shouldlead us to refuse to use copyright to empower censorship; a choice also compelled by the modernview of the First Amendment's speech and press clauses. The history of the Statute ofMonopolies counsels us to refuse to allow government use of copyright or patent for indirectfunding of government functions. See Malla Pollack, Purveyance and Power, supra note 37 at116-140 (making this argument while admitting that the courts have not taken this position).
FN 121 '[N]othing is more properly a man's own than the fruit of his study-- according to a1783 report joined by James Madison. 24 Journals of the Continental Congress 326 (Friday, May2, 1783), available at <http://memory.loc.gov/ammem/amlaw/lawhome.html> (visited Aug. 4,2001). Thomas Jefferson, however, wrote:
If nature has made any one thing less susceptible than all others of exclusive property, itis the action of the thinking power called an idea .... Its peculiar character, too, is that noone possesses the less, because every other possesses the whole of it. He who receives anidea from me, receives instruction himself without lessening mine; as he who lights his
taper at mine, receives light without darkening me .... Inventions then cannot, in nature,be a subject of property. Society may give an exclusive right to the profits arising fromthem, as an encouragement to men to pursue ideas, which may produce utility.
Letter to Isaac McPherson, Aug. 1813, VI Writings of Thomas Jefferson, at 180- 81 (Washingtoned.) (cited in Graham v. John Deere Co., 383 U.S. 1, 8-9 n.2 (1966)).
FN 122 See Alden, 527 U.S. at 734.
FN 123 See 17 U.S.C. § 102(a).
FN 124 See, e.g. John Milton, Paradise Lost, in John Milton, The Poetical Works of JohnMilton 1, 287 (ed. Helen Darbishire, Oxford Univ. Press 1961 reprint of 1958 ed.) (Book VIII, l.317; 'Author of all this thou seest.--). Milton describes Satan as 'author-- of his children, Sin andDeath, and as 'author and prime architect-- of the bridge Sin and Death build between hell andearth. Id. at 219, 222 (Book X, ll. 236, 356). See also Jonathan Boucher, A View of the Causesand Consequences of the American Revolution; in Thirteen Disourses, Preached in NorthAmerica Between the Years 1763 and 1755; with an Historical Preface 485 (Russell & Russell1967 ed. reproduced from original ed. of 1797) (referring to Satan as the 'first author andfounder of rebellion.--); Thomas Burnet, The Sacred Theory of the Earth 26 (Centaur Press 1965reprint of 2d ed. 1691) (referring to God as the 'author-- of both human 'Reason-- and the 'Sacredwritings.--) . But see E.C. Walterscheid, The Nature of the Intellectual Property Clause: A Studyin Historical Perspective ? (forthcoming Spring 2002) (arguing that 'writings-- in Clause bearsnarrow meaning because it invokes narrower of meanings for 'author-- in Samuel Johnson's 1755dictionary, 'the first writer of anything; a writer in general--) (short draft on file with author).
FN 125 See, e.g., Francis Bacon, The Advancement of Learning 9 (ed. intro. Michael Kiernan;Oxford Univ. Press 2000) ('[L]et no man . . . maintaine, that a man can search too farre, or beetoo well studied in the Booke of Gods word, or in the Booke of Gods workes.--).
FN 126 But see Leonard W. Levy, Original Intent and the Framers' Constitution 179 (1988)(asserting that Framers were not careful draftsmen).
FN 127 See John Witherspoon, Lectures on Eloquence, in Selected Writings of JohnWitherspoon 123, 245, 272, 291 (Thomas Miller ed. 1990) (insisting on brevity and clarity). 'The first rule for promoting the strength of a sentence is, to prune it of all redundant words andmembers.-- Lindley Murray, English Grammar 200 (Scolar Press Ltd. facsimile of 1795 ed.)(emphasis in original); see also id. at 191 ('All unmeaning words, introduced merely to round theperiod, or fill up the melody, are great blemishes in writing. They are childish and puerileornaments, but which a sentence always loses more in point of weight, than it can gain by suchadditions to its sound.--). Murray's grammar was 'without doubt the most popular and frequentlyreprinted grammar of English during the nineteenth century-- and very popular in the UnitedStates. Id. at n.p. (editor's note before facsimile of original title page).
FN 128 See, e.g, TRW, Inc. v. Andrews, 122 S. Ct. 441, 449 (2001) ('It is a cardinal principleof statutory construction that a statute ought, upon the whole, to be so construed, that, if it can beprevented, no clause, sentence, or word shall be superfluous, void, or insignificant.--)(internalquotation marks and citation omitted); Platt v. Union Pacific RR, 99 U.S. (9 Otto) 48, 58 (1878)('[A] legislature is assumed to have used no superfluous words.--). But see Chickasaw Nation v.U.S., (U.S. No. 00-507 Nov. 27, 2001), slip. op. at 4 (admitting that Court's interpretation ofstatute renders some words mere surplusage, but asserting that 'no other reasonable reading ofthe statute-- is possible).
FN 129 See Bd. of Trustees v. Garrett, 531 U.S. 356, 363 (2000) (admitting that Court's caselaw oversteps the language of the Eleventh Amendment); Maryland v. Craig, 497 U.S. 836, 870(1990)(Scalia, J. dissenting) (asserting that majority opinion 'gives the defendant virtuallyeverything the Confrontation Clause guarantees (everything, that is, except confrontation).--).
FN 130 See Hans v. La., 134 U.S. 1, 15 (1890)(refusing to follow literal reading of theEleventh Amendment because allowing a citizen to sue his own state in federal court is 'aconstruction never imagined or dreamed of-- when the Eleventh Amendment was adopted orwhen Constitution was established) cited Garrett, 531 U.S. at 363; Craig, 497 U.S. at845(discussing 'central concern of the Confrontation Clause-- in light of historical practices itrejected.).
FN 131 But see Birnhack, supra note 64at 16-17 (arguing that 'copyright law is bestunderstood in terms of intellectual progress, while patent law is best understood in terms ofmaterial progress.--).
FN 132 See Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 Univ. ofChicago L. Rev. 101, 144-45 (2001).
FN 133 See Noah Webster, American Dictionary of the English Language at unnumberedpage headed 'ARR - ARS - ART-- (1828; facsimile reprint Foundation for American ChristianEducation 10th ed. 1998) (stating within second definition of 'art-- that '[a]rts are divided intouseful or mechanic and liberal or polite.--). See also Coulter, supra note 78 at 494-99 (1952);Pollack, supra note 76, at 86-119; Thomas, supra note 78, at 1169-75.
FN 134 See Webster, supra note 133, at unnumbered page headed SCI-SCI-SLA ('SCIENCE,n. ... (1) In a general sense .. knowledge... (2) In philosophy, a collection of the general principlesor leading truths relating to any subject. . . . (3) Art derived from precepts or built on principles. .. (4) Any art or species of knowledge. . . . (5) One of the seven liberal branches of knowledge,viz. grammar, logic, rhetoric, arithmetic, geometry, astronomy and music.--).
FN 135 21 James I ch. 3
FN 136 See, e.g., Graham v. John Deere Co., 383 U.S. 1, 5 (1966).
FN 137 See Charles Howard McIlwain, Constitutionalism Ancient and Modern 138(1940)(characterizing Statute as first win by Parliament in its fight against absolute monarchy). But see Chris R. Kyle, 'But a New Button to an Old Coat': The Enactment of the Statute ofMonopolies, 21 James I cap. 3, 19 J. of Legal Hist. 203 (1998)(arguing that Statute was enactedwith James I's cooperation).
