To establish Post Offices and post Roads;

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;

Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Article 1, Section 8, Clause 7-8

7:  To establish Post Offices and post Roads;

8:  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;

Clauses 7 and 8 of Article 1, section 8 demonstrate both the interest the Founders had in facilitating economic growth and prosperity, and the belief they shared that such power had to be made explicit in the Constitution.  The would not have been satisfied to hold, as we now do, that Congress’s regulatory power is presumed unless constrained by a specific provision.  Such a open-ended power would become tyrannical, they thought.

At the same time, they weren’t opposed to governmental intervention if appropriate to serve the general welfare.  The federal legislative power in particular could counterbalance provincialism in the states.  Having just been through the disaster that was the state of things under the Articles of Confederation, many Framers understood that greater federal power was necessary.

The debate was over how much would be too much power.

The “Post offices and post roads”in clause 7 sound quaint, but in fact were an enormously important piece of infrastructure.  Post roads were some of the first roadways built, and many former post roads remain today in our communities, whether we recognize them as such or not.  But whenever the government provides such infrastructure, there is also the danger of waste, fraud, and corruption between the members with control over the funding, and their constituencies.  Thomas Jefferson, for one, thought the power would prove “a source of boundless patronage in the Executive.” and “a bottomless abyss of public money.”

Jefferson wasn’t entirely incorrect.  Postmasters have been patronage appointments.  The location and accessibility of post offices is a critical constituent issue, and employment in the Post Office is valued as a safe, reliable and well-compensated career.  For shrinking communities, the potential they might lose “their” post office is a cruel final blow to civic pride.  The Post Office monopoly on “mail” delivery has eroded as the private package delivery industry – and email – have taken over tasks once done by the post office.  But these private communications are heavily dependent on a physical infrastructure that was build by government.  Had it been left to local communities and individuals, no doubt road would have been built, but with “local” priorities in mind, not national ones, with consequences for the nation’s westward expansion and domestic cohesion.

Clause 8 provides Congress with the power to legislate in the areas of patents and copyrights.  The founders believed the protection of intellectual property was important to the growth and prosperity of the nation.  Also, the author’s “copy right” was a right in English common law and was respected by the colonial America; and Parliament protected an investor’s right to his invention for 14 years.  Alexander Hamilton even advocated funding the emigration of “Artists and Manufacturers in particular branches of extraordinary importance.”  The Founders appreciated the good incentives these rights would create, by giving people with successful and popular ideas the ability to profit from them for a time.

The world of patents today is struggling with some extreme applications of these principles.  Because a person can “patent” an invention without actually bringing the invention into existence, subsequent inventors who do make commercially beneficial use of an idea can be compelled to “lease” the unused patent, or pay damages for infringement.  Rather than encourage industry and the useful arts, such patent litigation adds costs to the commercially active innovator, which are ultimately passed along to consumers.

Allison Hayward graduated from Stanford University with degrees in political science and economics, and received her law degree from the University of California, Davis.  She clerked for Judge Danny J. Boggs of the United States Court of Appeals for the Sixth Circuit.  Hayward is Chairman of the Federalist Society’s Free Speech and Election Law Practice Group. She also serves on the Board of the Office of Congressional Ethics.  She is an active member of the California and Washington, D.C. bars, and she is a certified FINRA arbitrator.