Keep Those Ideas Coming: How the Constitution Encourages Inventiveness

The Constitution of the United States was the world’s first written national constitution. In 1787 it was the only one; now approximately 160 nations have written constitutions — more than half of them less than 15 years old.

What accounts for the remarkable stability and longevity of our Constitution? Its durability can probably be best ascribed to the fact that its unusual excellences have earned the respect and loyalty and affection of the people. Consider its main features:

• It establishes limited government, based on the principle that, because all human beings have inherent personal rights, there are some things that are just none of the government’s business.

• It provides a system of separation of powers, with built-in checks and balances, which prevents or detects and punishes excesses of power.

• It builds a federal structure, which helps to assure widespread citizen participation in local self- government.

• It secures freedoms of speech, press, and religion that are rare in most other parts of the world.

• It provides, in an unusual manner, the essential conditions for economic growth. This last requires further explanation.

In 1787 the American nation was just beginning to understand the processes of economic growth. There were still remnants of mercantilism, with its preference for government regulation, and of feudalism, with its preference for property inn land over commercial property.

Although we see in the text of the Constitution no evidence of feudal or mercantilist thought, we also see almost no clues to economic doctrines of any other sort. There are, instead, a number of somewhat scattered clauses — such as that states cannot adopt laws that impair the obligation of contracts; and that the Congress shall have power to levy taxes, borrow money, coin money and fix its value, make uniform bankruptcy laws, and regulate commerce with foreign nations.*

But there is one clause that does give a strong indication of the economic thinking of the Framers, and that is the clause commonly called the “copyright and patent clause.”

The first article of the Constitution establishes the legislative branch of the new government and enumerates the powers it shall have. Among these new powers — such as to make uniform rules for naturalization, to establish post offices, to constitute the federal courts, and to raise armies and maintain a navy — we find this unusual one:

The Congress shall have power to promote the progress of science and useful arts, by . . .

That is the way the clause begins, but I have left it unfinished, for the moment, to allow us to consider how best one might complete it. Imagine yourself a delegate to the convention. How should a constitution writer complete the sentence, in twenty words or less, to state how Congress is to go about this new task of promoting progress?

The possibilities are numerous. Congress could establish a nationwide educational system. It could establish a national university with admission on a strict competitive basis. It could establish specialized national research institutes, or award prizes for the best research papers, inventions, and literary works. It could establish an agency for national testing to find the most promising youngsters for special instruction and support.

None of these would have been a new or strange idea to the delegates to the convention, for all of them had already been tried or advocated in one place or another.

All the more striking then is the way in which the delegates did choose to complete the sentence:

. . . by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

In short, of all the ways the convention delegates might have chosen, the one they decided upon was to secure by legislation the possibility of profiting in the marketplace.

How did they come to that formulation? We can only speculate because there is no record of any discussion of this provision. But they were all men of ideas, leaders and innovators themselves; among them was Benjamin Franklin, considered one of the most innovative practical thinkers of his time. These men knew that the promise of money cannot by itself produce new ideas.

We know, and they knew, that it is foolish to think that the best writers, artists, researchers, and inventors care so much about money that they would not experiment or compose music or paint or write plays or inquire, unless there were a profit. I mean more than to evoke the romantic, fictional, image of the starving poet in an unheated garret. We have too many real examples of great minds and ultimate benefactors of mankind who went unrecognized and unrewarded all their lives, yet never ceased their productive work.

What then was in the minds of the Constitution writers? The best explanation I know was provided, many decades later, by Abraham Lincoln, who said of this constitutional provision that it “added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.”

Lincoln made a helpful distinction. Genius has its own fire. The desire to decipher the mysteries of nature and of nature’s laws, to make something that has never before existed, to say what has never before been said — these have a grand power of their own. But it is a power that can be fueled — nurtured, protected, enhanced.

That fuel can come in various forms — well – equipped laboratories, research assistance, a collegial setting with competent colleagues, opportunities for study, time for reflection and writing, prizes and honors, and the monetary rewards associated with copyrights and patents.

That brief provision, called by everyone the “copyright and patent clause,” but which should really be called the “progress clause,” assumes that people work better when they have a material incentive; that it is unjust for an inventor to have no special advantage from his own invention; and that society has a stake in seeing that those who make contributions that the rest of us need are kept happily productive by being rewarded.

There are many other ways in which innovative work can be rewarded. Even in a state-controlled economy, there are rewards for accomplishments considered valuable to the state — promotion, high salaries, honorific titles, a deluxe apartment, a country home, servants, a limousine with driver, and so on. These rewards may not seem too different from those of our own system, but there is one major difference: they are all in the power of the government or party officials to bestow or withhold, and this influences and often dictates the kind of work undertaken and rewarded.

Under the “progress clause,” the decisions on which research questions to ask, which experiments to conduct, which products to design and produce, which books to write, are all left to private persons. As for the system of reward, that is determined by the preferences and decisions of countless individuals in the private sector — forces difficult or impossible for free government to control.

What then have we learned about the way the Founders intended to provide for economic growth? The clues in this “progress clause” suggest that they saw progress as a national concern, but springing from private endeavor and enterprise; that government does not have the primary role; that monopoly should be avoided (exclusive right for limited times) in favor of competition; and that the prospect of profit be recognized and approved as a powerful incentive.

Of all the forms of encouragement and reward one can think of “to promote the progress of science and useful arts,” the one most appropriate to a free society, and therefore the one most appropriate in a constitution devoted to securing the individual rights of the people, is just the one the Founders chose.

Reprinted from Think magazine. Copyright 1987.


Robert Allen Goldwin (1922 – 2010) was an American political scientist specializing in the study of the Constitution, who left academia to enter government at the invitation of his friend Donald Rumsfeld, serving as adviser and "intellectual-in-residence" for the presidential administration of Gerald Ford. He was subsequently a scholar at the American Enterprise Institute.

Join the conversation in our Telegram Chat! You can also find us on Facebook, MeWe, Twitter, and Gab.