FN 138 'Monopoly-- in the 1624 statute is a vague pejorative term. See Pollack, Purveyanceand Power, supra note 40, at 40 & n.221.
FN 139 21 James I ch. 3 §§ V (existing grants), VI (future grants).
FN 140 21 James I ch. 3 § I ('upon Misinformations, and untrue Pretences of publick Good--persons have obtained illegal grants 'to the great Grievance and Inconvenience of your Majesty'sSubjects.--).
FN 141 8 Anne ch. 19 (1710).
FN 142 See, e.g., Paul Goldstein, Copyright § 1.13.1 at 1:27 (2d ed. 2000).
FN 143 8 Anne ch. 19 (1710).
On the report of a committee, consisting of Mr. [Hugh] Williamson, Mr. [Ralph] Izardand Mr. [James] Madison, to whom were referred sundry papers and memorials on thesubject of literary property:
The committee, consisting of Mr. [Hugh] Williamson, Mr. [Ralph] Izard and Mr. [James]Madison, to whom were referred sundry papers and memorials from different persons onthe subject of literary property, being persuaded that nothing is more properly a man'sown than the fruit of his study, and that the protection and security of literary propertywould greatly tend to encourage genius, to promote useful discoveries and to the generalextension of arts and commerce, beg leave to submit the following report:
Resolved, That it be recommended to the several states, to secure to the authors orpublishers of any new books not hitherto printed, being citizens of the United States, andto their heir or assigns executors, administrators and assigns, the copyright of
such books for a certain time, not less than fourteen years from the first publication; andto secure to the said authors, if they shall survive the term first mentioned, and to theirheirs or assigns executors, administrators and assigns, the copyright of such books foranother term of time not less than fourteen years, such copy or exclusive right of printing,publishing and vending the same, to be secured to the original authors, or publishers, ortheir assigns their executors, administrators and assigns, by such laws and underrestrictions as to the several states may seem proper.
24 Journals of the Continental Congress 326-27 (Friday, May 2, 1783), available at <http://memory.loc.gov/ammem/amlaw/lawhome.html> (visited Aug. 4, 2001). For full text ofall copyright statutes passed by the states during the Articles of Confederation period, seeCopyright Office, Library of Congress, Copyright Enactments: Laws Passed in the United StatesSince 1783 Relating to Copyright: Copyright Office Bulletin No. 3 (revised) 1-21 (1963); seealso id. at 140 (text of 1672 enactment of the Massachusetts Bay Colony forbidding any printerfrom printing more copies of any book than agreed to by the 'outer of the said coppie orcoppies.--).
FN 145 An Act for the Purpose of Securing to Authors the Exclusive Right and Benefit ofPublishing Their Literary Productions, for Twenty-One Years (enacted March 17, 1783) inCopyright Office Bulletin No. 3, supra note 144, at 4-5. The New Hampshire statute of Nov. 7,1783 opens with almost identical language:
As the improvement of knowledge, the progress of civilization, and the advancement ofhuman happiness, greatly depend on the efforts of ingenious persons in the various artsand sciences ...
An Act for the Encouragement of Literature and Genius, and for securing to authors theexclusive right and benefit of publishing their literary productions, for twenty years, in CopyrightOffice Bulletin No. 3, supra note 144, at 8. The Rhode Island statute enacted in the Decembersession of 1783 opens:
Whereas the improvement of knowledge, the progress of civilization, the public weal ofthe community, and the advancement of human happiness, greatly depend on the effortsof learned and ingenious persons, in the various arts and sciences ...--
An Act for the Purpose of securing to authors the exclusive right and benefit of publishing theirliterary productions for twenty-one years, in Copyright Office Bulletin No. 3, supra note 144, at9.
FN 146 Settling a new continent necessarily involved discovering new knowledge. 'Perhapsnever before in a civilized country had physical and intellectual expansion been so clearlysynonymous-- as in colonial North America. Daniel J. Boorstein, The Americans: The ColonialExperience 159 (1958; Vintage Paperback ed).
FN 147 Mass. Const. 1780, Ch. 5, sec. 2, reprinted in 3 The Founders' Constitution 39 (PhilipB. Kurland & Ralph Lerner eds., 1987), also reprinted in 5 Sources and Documents of UnitedStates Constitutions 92, 106 (ed. & annotated William F. Swindler 1975). The 1780Massachusetts Constitution is based on a draft composed by John Adams. See Louis AdamsFrothingham, A Brief History of the Constitution and Government of Massachusetts with aChapter on Legislative Procedure 25-27 (1916). This subsection appears to have been draftedcompletely by John Adams and enacted as suggested without negative comment. See 4 CharlesFrancis Adams, The Works of John Adams, Second President of the United States with A Life ofthe Author 259 n.1 at 261 (1851) ('I was somewhat apprehensive that criticism and objectionswould be made to the section, and particularly that the 'natural history' and the 'good humor'would be stricken out; but the whole was received very kindly, and passed the conventionunanimously, without amendment.--) (allegedly quoting an 1809 statement by John Adams).
FN 148 Encouragement of Literature etc
Knowledge and learning, generally diffused through a community, being essentialto the preservation of a free government; and spreading the opportunities and advantagesof education through the various parts of the country, being highly conductive to promotethis end; it shall be the duty of this government to cherish the interest of literature and thesciences, and all seminaries and public schools, to encourage the promotion ofagriculture, arts, sciences, commerce, trades, manufactures and natural history of thecountry .....
New Hampshire Constitution of 1784, reprinted in Swinder, supra note 147, at 342, 355. WhenNew Hampshire passed its first copyright statute, it was governed by the Constitution of 1776_ avery brief document passed by the colonial legislature after the 'sudden and abrupt departure-- ofthe royal governor and many of his council. 6 Swindler, supra note 147, at 342. A new stateconstitution was drafted in 1779 and presented to the voters, but it was rejected at the polls. Thesuggested 1779 New Hampshire Constitution did not contain any mention of knowledge orlearning. See 11 Town Papers xxx, 741-45 (ed. Issac W. Hammond 1882).
FN 149 Rhode Island remained governed by the royal charter creating the colony until 1842. See 8 Swinder, supra note 147, at 340 (editorial note); id. at 363 (reprinting Charter of RhodeIsland and Providence Plantations issued 1663 by Charles II of England). The 1842 Rhode IslandConstitution recites diffusion of knowledge as the basis for requiring public schools. R.I. Const.Article XII sec. 1 reprinted in 8 Swinder, supra note 141, at 386, 395 ('The diffusion ofknowledge, as well as of virtue, among the people being essential to the preservation of theirrights and liberties, it shall be the duty of the general assembly to promote public schools, and toadopt all means which they may deem necessary and proper to secure to the people theadvantages and opportunities of education.--).
FN 150 Connecticut and New York mention 'service to mankind.-- Copyright Office BulletinNo. 3, supra note 144, at 1, 19. Massachusetts refers to the 'benefit of mankind.-- Id. at 4. NewJersey invokes the 'general good of mankind.-- Id. at 6.
FN 151 Connecticut, South Carolina, North Carolina, Georgia, and New York. See id. at 2-3, 13, 16, 18, 20. Massachusetts required two copies be given free to the library of the Universityof Cambridge. See id. at 4-5.
FN 152 James Madison, Notes on Debates in the Federal Convention of 1787, at 480 (entry forAugust 18, 1787) (1966) (Madison's suggestion).
FN 153 Id. (Madison's suggestion).
FN 154 Id. (Pinkney's suggestion).
