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Emancipating the Mind: Lincoln, the Founders, and Scientific Progress

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Key Points

  • The US Constitution, the world’s first written constitution, contains an explicit acknowledgment of progress as a human possibility. “New” is the oldest word in the American political lexicon, and arguably, the greatest generator of newness is the patent and copyright clause.
  • As Abraham Lincoln so vividly described in his “Lecture on Discoveries and Inventions,” the patent clause adds “the fuel of interest to the fire of genius.”
  • The underlying assumptions of the patent provision are that scientific advance will redound to the public good and that the public good can be achieved by rewarding private enterprise.
  • America is uniquely open to science, but we should not forget that applied science can underwrite slavery as easily as liberty. We need education that promotes not only science and useful arts but also wisdom, Lincolnian wisdom.

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Introduction

The American founders, the US Constitution, and Abraham Lincoln were dear to Walter Berns, as his entire career testified and as I learned firsthand when I took an American political thought seminar with him, away back in the early 1980s, when he visited for a semester at the University of Chicago. In Walter’s honor, I will touch upon all three of his favorites, but on a topic that I don’t believe he ever addressed—namely, the meaning and status of science and technology in our political order.

Let me begin, as I believe Walter might have, by drawing a contrast between ourselves and the ancient Greek city-state of Sparta. Our regime is uniquely friendly to science, as can be seen from Article 1, Section 8, of the US Constitution, which grants Congress the power “to promote the Progress of Science and useful Arts.” Unlike us, Sparta didn’t believe in promoting progress (scientific or otherwise) because it didn’t believe there was such a thing as progress, at least not after the great leap forward of its dramatic founding by Lycurgus. If the political community is already in the best of health, then change can only mean decline. To stave off decline, Sparta disallowed the great agents of change: trade and technology. Interestingly, this devotion to fixity also entailed hostility to the written word. Sparta’s fundamental ordinance, called the Great Rhetra, which came direct from the Delphic oracle, was that the laws should never be put in writing. Instead, Sparta sought to imprint its unwritten laws on the young through “good discipline.” Sparta aimed to write indelibly, on the heart itself, thus creating incontestable agreement—the kind of homogeneity that repels questioning. The avoidance of the written word affected the spoken word too. We still call a terse, uninquisitive style of speech “laconic” after Laconia, the region of the Peloponnese where Sparta was located.1

Opposition to written laws has not been as pronounced in other nations or traditions. Certainly, the adherents of the Abrahamic religions, often called the Peoples of the Book, managed to embrace writing without sacrificing reverence. Moses and the biblical God took a different route to obedience than Lycurgus and the Delphic oracle, but both sought obedience. Yet it seems that the written word, even when the Writ is regarded as Holy, does invite quarrels over interpretation. The exegetes of the Torah, Bible, and Koran are the precursors of our schismatic schools of constitutional interpretation.

Even after the advent of written scripture, it took an awfully long time for the innovation of a written constitution to appear. Ours, as we all know, was the first. The idea caught fire: Of the almost 200 nations in the world today, only the merest handful are without a codified constitution, and those few (e.g., the UK, Israel, and Saudi Arabia) do, as a matter of course, have statutory laws, not simply customs.

It shouldn’t be surprising that the world’s first written constitution contains an explicit acknowledgment of progress as a human possibility. The progressive assumption is there not only with general reference to science and technology, but politically as well. The Preamble asserts that the Constitution aims to achieve “a more perfect Union” and to “promote the general Welfare”; both phrases emphasize improvement—indeed, the literal meaning of “pro-mote” is “to forward move.” Likewise, the provision for constitutional amendments (in Article 5) welcomes a search for further political improvement, and the provision for “new States” (in Article 4, Section 3) encourages the country’s enlargement. “Bigger and better” is the American way. The project “to institute new government,” first called for in the Declaration of Independence and finally realized in the US Constitution, is defended in The Federalist Papers, where the word “new” is repeatedly invoked. The authors of the “new science of politics” pursued “a new and more noble course” incorporating “wholly new discoveries” into the “new modelled” “new Constitution.” “New” is the oldest word in the American political lexicon.2

Arguably, the greatest generator of newness is that clause I began with, a clause that is known not as “the science clause” or “the progress clause” but as “the patent and copyright clause,” although neither the word “patent” nor “copyright” appears in the text. Here’s the full sentence: “The Congress shall have Power . . . to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Of the 18 paragraphs in Section 8, each one specifying a power of Congress, this one is unique. All the other paragraphs simply state, without elaboration, what power is being granted—for instance, Congress shall have power “to borrow money” or “to establish Post Offices.” The means for “carrying into Execution” each of the enumerated powers is left up to Congress under the general guidance of “the necessary and proper clause,” which concludes Section 8. However, in the case of the power to promote the progress of science, the means to attain the object are spelled out. Issuing patents and copyrights seems to be the sole constitutional means by which the federal promotion of science can be pursued. Thus, what could have been a very far-ranging grant of power became instead a narrow one. Accordingly, we refer to the clause by its restricted means rather than its more expansive aim; it is “the patent clause” rather than “the progress of science clause.”

