Essay 20-C: The Invention of the Telephone and Founding Documents

Essay Read by Constituting America Founder, Actress Janine Turner

Alexander Graham Bell and his business partner, Gardiner Hubbard, filed a patent application for an invention entitled an “Improvement in Telegraphy” on February 14, 1876. A few hours later, a prominent inventor by the name of Elisha Gray applied for a patent caveat for a similar invention from the same office. In March, Bell’s patent was approved by the patent office and the legal battle over the rights to the telephone patent had begun. 

At the center of this conflict was a statute explicitly authorized by the Constitution. Under Article I, Section 8, Clause 8, Congress was empowered “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.” The exclusive right to the discoveries of a scientific nature is known as a patent, while a comparable right to literary works is known as a copyright.

This constitutional provision was not an entirely new innovation drawn from the minds of the founders. There was a fairly long and not always noble history behind it. In Britain and elsewhere, monopoly rights were conferred by the crown to make use of a new technology or even an old asset, often in exchange for a fee paid to the treasury. Elizabeth I infamously granted monopolies for the sale of salt, starch, and glass in return for payments that for all practical purposes were specialized taxes. Parliament curbed these practices by enacting the 1623 English Statute of Monopolies. This law forbad the monarch from granting monopolies of any kind with the single exception of letters patent that were granted for new inventions that benefitted the country and which were limited in duration to no more than fourteen years.

This protection for patents and copyrights were soon recognized by American colonial assemblies and, later, state governments. The Massachusetts Bay Colony Body of Liberties established rights of exclusive use for inventions that were “profitable for the Country” and of limited duration. After the American Revolution, the new Commonwealth of Massachusetts enshrined this protection into the state constitution, which was largely drafted by John Adams. In most states, letters patent were granted by special legislative acts passed in state legislatures. The Congress under the Articles of Confederation appointed a committee to report on literary property in the United States. Among the five members of that committee was James Madison, who later would become the co- author of the intellectual property clause in the federal constitution. That committee produced a resolution, passed by the Congress in 1783, recommending that states pass copyright statutes that would grant authors rights to their work for a period of not less than fourteen years.

At the Constitutional Convention, on the same day, Madison proposed a provision providing copyright protection for authors, and Charles Pinckney proposed a provision for granting patents to inventors. Together these proposals would authorize the federal government to grant patents, copyrights, and “encouragements” (a.k.a., bounties) for the creation of new kinds of what we today call “intellectual property.” Madison also proposed the creation of a national university and Pinckney proposed “seminaries for the promotion of literature and the arts and sciences.” These education provisions seemed aimed at encouraging the creation of new innovative works, rather than simply the teaching of students. The convention assigned these proposals to the Committee on Unfinished Parts. In committee, the proposals for national schools and “encouragements” were dropped, while the more general language to protect intellectual property was presented to the convention. The intellectual property clause was adopted on September 5, 1787, very late in the convention. There is no record of any debate on the subject, so it is likely that the clause was not very controversial. Most of the delegates had been deeply involved in their state governments, and most were present when state intellectual property laws were enacted. Madison himself had been the author of Virginia’s state copyright law. The delegates were probably well aware of the difficulties for inventors and authors of dealing with multiple states’ patent and copyright laws. 

In Federalist #43, Madison wrote the following regarding the intellectual property clause: “The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.”

While the intellectual property clause in the Constitution has not been particularly controversial in general, the application of copyright and patent law in specific cases has proved to be quite contested. The concept of intellectual property implicates two economic issues that may have different impacts upon the functioning of the marketplace. The first issue is the security of property rights.

Patents and copyrights protect the producers of intellectual property from the encroachment of others who had no hand in the creation of their works. Without this protection, there would be far less incentive for invention and innovation. The second issue, monopoly, may have quite different market implications. Monopoly is generally thought by economists to be a cause of market failure. Granting monopolies in general may allow producers to harm consumers since there is only one provider from whom a particular product or service can be purchased. It may also encourage concentrations of wealth and power that may result in political as well as economic problems. The problems created by the monopoly control created by patents and copyrights can be mitigated by limiting the duration of the protection, although there is much debate about how long that duration should be.

In the case of the patent granted for the invention of the telephone, the inventor Elisha Gray immediately appealed the patent granted to Bell. The appeal was first heard by the federal government patent office, and then the challenge made its way into the courts. Eventually, the dispute rose to the United States Supreme Court, where in a series of long opinions, the Court supported Bell’s position. That decision has been debated and often criticized by legal scholars and historians for well over a hundred years. However, in November, 2020, a Marquette University retired physics professor, Benjamin Lathrop Brown, published an article in an electrical engineering journal which concluded that Bell had indeed come up with the essential idea behind the telephone before Elisha Gray. Brown’s conclusion is based on a careful re-reading of affidavits presented in court but also relies on newly discovered correspondence by Bell, Gray, and their family members and colleagues. Based on these findings, Bell does appear to be the rightful patent holder, thus entitled to the benefits derived from his discovery, as was intended by the founders who crafted the intellectual property clause in the Constitution.

James C. Clinger is an emeritus professor in the Department of Political Science and Sociology at Murray State. For many years, he was the director of the Master of Public Administration Program at Murray State. He now serves as an on-line adjunct instructor for any university willing to hire him and as a substitute teacher for the Henry County (Tennessee) School System.

Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox.

Click here for the essay schedule with today’s essay and previously published essays hyperlinked.

PRINT ARTICLE