FN 155 Id. (Pinkney's suggestion). Pinkney also suggested 'To establish seminaries for thepromotion of literature and the arts & sciences-- and 'To establish public institutions, rewardsand immunities for the promotion of agriculture, trades, and manufactures.-- Id.
FN 156 Id. at 580-81.
FN 157 See Pollack, supra note 40, at 99-116 (discussing mentions of the Progress Clauseduring the ratification process); Walterscheid, supra note 67, at 773-74 (same).
THE FOURTH class comprises the following miscellaneous powers:1. A power ``topromote the progress of science and useful arts, by securing, for a limited time, to authorsand inventors, the exclusive right to their respective writings and discoveries.-- 'Theutility of this power will scarcely be questioned. The copyright of authors has beensolemnly adjudged, in Great Britain, to be a right of common law. The right to usefulinventions seems with equal reason to belong to the inventors. The public good fullycoincides in both cases with the claims of individuals. The States cannot separately makeeffectual provisions for either of the cases, and most of them have anticipated thedecision of this point, by laws passed at the instance of Congress.
The Federalist Papers 279 (Modern Library 1937 ed.) (No. 43, Madison), available at< http://lcweb2.loc.gov/const/mdbquery.html > (visited Aug. 4, 2001).
FN 159 Madison implied that inventors had common law rights in their inventions, but theeighteenth century crown had no obligation to issue any specific patent of invention. See, e.g.,Edward Armitage, Two Hundred Years of English Patent Law, in 200 Years of English andAmerican Patent, Trademark, and Copyright Law 3, 4 (1976). During the reign of Elizabeth I,patents were refused for Lee's stocking frame and Harrington's water closet. See E. WyndhamHulme, The History of the Patent System Under the Prerogative and at Common Law. A Sequel.,16 L.Q. Rev. 44, 53 (1900). On copyright, English law had recently changed, perhaps withoutMadison's knowledge. See John F. Whicher, The Ghost of Donaldson v. Beckett: An Inquiryinto the Constitutional Distribution of Powers over the Law of Literary Property in the UnitedStates, _ Part I, 9 Bull. Copyright Soc'y U.S.A. 102, 133 (1961) (asserting that Madison wasprobably relying on an outdated version of Blackstone).
FN 160 See Andrew J. Reck, Moral Philosophy and the Framing of the Constitution,reprinted in Liberty, Property, and the Foundation of the American Constitution 23, 36 (EllenFrankel Paul and Howard Dickman eds. 1989) (authors of the Federalist Papers were'preoccupied with the immediate task of elucidating and defending the provisions of theConstitution against the arguments of the Antifederalists.--).
FN 161 Some interpreters claim special authority for constitutional readings endorsed by thefirst Congress. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 980 (1991) ('The actions of theFirst Congress, which are of course persuasive evidence of what the Constitution means . . . .--)(Scalia, J, announcing decision of the Court in section of op. joined only by Rehnquist, C.J.)(citation string omitted). But see id.. at 1014 (Kennedy, J., dissenting, joined by O'Connor, J. &Souter, J.) ('[T]he Court's jurisprudence concerning the scope of the prohibition against crueland unusual punishments has long understood the limitations of a purely historical analysis.--)(citation string omitted). Leaving aside the weight of such evidence, I have not discovered anyearly congressional discussion on this specific point, let alone any group-endorsed action. Atmost, we have records demonstrating a reluctance to read the Progress Clause broadly. Whenone would-be explorer requested funding for an expedition to Baffin's Bay, Mr. Tucker'expressed a doubt whether the Legislature has power by the Constitution to go further inawarding the inventors of useful machines, or discoveries in sciences, than merely to secure tothem for a time the right of making, publishing and vending them.-- 1 Annals of Congress 180(April 20, 1789) <http://memory.loc.gov> (visited May 3, 2001); see also IV DocumentaryHistory of the First Federal Congress of the United States of America, Legislative Histories at530-53 (L. G. DePauw et. al. eds. 1977) (Comm. Rept. stating that the request 'involves anenquiry into the Constitutional powers of Congress--). Some persons were concerned that'inventor-- and 'discovery-- might not include importers of new technology, even thou suchpersons were allowed utility patents in Great Britain. See Pollack, supra note 76, at notes 71-78& accompanying text.
FN 162 But see Heath W. Hoglund, Patent Fee Diversion Crosses Constitutional Boundary,83 J. Pat. & Tmk. Soc'y 725, 725 (2001)(arguing that 'Congress' power must be exercised in away that promotes science and technological inventions,-- without noticing omission of'progress-- from the constitutional command).
FN 163 See Bacon, supra note 125. But see Samuel Johnson, The Plan of a Dictionary 2(Scalar Press Ltd. 1970 facsimile of 1747 ed.) (Desiring his dictionary 'to promote theimprovement of [his] native tongue.--); Jonathan Swift, The Bickerstaff Papers, in JonathanSwift, Gulliver's Travels and Other Writings 454, 467 (ed. and intro. Miriam Kosh Starkman,Bantam paperback 1962) ('But it seems this gentleman, instead of encouraging the progress ofhis own art, is pleased to ...--).
FN 164 See, e.g., 2 Bernard Mandeville, The Fable of the Bees: or, Private Vices, PublickBenefits 43 (Clarendon Press, Oxford, Eng. 1924) ('I am convinced that the Money of most rich men is laid out with the social Design of promoting Arts and Sciences ...--); id. at 366 ('[O]urpride, sloth, sensuality and fickleness are the great patrons that promote all Arts and Sciences...--).
FN 165 See Announcements concerning the Pennsylvania Society for Encouragement ofManufacture and the Useful Arts, 2 The American Museum, or Repository of Ancient andModern Fugitive Pieces at 167.
FN 166 24 Journals of the Continental Congress 326-27 (Friday, May 2, 1783), available at <http://memory.loc.gov/ammem/amlaw/lawhome.html> (visited Aug. 4, 2001) (quoted in fullsupra note 138).
FN 167 See also Milton, Paradise Regained, in John Milton, The Poetical Works of JohnMilton 283, 290 (ed. Helen Darbishire, Oxford Univ. Press 1961 reprint of 1958 ed.) (Book I, ll.204-06, self-description by Jesus, 'my self I thought/Born to that end, born to promote all truth,/All righteous things: ...--).
FN 168 For example, Congress grants music composers more leverage over publicperformances than it grants to recorded vocalists. See 17 U.S. C. § 106(5), (6). See supra note42 and accompanying text (discussing this circularity in reference to the CTEA); see also Cohen,Copyright and the Perfect Curve, supra note 17, at 1800 (arguing that 'the assumption that'progress' is qualitatively independent of the underlying entitlement structure is wrong--;protection choices influence types of works created.). I would object to the economic reading onseveral other grounds. I do not accept Kaldor-Hicks optimality as a suitable social goal. I doubtthat either most Framers or their generation would have adopted Kaldor-Hicks. The federalgovernment, for example, would have been much less expensive to run with an unicamerallegislature. However, one version of 'progress-- theory is held by economic rationalists whoconflate social improvement with increase in material prosperity and generally assume that suchmaterial progress requires a modern, liberal market. See David A. Westbrook, Law Through War,48 Buffalo L. Rev. 299, 311-313 (2000).
FN 169 See infra Section V.B.
