From the Lawton Constitution
By James Finck, Ph.D.
As a professor, one of the most important things I own is my ideas. I spend way too much time just thinking about things, sometimes very unimportant things, sometimes in the middle of the night when I should be sleeping things, but often about history things that eventually make their way into this column.
When we think about the original Constitution, we tend to think about how it was designed to limit government power, but not necessarily to protect individual rights. That is why we needed the Bill of Rights after the Constitution already had been ratified. Yet, in Article I, Section 8, Clause 8, while listing the powers of Congress, we see one of its responsibilities is to protect ideas. That is how important ideas were to our Founding Fathers. It is one of the few places in the original Constitution where individual rights receive direct protection. Clause 8 reads, “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.”
What I find most interesting about this clause is that it is one of the provisions that seems to point toward capitalism as an economic system. The Constitution does not officially establish any particular economic system. Adam Smith, the father of capitalism, had only published “The Wealth of Nations” in 1776, yet this clause creates a system intended to reward individuals for their ideas.
By granting individuals exclusive rights to their inventions and writings, the Constitution encourages innovation, entrepreneurship, and investment by allowing people to benefit financially from their ideas and creations. The Founders recognized that protecting intellectual property could stimulate competition, technological advancement, and economic growth. This clause reflects an important principle of capitalism, that individuals should have the opportunity to profit from their creativity, labor, and ingenuity.
But going back to my original idea, it is not just the things we make that are protected, but our ideas themselves. English jurist William Blackstone, who wrote probably the most famous commentary on English common law, argued that a literary work possessed an identity beyond the physical paper on which it was printed. Its distinctive combination of ideas and language belonged to its author, who could authorize others to reproduce or distribute it. His discussion reflected an emerging understanding that intellectual labor deserved legal protection, much like physical property did.
One reason the Founders needed to address this issue in the Constitution was that, under the Articles of Confederation, individual states could enact their own laws. This meant intellectual property might be protected in one state but not in another. In “Federalist No. 43,” James Madison defended the clause, arguing that the public good coincided with the claims of authors and inventors. Because individual states could not adequately protect these interests on their own, a national system was necessary.
Using this new constitutional authority, Congress acted quickly to put it into effect. The Copyright Act of 1790 protected books, maps, and charts, while the Patent Act of 1790 established a process for granting patents on qualifying inventions. These protections were fairly basic at first, but it would not take long for the courts to get involved in defining exactly what Clause 8 meant.
The Supreme Court’s very first case was Wheaton v. Peters (1834). The case started when the Supreme Court’s official reporter, Henry Wheaton, sued his successor, Richard Peters, for copying and selling his volumes of court decisions. The Court ruled against Wheaton, declaring that while an author owns their unpublished writing naturally, once a book is published, copyright is a limited privilege granted strictly by Congress. Therefore, if a writer fails to follow the government’s exact legal rules, like registering the book, anyone is free to copy it.
If that sounds strange, it is. Under this system, if you liked one of my books, say “Divided Loyalties: Kentucky’s Struggle for Armed Neutrality in the Civil War,” you could potentially copy and sell it if I had failed to comply with the copyright requirements. Luckily, this system changed with the Copyright Act of 1976, which became the foundation of modern American copyright law. One of the biggest changes was that copyright protection became automatic the moment an original work was created. It does not even have to be published; it is protected the moment it is written. Now, if you want to give all your friends and family copies of “Divided Loyalties” for Christmas, you will have to purchase them directly from my publisher, Savas Beatie, or from most online bookstores.
There is one interesting exemption in the 1976 act known as “Fair Use.” That exemption allows the use of copyrighted material without permission or payment, provided it is for a transformative or educational purpose. I started off this article using William Blackstone’s writing just as I often use Joseph Story’s “Commentaries on the Constitution of the United States” from 1833 and as long as I cite them, I am not stealing their intellectual property.
An important part of the clause is the phrase “by securing for limited Times.” The reason copyright protection was limited was that our Founders feared permanent monopolies. If copyrights lasted forever, a single family or company could potentially control access to books, inventions, and technology indefinitely. The goal was to reward creators for their work while eventually allowing the public to benefit from it.
In Eldred v. Ashcroft (2003), the Supreme Court upheld the 1998 Copyright Term Extension Act, which added 20 years to existing copyright terms. The majority concluded that Congress had broad discretion to determine copyright duration provided the term remained limited rather than perpetual. Under the current general rule, a copyright lasts for the life of the author plus 70 years.
Ultimately, the Intellectual Property Clause embodies a balance between individual achievement and the public good. Authors and inventors receive temporary legal protection to encourage them to create, but the Constitution also insists that these exclusive rights cannot continue indefinitely. Once copyright protection expires, the work enters the public domain and becomes free for anyone to read, print, adapt, or build upon, fueling the next generation of culture and innovation.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com.