According to Madison’s records of the Constitutional Convention, the initial suggestions for this section detailed many other modes of promoting the arts and sciences, such as offering research grants and prize money to inventors, as well as establishing public institutions of learning.3 All the suggestions were sent, by unanimous vote, to the Committee of Detail. We know nothing about the discussions that took place there. All we know is that the final wording was approved by the full body, unanimously and without discussion, during the last two weeks of the convention.4

It might be worth noting that the limits expressed in the clause flow in two directions, by which I mean that, just as the promotion of science is limited to patents, the rationale for patents is limited to their public benefits. Patents, remember, were considerably more controversial than post offices. Patents began in England as monopoly privileges granted by the Crown to merchants who garnered royal favor. The drafters of the Constitution wanted to be clear that their reason for protecting the financial interests of authors and inventors was for the public purpose of promoting scientific progress. They were not providing a blanket congressional authorization to set up commercial monopolies or allocate economic privileges, as the Crown had routinely and abusively done in eras past. Indeed, the Constitutional Convention rejected wording that would have granted Congress the power to charter corporations.5

There is one other unique feature of the patent clause: It refers to a “right”—the only instance of the word in the Constitution of 1787. This “right”—which we now call an “intellectual property right”—is, however, very different from the rights that would soon be acknowledged in the decalogue of constitutional amendments. The Bill of Rights forbids Congress from abridging or violating the fundamental rights of conscience, speech, and personal security. By contrast, intellectual property rights are left entirely subject to Congress’ statutory determination. Benefiting from the commercialization of one’s writings and discoveries is not, it seems, a natural right (an inalienable right), but rather a civilly granted privilege.6

It’s worth thinking about why this is so. Certainly, one has an inviolable right to think one’s own thoughts. However, once you publish them, the ideas expressed cease to be yours. They become the shared possession of all who comprehend them. The Pythagorean theorem does not belong to Pythagoras and never did. By nature, the realm of ideas is pure communism. What the copyright clause does is say that in hopes of encouraging more folks to think original thoughts, society will forgo its claim for a certain amount of time and create instead an artificial right in the first thinker who decides to share his thoughts. Kindergarten teachers do the same when they encourage children to share by offering tangible rewards for sharing (candy or gold stars), thereby yoking the self-interest of the child to the public interest. The notion of intellectual property rights is itself a human invention for the encouragement of human invention. But that also means that intellectual property rights can be changed and redefined to fit the needs of the commonwealth.

Although limited in the ways I have outlined, the patent clause is not inconsiderable. As Abraham Lincoln so vividly described in his “Lecture on Discoveries and Inventions,” what the patent clause does is add “the fuel of interest to the fire of genius.”7 That is a pretty combustible combination—one that has certainly furthered the Promethean achievements of modern science and technology. The underlying assumptions of the patent provision are that scientific advance will redound to the public good and that the public good can be achieved by rewarding private enterprise.8

Read the full report.

Notes

  1. The Spartan way of life was designed to be the unexamined life. As described by Plutarch, Spartan habituation was singularly harsh, even inhumane. The collective was all; the individual nothing. Love of country was achieved by repressing all other loves, whether love of others or love of self. This was a hypertrophic patriotism that left no room for private life, private property, or the private pursuit of fame, fortune, or learning. No self-interest, no self-preservation, certainly no self-promotion, no self at all really.
  2. See especially Federalist, no. 14.
  3. Many types of institutions were recommended, from seminaries (a term that often referred to educational academies for women) to trade schools to universities. James Madison, Notes of Debates in the Federal Convention of 1787 Reported by James Madison (1787), notes for August 18, 1787.
  4. Madison, Notes of Debates, September 5, 1787.
  5. Madison, Notes of Debates, August 18, 1787.
  6. In saying that the right is to be secured “for limited Times,” it is strongly implied that the right is not to be lifelong. It is alienable, not inalienable. Moreover, Congress is not required by the Constitution to grant authors and inventors copyrights and patents. Congress could have allowed this power to lie fallow, without violating anyone’s rights.
  7. Abraham Lincoln, “Lecture on Discoveries and Inventions,” in The Writings of Abraham Lincoln, edited by Steven B. Smith (New Haven, CT: Yale University Press, 2012), 238. Lincoln regularly employed italics to feature key words. In this and all following quotations, the italics are his.
  8. James Madison discusses the patent clause in Federalist 43, where he declares that in this matter of extending copyrights and patents to authors and inventors, “The public good fully coincides . . . with the claims of individuals.”

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