FN 170 'Clearness is secured by using the words (nouns and verbs alike) that are current andordinary.-- Aristotle, Rhetoric, in Rhetoric and Poetics 1, 167 (Bekker 1405; Book III, Chapter1)(Modern Library ed. 1954). See also Witherspoon, supra note 127, at 245, 272, 291 (insistingon clarity as well as brevity); Murray, supra, note 127, at 188 ('Hardly in the language are theretwo words that convey precisely the same idea;-- 'to be full and easy, and at the same time correctand exact in the choice of every word, is no doubt one of the highest and most difficultattainments in writing.--); id. at 191 ('Whatever leaves the mind in any sort of suspense as to themeaning, ought to be avoided with great care.--).
FN 171 Thomas Reid, a member of the Scottish Enlightenment with strong influence oncolonial North America, uses 'improvement-- for Idea of Progress quality increase. See ThomasRead, Inquiry and Essays 31 (chp. 4, sec. 2) (eds. Keith Lehrer & Ronald E. Beanblossom Bobbs-Merrill paperback ed.) (showing use of 'improvement--; '[o]ne of the noblest purposes of soundundoubtedly is language, without which mankind would hardly be able to attain any degree ofimprovement above the brutes.--); id. at 32 ( 'But the origin of language deserves to be morecarefully enquired into, not only as this inquiry may be of importance for the improvement oflanguage, but as is related to the present subject, and tends to lay open some of the first principlesof human nature.--); id. at 33 ('These artificial signs [words with merely conventionaldenotations] must multiply with the arts of life, and the Improvements of knowledge.--); See Wills, supra note 99, at 181-89 (discussing importance of Reid's philosophy, especially itsreliance on common sense).
FN 172 Defoe's Robinson Crusoe repeatedly uses forms of 'perfection' and 'improvement' inthis way. See Daniel Defoe, The Life and Strange Adventures of Robinson Crusoe, of York,Mariner 123, 145 (several examples), 154 (Oxford World Classics 1999). Defoe wrote in carefulimitation of the language the characters would actually have used. See J. M. Coetzee,Introduction, in id. v, vii. Robinson Crusoe appeared in 1719 and sold very well. See id. at v. Crusoe was a man of 'the upper station of Low Life,-- that is a person of the 'middle state.-- Hehad a 'house education-- and what ever further instruction was available at a 'country free-school.-- Defoe, supra, at 5-6. Jonathan Swift has multiple such uses of variations on'perfection' and 'improvement.' See Jonathan Swift, Gulliver's Travels, in Gulliver's Travelsand Other Writings 31, 43, 110, 134, 137, 168, 179, 181, 184, 262, 272 (ed and introducedMiriam Kosh Starkman, Bantam paperback 1962); Swift, Tale of A Tub, in supra, 278 at 278,282, 331.
FN 173 See Swift, The Bickerstaff Papers, supra note 163, at 466.
FN 174 'Advancement-- is not an acceptable definition because (i) the Framers chose not touse it, despite this suggestion by Pinkney, and (ii) it has the same clarity problems as 'progress.-- See infra note 198 (discussing definition). The Framers might, of course, have chosen 'progress--or 'advancement-- because they allowed multiple interpretations. Distinguish, however, between(1) a word with several distinct meanings, but which is properly read in only one sense in anyspecific placement, and (2) a word which refers to an elastic concept, such as 'reasonable.-- TheConstitution abounds in type 2 words, but not in type 1 words. Based on the linguistic evidencediscussed below, see supra Section V, I think that in the eighteenth century, 'progress-- was atype 1 word.
FN 175 See supra note 134 (quoting Webster's definition). Johnson defines 'science-- as '1.Knowledge . . . 2. Certainty grounded on demonstration . . . 3. Art attained by precepts, or builton principles . . . 4. Any art or species of knowledge . . . 5. One of the seven liberal arts,grammar, rhetorick, logick, artithmetick, musick, geometry, astronomy.-- 2 Samuel Johnson, ADictionary of the English Language 1715 (Librairie Du Liban, 1978 facsimile of 1773 ed). Political economy is a branch of the science of the statesman or legislature. See Adam Smith,The Wealth of Nations 397 (Modern Library ed. n.d.). See also id. at 724-26 (discussing moralphilosophy, logic, the nature of G-d, the nature of the human mind, metaphysics, physics, andontology as sciences). Francis Bacon divided science into three branches, 'Astrology, NaturalMagicke, and Alcumy.-- Bacon, supra note 125, at 27. Bacon also names as 'sciences-- logic,rhetoric, history, natural history, medicine, metaphysics, mathematics, perspective, astronomy,architecture, engineering, morality, law, divinity, grammar, rhetoric, poetical meter, government,conversation, negotiation, and religion. See id. at 59, 85, 88, 110, 121, 158, 182. Humorexpanded the definition of 'science-- even further. See Peter Oliver, Origin & Progress of theAmerican Rebellion (eds. Douglass Adair & John A. Schutz Stanford Univ. paperback 1967)(referring to Benjamin Franklin as an 'Adept in the Science of Perfidy--). 'Progress-- in the booktitle merely indicates a history.
FN 176 See Miller, supra note 108, at 18. See also 2 James Beattie, Elements of MoralScience 10, 21 (Garland Pub. 1977 facsimile of 1790-93 ed) (asserting that man's two ends areaction and knowledge, of which action is primary, and that conscience is man's supreme facultyto whose decisions all other human faculties should defer); James Beattie, An Essay on theNature and Immutability of Truth in Opposition to Sophistry and Scoepticism 4-5, 14-15, 21(Routledeg/Thomemmes Press 1996 facsimile of 1771 ed) (listing 'moral philosophy-- as ascience, identifying 'moral philosophy-- with the 'science of human nature,-- and declaring thatthe latter is 'commonly acknowledged-- to be the 'most important--); Shaftesbury, Characteristicsof Men, Manners, Opinions, Times 133, 152 (ed. Lawrence E. Klein Cambridge Univ. Press1999) (referring to study of human behavior and morals as sciences); id. at 360 (referring toreligion as a science); Witherspoon, supra note 109, at 152, 154 (asserting that students shouldstart their study with the 'nature of man--; 'moral philosophy is that branch of science whichtreats of the principles and laws of duty or morals.--).
FN 177 But see, e.g., Jacques-Benigne Bossuet, Discourse on Universal History 114 (trans.Elborg Forester; ed. & with intro. Orest Ranum; Univ. of Chicago Press 1976) (doctrines ofreligion have existed 'without interruption and without alteration-- since 'beginning of theworld--). Bossuet was the Catholic chaplain at the court of Louis XIV of France and tutored theroyal heir. See Orest Ranum, Editor's Introduction, in Bossuet, supra, xiii at xiv, xxx.
FN 178 See, e.g., Bossuet, supra note 177, at 70 (Latin poetry was at the point of 'supremeperfection-- at the time of Virgil and Horace). See also Beattie, supra note 176 [Truth], at 499(That the ancient painters and statuaries were superior to the modern is universally allowed.--); 2Hugh Blair, Lectures on Rhetoric and Belles Letters 218-19 (Garland Publishing, New York,1970 facsimile of 1785, 2d corrected ed. printed for W. Strahan; T. Cadell, in the Strand; and W.Creech, in Edinburgh) (ancients surpassed moderns in eloquence of rhetoric); Turgot, supra note94, at 61, 103 (In the 'arts of taste, to painting, poetry, and music,-- we have become moreknowledgeable about these arts 'without having surpassed or even attained in the arts of designthat sublime beauty of which Greece (over a very short period) provided the models.--). But see 1Home, supra note 105, at 281 ('In a word, Homer was a blazing star, and the more to beadmired, because he blazed in an obscure age. But that he should in no degree be tainted withthe imperfections of such an age, is a wild thought: it is scarce possible, but by supposing him tobe more than man.--). See generally 3 Blair, supra, at 1-18 (discussing ancient/moderncontroversy and concluding that in studies involving facts, the moderns are more correct, while inareas involving taste and sentiment, the ancients are largely unmatched).
FN 179 See Beattie, supra note 176, at 331 ('If a man can reconcile himself to atheism, whichis the greatest of all absurdities, I fear I shall hardly put him out of conceit with his doctrine,which I show him, that other less enormous absurdities are implied in it.--); see also Roger J.Robinson, Introduction, in id., v, vii-ix (describing commonness and depth of such fear).
FN 180 See, e.g., Cohen, Copyright and the Perfect Curve, supra note 16, at 1800(recognizing general 'agnosticism about prospects for value-neutrality-- in the legal system'streatment of copyrightable subject matter). But see Riley M Sinder, John K. Lopker, & RonaldA. Heifetz, Promoting Progress: The Supreme Court's Duty of Care, 23 Ohio Northern Univ. L.Rev. 71, 78, 92-94 (1996)(asserting that Supreme Court is value neutral when deciding patentcases and arguing that Court should act similarly in civil rights cases by not imposing specificsolutions).
FN 181 See, e.g., Gerald Weissman, Nullius in Verba, in They All Laughed at ChristopherColumbus, 109, 118-19 (1987)(pointing out that microbes seen under Hooke's microscope in1660s were not linked to disease for about 200 years; 'They remained playthings for amateurcuriosity,-- unlike astronomy whose tie to useful navigation was recognized immediately).
FN 182 Bleistein v. Donadlson Lithographing Co., 188 U.S. 239, 251 (1903).
FN 183 See U.S. RR. Retirement Bd. v. Fritz, 449 U.S. 166, 184 (Brennan, J., dissenting)('The enactments of Congress are entitled to a presumption of constitutionality ....--); Norman J.Singer, Statutes and Statutory Construction § 45:11 (6th ed. 2000).
FN 184 See Merges, supra note 67.
FN 185 See supra note 81 (listing cases).
FN 186 See Samuel A. Thumma & Jeffrey Kirchmeier, The Lexicon Remains a Fortress: AnUpdate, 5 Green Bag 2d 51, 51-52 (2001).
FN 187 See Jaffree v. Smith, 472 U.S. 38, 106 (1985) (Rehnquist, J., dissenting).
FN 188 See INS v. St. Cyr, 533 U.S. 289, 121 S. Ct. 2271, 2299 (2001)(Scalia, J., dissenting);Dept. of Commerce v. U.S. House of Rep., 525 U.S. 316, 347 (1999) (Scalia, J., concurring);U.S. v. Bajakajian, 524 U.S. 321, 335 (1998) (Thomas, J, op. for the Court); CampsNewfound/Owatonna, Inc. v. Town of Harrrison, 520 U.S. 564, 638 & n.20 (1997) (Thomas, J.,dissenting); U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 858 n.7 (1995) (Thomas, J.,dissenting); U.S. v. Lopez, 514 U.S. 549, 585-86 (1995) (Thomas, J., concurring); Nixon v. U.S.,506 U.S. 224, 229-30 (1993) (Rehnquist, C.J., op. for the Court); County of Allegheny v. ACLU,492 U.S. 573, 648, 649 n.5 (1989) (Stevens, J., concurring in part & dissenting in part);Browning-Ferris Indus. v. Kelco Disposal, Inc., 492 U.S. 257, 295 (1989) (O'Connor, J.,concurring in part & dissenting in part); Morrison v. Olson, 487 U.S. 654, 719 (1988) (Scalia, J.,dissenting); Josephy Burstyn, Inc. v. Wilson, 343 U.S. 495, 526, 536 (1952) (Frankfurter, J.,concurring).
FN 189 2 Johnson, supra note 175, at 1532.
FN 190 See id. For example, Johnson quotes Raleigh's History, 'Out of Ethiopia beyondEgypt had been a strange progress for ten hundred thousand men.-- Id. The sentence quoted fromLocke seems different: 'It is impossible the mind should ever be stopped in its progress in thisspace.-- In context, however, Locke is describing human conception of physical space. Thesentence is part of Paragraph 4 in Chapter 17, 'Infinity,-- in Locke's An Essay ConcerningHuman Understanding. Paragraph 4 reads in full:
4. Our idea of space boundless. This, I think, is the way whereby the mind gets the idea ofinfinite space. It is a quite different consideration, to examine whether the mind has the idea ofsuch a boundless space actually existing; since our ideas are not always proofs of the existence ofthings: but yet, since this comes here in our way, I suppose I may say, that we are apt to think thatspace in itself is actually boundless, to which imagination the idea of space or expansion of itselfnaturally leads us. For, it being considered by us, either as the extension of body, or as existingby itself, without any solid matter taking it up, (for of such a void space we have not only theidea, but I have proved, as I think, from the motion of body, its necessary existence), it isimpossible the mind should be ever able to find or suppose any end of it, or be stopped anywherein its progress in this space, how far soever it extends its thoughts. Any bounds made with body,even adamantine walls, are so far from putting a stop to the mind in its further progress in spaceand extension that it rather facilitates and enlarges it. For so far as that body reaches, so far noone can doubt of extension; and when we are come to the utmost extremity of body, what is therethat can there put a stop, and satisfy the mind that it is at the end of space, when it perceives thatit is not; nay, when it is satisfied that body itself can move into it? For, if it be necessary for the
motion of body, that there should be an empty space, though ever so little, here amongst bodies;and if it be possible for body to move in or through that empty space;--nay, it is impossible forany particle of matter to move but into an empty space; the same possibility of a body's movinginto a void space, beyond the utmost bounds of body, as well as into a void space interspersedamongst bodies, will always remain clear and evident: the idea of empty pure space, whetherwithin or beyond the confines of all bodies, being exactly the same, differing not in nature,though in bulk; and there being nothing to hinder body from moving into it. So that wherever themind places itself by any thought, either amongst, or remote from all bodies, it can, in thisuniform idea of space, nowhere find any bounds, any end; and so must necessarily conclude it, bythe very nature and idea of each part of it, to be actually infinite.
(emphasis added). Id. as available at<http://socserv2.mcmaster.ca/~econ/ugcm/3ll3/locke/Essay.htm> (last visited Nov. 24, 2001).
FN 191 For example, from Locke, 'Several defects in the understanding hinder it in itsprogress to knowledge.-- 2 Johnson, supra note 175, at 1532.
FN 192 See id.
FN 193 See Webster, supra note 133, at unnumbered page headed 'pro pro pro--.
FN 194 See id.
FN 195 See Lawrence M. Friedman, A History of American Law 88-89 (2nd ed. 1973).
FN 196 See also Susie I. Tucker, Protean Shape: A Study in Eighteenth-Century Vocabularyand Usage 185 (1967) (asserting that 'Royal Progresses were still remembered. . . . Collegeofficials and Judges still made Progresses in the eighteenth century.--).
FN 197 Webster's definition of 'art-- includes 'the modification of things by human skills--, asopposed to 'nature.-- He also defines 'art-- as a 'system of rules, serving to facilitate theperformance of certain actions-- which is opposed to the 'speculative principles-- of 'science.-- Yet, Webster's 'arts-- include both the 'useful-- or 'mechanic-- (in which the hands are body aremost concerned) and the 'liberal-- or 'polite-- (with mind predominating, e.g. poetry, music,painting. Webster, supra note 133, at unnumbered page headed ARR ARS ART.
FN 198 See infra section V.B.(discussing). Other explanations are possible. Webster's thirddefinition might translate into earning more money in either business or a hand craft. Webstermay be referring to change in practice over time. If so, Webster is unclear on whether qualitativeimprovement is a necessary component of the 'advancement.-- Webster's multiple definitions of'advance-- and 'advancement-- do not answer these questions with certainty. The definitionsinclude physical movement, improvement, and giving temporally beforehand. The 'trade--definition is 'additional price; profit; as, an advance on the prime cost of the goods.-- Webster,supra note 133, at unnumbered page headed 'adu adv adv.--
'Moving towards a pre-set goal-- is an unlikely meaning for 'progress-- in theConstitution because the spectacular advances in physical sciences in the 17th and 18th centuriescommonly led to the conclusion that 'no bounds could be put to their further development.-- Ronald L. Meek, Introduction, in Turgot On Progress, Sociology and Economics 1, 29 (1973). See also Turgot, supra note 94, at 113 ('The sciences, which are based on the combination or theknowledge of objects, are as boundless as nature. The arts, which are only relations to ourselves,are as limited as we are--; even the arts, while reaching perfection in certain respects, are 'capableof continuous progress in other respects.--).
FN 199 Johnson, supra note 163, at 2. The Plan is written in the form of a letter to Johnson'spatron, Philip Dormer, Earl of Chesterfield. Id. at 1.
FN 200 See id. at 5.
FN 201 Id. at 11 (discussing pronunciation).
FN 202 Id. at 4.
FN 203 Id. at 21, 31. Johnson considered himself to be purifying the English language as theFrench Academy had done for the French tongue. See id. at 29-30.
FN 204 [FN 293] Webster was not an unbiased spectator as to the meaning of the Progress Clause. See,e.g., Letter from Noah Webster to Senator Daniel Webster, Sept. 30, 1826, reprinted in NoahWebster, A Collection of Papers on Political, Literary, and Moral Subjects (Burt Franklin 1968reprint; first published 1843) (requesting perpetual protection for his writings). But see DavidMickelthwait, Noah Webster and the American Dictionary 2, 10 -11, 82-83 (McFarland & Co.,Phil. 2000) (Webster inconsistently wanted extreme protection for books he issued even thoughhe borrowed heavily from earlier works).
FN 205 See, e.g., Wood, supra note 100, at 345 (describing change in meaning of the word'gentleman--). See also McDonald, supra note 99, at 71-72, 284-91 (discussing changes inmeaning of words 'federal,-- 'federation,-- 'republic,-- and 'republican.--).
FN 206 Webster, Preface, in supra note 133, at 2nd unnumbered page of 1828 Preface by NoahWebster.
FN 207 See id.
FN 208 The upper class and proscriptive focus of these dictionaries, furthermore, highlight theevidentiary issue I discuss more fully in the companion piece to this article, 'The Constitution asPromise: Textualism, Originalism, and Evidentiary Bias.-- Even if one accepts the originalmeaning theory of constitutional exegesis, whose 'ordinary meaning-- is relevant? The drafters? The delegates to the ratifying conventions? The persons who elected those delegates? Thepersons who were legally entitled to elect those delegates? What about the persons living in the1789 United States who would have been entitled to vote by current United States standards?
FN 209 See Forrest McDonald & Ellen Shapiro McDonald, Requiem: Variations onEighteenth Century Themes 9 (Univ. Press of Kansas 1988).
FN 210 I base this assertion on my on-line search. See <http://www.av1611.org/kjv> (searched July 4, 2001). The King James version was the standard American Bible at least untilNoah Webster published the first American revision of the Bible in 1833. See Thurston Greene,The Language of the Constitution xviii (1991).
FN 211 See supra Section III.
FN 212 Some of the decisions are difficult and disputable. Therefore, I originally placeddoubtful occurrences into the 'quality improvement-- category. See infra text accompanying notes220-231 (removing some from this category).
FN 213 Neither Johnson nor Webster lists this meaning of 'progress,-- unless you forceWebster's second definition into teleological chronology. Yet, in his pamphlet on theConstitution, Webster's two uses of the word 'progress-- are best read as invoking'chronological ordering-- or 'history.-- See Webster, supra note 100, at 29, 58. For qualityimprovement, the pamphlet uses variations of perfection, improvement, and advancement. Seeid. at 30, 31, 34, 36, 41 n.*, 58, 64.
'Chronological progression,-- furthermore, does not create a viable, separate meaning forthe Progress Clause. The Clause would translate into: 'Congress shall have the power ... topromote the chronological progression of science and the useful arts, by ...-- This presumablymeans that Congress is allowed to speed up change in knowledge and technology. That power,however, seems identical to a power to promote the 'qualitative improvement-- or 'quantitativeimprovement-- of knowledge and technology.
FN 214 See Pennsylvania Gazette, items no. 45706 (twice); 60587; 73571; 75075; 75508;78322; 83286.
FN 215 See Pennsylvania Gazette, items no. 01164 (twice); 42736; 70594.
FN 216 See Pennsylvania Gazette, items no.04118; 06546.
FN 217 in addition to the constitutional quote in Federalist No. 43, supra note 158.
FN 218 Pennsylvania Gazette, item no. 74382.
FN 219 Pennsylvania Gazette, December 5, 1787, item no. 74466 (emphasis added).
FN 220 I classified improvement by 'mankind,-- i.e. all humans, as improvement of theknowledge set.
FN 221 The two examples which facially invoke the qualitative improvement of mankind'sknowledge base are: ''Several defects in the understanding hinder it in its progress toknowledge.' Locke.-- and ''[i]t is strange, that men should not have made more progress in theknowledge of these things.' Burnet-- 2 Johnson, supra note 175, at 1532. The Burnet quote doesrefer to qualitative improvement of man's knowledge base. Burnet is disproving Aristotle'stheory that the current earth is eternal. Burnet argues that men have very imperfect knowledge ofgeography and navigation. Assuming the world is only 6000 years old, as the Bible states, '[i]t isstrange, that men should not have made more progress in the knowledge of these things.-- If menhad existed forever, their ignorance would be even more unfathomable. See Burnet, supra note124, at 46. I failed to locate the John Locke quote by doing text search of all his work I couldfind on www as etexts. 'Short Observations on a Printed Paper entitled, 'For Encouraging thecoining of silver money ...'--; Of the Conduct of the Understanding--; An Essay ConcerningHuman Understanding (6th ed)--; A Letter concerning toleration--; Some thoughts concerningeducation--; 'Further Considerations concerning rasing the value of money--; 'Concerning CivilGovernment--; Some Consideration of the Consequences of the Lowering of Interest ..--; 'TwoTreatises of Government.--
FN 222 This column provides the item number attached to the document by the databaseorganizer.
FN 223 Samuel Johnson, Noetica, in Elementa Philosphica: Containing Chiefly, Noetica, orThings relating to the Mind or Understanding: and Ethica, or Things relating to the MORALBEHAVIOUR (Kraus Reprint Co., 1969 facsimile ed. of 1752 ed. printed by B. Franklin & D.Hall, Phila; Noetica is separately paginated inside volume). Chapter VI, 'Of the Progress of theMind, towards its highest Perfection,-- deals with the developmental stages through whichindividuals pass as they grow up, i.e. 'progress-- means increase in an individual's proficiency inpre-existing knowledge and skill bases. See id. at xxxiii-xxxiv (Table of Contents showingsubject headings).
FN 224 See Henry Home, Lord Kames, Sketches of the History of Man (1968 Georg OlmsVerlagsbuchhandlung facsimile of 2d ed. 1778 in four volumes). The Gazette advertisement ispresumably for the shorter first edition which was published in 2 volumes in 1774. See Home,supra note 105, at unnumbered page before title page. Lord Kames describes his work as 'anatural history of man.-- Id. at vii (author's preface).
FN 225 See Richard Price, Two Tracts on Civil Liberty, the War with America, and The Debtsand Finances of the Kingdom: with a General Introduction and Supplement (De Capo Press 1972reprint of 1778 first combined ed. of Additional Observations on the Nature and Value of CivilL]iberty, and the War with America and Observations on the Nature of Civil Liberty, ThePrinciples of Government, and the Justice and Policy of the War with America, first published1777).
FN 226 See 1 Blair, supra note 178, at 122 ('I shall first give a History of the Rise andProgress of Language in several particulars . . . which shall be followed by a similar History ofthe Rise and Progress of Writing.--)..
FN 227 Eighteenth century writers were quite taken with the concept that different modes ofdiscourse belonged to different occasions and subjects. See Aristotle, supra note 164, at 196('each kind of rhetoric has its own appropriate style.--); James Beattie, Essays: On Poetry andMusic 7 (Routledge/Thoemmes Press 1996) ('[T]he essential or indispensable rules of an art arethose that direct to the accomplishment of the end proposed by the artist.--); Witherspoon, supra,note 127, at 290-95 (discussing need to match style to subject, goal, and occasion in order to'preserve the writer from a vicious and mistaken taste.--). See also Daniel Defoe, The CompleteEnglish Tradesman 7 (Historical Conservation Society, Manila, 1989 facsimile of 4th ed. 1738)('a tradesman's letters should be plain, concise, and to the purpose; no quaint expressions, nobook-phrases, no flourishes ....--); John Tennent, Every Man His Own Doctor 8 (4th ed. 1802,Richmond, Va.; microform, Early American Imprints, 2d series no. 2200) ('In setting down thefollowing prescriptions, I have been cautious of talking like an apothecary; that is, of using hardwords, that perhaps neither my patient, nor I myself understand.--). Compare id. at 7 ('thesymptoms cannot be easily by mistaken--) with [Dr.] Thomas Young, Letter Printed in Pen. Gaz.Oct. 17, 1775 at 1 (Accessible Archives Item No. 58370) ('I must beg your favor to convey thisgeneral intelligence to all who may think my poor advice worthy of their attention, namely, thatthe grand mystery in our profession is, to determine accurately the peculiar constitution, habit,particular disposition, natural or accidental, of every patient we take upon us to advise.Understanding then to satisfaction how such patient has been, as to the common operation of theseveral functions of the body, we are next to examine into the several deviations from thatstandard which now take place in the system[.]--).
FN 228 See Pennsylvania Gazette Items 06302 (1744), 06382 (1744), 5272 (1742), 04907(1742), 04850 (1741), 04533 (1741), 36763 (1765)35749 (1765), 34048 (1764), 19071 (1755),10647 (1749), 27581 (1761) (including advertisements for Pilgrim's Progress).
FN 229 The Pilgrim's Progress is John Bunyan's addition to a pre-existing genre of religiousbooks using a journey as an allegory for a sinner's attempt to attain salvation. See, e.g., Memoirof John Bunyan, in The Pilgrim's Progress 1, 4 (Fleming H. Revell publisher n.d.)(mentioningthat Bunyan's wife owned a copy of 'The Plain Man's Patheway to Heaven--). The journeyallegory is noted in, for example, the fuller title, 'The Pilgrim's Progress from this World to thatwhich is to Come, delivered under the similitude of a dream: wherein is discovered the mannerof his setting out, his dangerous journey, and safe arrival at the desired country.-- See also, e.g.Bunyan, supra, at 13 (the saints' 'journey--); 19 ('This book will make a traveler of thee--); 21('As I walked through the wilderness of this world ....--); 42 (Christian describing himself as 'atraveler-- requesting 'help to me in my journey--). A more modern, comic use of 'progress' for ajourney of discovery is Mark Twain, The Innocents Abroad, or The New Pilgrims' Progress:Being an account of the steamship Quaker City's pleasure excursion to Europe and the HolyLand (Harper & Bros. Publ. 1906).
FN 230 See, e.g., James Beattie, The Minstral; or The Progress of Genius: with Other Poems189-90, 195, 201-02, 214, 216 (London 1811) (showing hero is traveling). The Minstral soldfive large editions in less than four years and attracted major attention abroad in severaltranslations. See Alexander Chalmers, Memoirs of the Life of Dr. James Beattie, in id. iii, xii. Beattie's book is advertised in Pennsylvania Gazette item 70456 (1784). The Gazette alsoincludes an advertisement for the picture series The Rake's Progress. Item 24217 of 1760. Thisis one of two famous etching series by Hogarth showing the life and infamous death of moraltypes, an outgrowth of the allegorical journey genre. The other picture set is The Harlot'sProgress. See Henry Fielding, Tom Jones 91, 139 (mentioning The Harlot's Progress) (PenguinPaperback 1966).
FN 231 See Item no. 59857.
FN 232 See Meeck, supra note 198, at 6.
FN 233 See id. at 11. The standard alternative European view of human history was Christian. See, e.g., Bossuet, supra note 177 (presenting history of mankind with strong reliance on theBible); see also Burnet, supra note 124 (presenting a biblically-based, geological history of theearth). The relationship between secular progress theses and religious hope in a messianic age iscomplex and disputed. Compare, e.g., Meek, supra note 198, at 29 (asserting that Turgot'stheory was both an alternative to and strongly influenced by Bossuet's); Ernest Lee Tuveson,Millennium and Utopia: A Study in the Background of the Ideal of Progress 4 (1949) (arguingthat religious, teleological approach to the world is one ancestor of the belief in a scientific,evolutionary type of progress) with Burry, supra note 63, at 68 (describing Christian belief in 'anactive intervening Providence-- as opposed to the Idea of Progress).
FN 234 This attitude is congruent with colonial North America's notorious disrespect forprofessionals and specialists. See, e.g., Boorstin, supra note 146, at 168, 189-265.
FN 235 Cumulation is premised on language, especially in written form. See Turgot, 'APhilosophical Review of the Successive Advances of the Human Mind,-- in Turgot on Progress,Sociology and Economics 41, 41-44 (trans. ed. Ronald L. Meeck Cambridge Univ. Press 1973).
FN 236 See id. (outlining thesis); see also Meek, supra note 198, at 7-13 (same).
FN 237 Condorcet, supra note 94.
FN 238 Condorcet's Sketch was not published in any language until 1795. See Condorcet,supra note 94 at xiii (inside 'a note on the text--). The first English language statement ofTurgot's position may have been Condorcet's 'Life of Turgot-- which was published in Englishin 1787. See Meek, supra note 198, at 13 n.5.
FN 239 Condorcet, The Life of M. Turgot, Controller General of the Finances of France in theYears 1774, 1775, and 1776; written by The Marquis of Condorcet, Of the French Academy ofSciences, and Translated from the French, With an Appendix (London, J. Johnson, 1787).
FN 240 I did a full text search for 'turgot-- and located two items, neither of which mentionedthis volume. See Search Run on Dec. 21, 2001 locating Items 71617 and 73991 (on file withauthor).
FN 241 See Condorcet, supra note 239, at 15, 16, 17 (three occurrences), 116, 133, 150, 169,190, 279 n*, 339, 360, 361, 363 (twice), 364.
FN 242 See id. at 43, 67, 254, 257, 328, 337, 418.
FN 243 See id. at iv, 37, 372.
FN 244 See id. at 27, 104, 297.
FN 245 See id. at xii, 16 (twice), 17 (twice), 89, 132, 169, 232, 258, 259, 330, 360, 361 (threetimes), 362, 364, 365, 367, 369, 392, 393, 394.
FN 246 The standard eighteenth century concept of 'economics-- was that part of moralscience which dealt with an individual's duty to his or her family. See 2 Beattie, supra note 176[Moral Science], at 10. Smith's extension leads to the dismal first essay on population byThomas Robert Malthus. Malthus was responding to one of Godwin's essays in 'The Enquirer--.See Robert Thomas Malthus, Population: The First Essay xiii (1st ed. of Ann Arbor Paperback)('The following Essay owes its origin to a conversation with a friend, on the subject of Mr.Godwin's Essay, on avarice and profusion, in his Enquirer.). The last two works, however, werepublished respectively in1797 and 1798, after the drafting and ratification of the U.S.Constitution. See Malthus, supra, at xii, xiv; William Godwin, The Enquirer: Reflections onEducation, Manners, and Literature in a series of essays (Garland Publishing 1971 facsimile)(reproducing date on unnumbered title page of original ed.). I , therefore, exclude them from my'progress-- survey.
FN 247 See Michael Kiernan, Preface, to Francis Bacon, The Advancement of Knowledge vii,vii (ed. intro. Michael Kiernan; Clarendon Press, Oxford 2000).
FN 248 See Michael Kiernan, Introduction, to Bacon, supra note 236, at xvii, xvi, xxiv.
FN 249 See, Bacon, supra at 125, at 9, 23.
FN 250 See id. at 111. This is the Bacon quote used by Johnson's dictionary. See supra note192 and accompanying text.
FN 251 See Bacon, supra note 125, at 191. I admit that this quote is difficult to parse. I may,therefore, be in error.
FN 252 See also id. at 5, 25, 27, 32, 55 (using 'advancement-- to mean improvement inknowledge base).
FN 253 See Meric Casaubon, A Treatise Concerning Enthusiasm (1970 facsimile of 1655 ed.).
FN 254 See id. at 176, 199.
FN 255 See id. at 184.
FN 256 Lawrence E. Klein, Editor's Introduction, in Shaftesbury, Characteristics of Men,Manners, Opinions, Times vii, vii (ed. Lawrence E. Klein Cambridge Univ. Press 1999). Shaftesbury's optimistic philosophy links aesthetic and moral senses; it teaches that politicalliberty is central to men's intellectual and cultural achievement, which he labeled 'politeness.--See id. at vii, xvii-xviii.
FN 257 See Shaftesbury, supra note 176, at 22, 11, 354, 395, 396, 464 (twice).
FN 258 See id. at 202.
FN 259 See 2 Mandeville, supra note 164, at 43.
FN 260 See F. B. Kaye, Introduction, in Bernard Mandeville, The Fable of the Bees: orPrivate Vices, Publick Benefits xvii, xxxix, lx-lxi (Clarendon Press, Oxford, Eng. 1924).
FN 261 See id. at xxxiii_xxxvi.
FN 262 See id. at cxvii.
FN 263 See Mandeville, supra note 164, at xv-xvi (table of contents).
FN 264 See id. at vol. 1, p. 288 ('Few children make any progress at school, but at the sametime they are capable of being employed in some Business or other ...--).
FN 265 See id. at vol. 2, p. 221 (referring to lack of 'progress-- towards hearing Horatio'stheory of the origin of society).
FN 266 See id. at vol. 2,. 143 ('Which all together make a strong Proof of the slow Progressthat Art [shipbuilding] has made ....--); id. at vol. 2, p.p.146 ('Men would make but a smallprogress in good Manners the first three hundred Years [after barbarism]. --).
FN 267 See, e.g., id. vol. 2, at 187-88, 319-23.
FN 268 See Bernard Mandeville, A Letter to Dion 40 (ed. Bonamy Dobree: Univ. Press ofLiverpool, 1954).
FN 269 See David Berman, Introduction, to George Berkeley, Alciphron or the MinutePhilosopher 1, 1-2 (ed. David Berman 1993). The work is written as a dialogue betweencharacters representing freethinkers (including Shaftesbury and Mandeville) and Christians (suchas Berkeley). See id. at 10.
FN 270 See George Berkeley, Alciphron or the Minute Philosopher 6, 12, 24, 29, 52, 158 (ed.David Berman 1993).
FN 271 See id. at 139.
FN 272 See id. at 39.
FN 273 Francis Hutchinson, Reflections Upon Laughter and Remarks upon the Fable of theBees (Garland Publishing 1971 facsimile of 1750 ed.).
FN 274 Francis Hutchinson, An Inquiry into the Original of Our Ideas of Beauty and Virtue(Garland Publishing 1971, facsimile of 2d ed. 1726).
FN 275 Francis Hutcheson, Francis Hutchinson on Human Nature (ed. Thomas MautnerCambridge Univ. Press 1993) (containing both [FN 294] 'Reflections on Our Common Systems ofMorality,-- and 'On the Social Nature of Man--).
FN 276 See Hutchinson, Bees, supra note 273, at 50, 54, 72.
FN 277 Smith, supra note 65. This work was first published in 1759. See D. D. Raphael &Al. L. Macfie, Introduction, in id. at 1, 1.
FN 278 Adam Smith, The Wealth of Nations (Modern Library no date). This book was firstpublished in 1776. See Max Lerner, Introduction, in id. at v, vii.
FN 279 See Smith, supra note 65, at 88 (meaning spread or numerical increase); id. at 289(meaning figurative movement or chronological ordering).
FN 280 See Smith, supra note 168, at 148, 175, 176, 217 (three times), 218, 219 (twice), 220(twice), 224 (twice), 225, 226, 228 (twice), 229, 230, 235, 242 (twice), 318, 658, 668, 669, 738.
FN 281 See id. at 10, 38, 51, 8 (twice), 89, 135, 191, 217, 326, 327, 328, 329, 347, 348, 356(twice), 357, 373, 393, 397, 533 (twice), 618, 638, 651, 658, 659, 661, 664, 680 (twice), 687,730, 734, 757, 876, 881.
FN 282 See id. at 885, 886.
FN 283 See id. at 654..
FN 284 See id. at 723.
FN 285 See id. at 347, 394, 532 (twice).
FN 286 See id. at 533 (twice), 551, 657, 708, 757, 879.
FN 287 See id. at 320, 360, 380, 383, 534 (twice), 537 (twice), 538 (three times), 553 (twice),565, 590, 599.
FN 288 By 'mixture,-- I mean phrases such as 'the progress of population and law-- wherepresumably the population increase is numerical and the legal increase is qualitative.
FN 289 See supra note 213 (discussing).
FN 290 U.S. Const. Art. I, Sec. 8, Cl. 8 (The Progress Clause, a.k.a. the Copyright and PatentClause, the Intellectual Property Clause, and the Exclusive Rights Clause).
FN 291 See supra note 87 (discussing Treaty Power).
FN 292 This article is dedicated to David Lange in partial repayment for Recognizing thePublic Domain, 44 (4) L. & Contemp. Props. 147 (1981).
FN 293 [Woods?]
FN 294 Francis Hutchinson, An Inquiry into the Original of Our Ideas of Beauty and Virute(Garland Publishing 1971, facsimile of 2d ed. 1726).