FSF Logo Banner
Perspectives from FSF Scholars           January 12, 2015

  



Adding Fuel to the Fire of Genius: Abraham Lincoln, Free Labor, and the Logic of Intellectual Property

 

by

 

Randolph J. May * and Seth L. Cooper **

 

[Below is the Introduction to this latest Free State Foundation Perspectives in our series of papers on foundational Intellectual Property principles. Links to the first nine papers in the IP series are at the bottom of this message. A PDF version of the complete Perspectives is here.]

 

Introduction

 

At Gettysburg, President Abraham Lincoln called for a "new birth of freedom." It was a call for both successful completion of the Civil War and for advancement of the propositions of liberty and equality set out in the Declaration of Independence. The significance and permanency of change to the nation's fundamental law formally achieved in the 1860s make it an essential reference point for any analysis of constitutional powers and rights. Accordingly, an analysis of the constitutional foundations of intellectual property rights likewise should be informed by the new birth of freedom.

 

The political and constitutional thought - and, of course, the actions - of Abraham Lincoln are central to understanding Civil War constitutionalism. Lincoln held to what has been termed a "two-track" view of the Constitution. One track involved "the written instrument of government adopted at the nation's Founding and intended to function as a supreme legal code." The other track consisted of "the principles, ideals, institutions, laws, and procedures tending toward the maintenance of republican liberty by which the American people agreed to order their political existence."

 

Applying this two-track framework to the subject of intellectual property yields important insights regarding the place of IP in our constitutional order. Antislavery thought concerning "free labor" offers a logical and compelling account for IP rights. The philosophical precept of "free labor" was placed in the context of an expanding and enterprising society. And it regarded hard work in useful vocations and social mobility as the means for obtaining economic independence.

 

Lincoln himself linked the concept of free labor to intellectual property rights. His thought concerning free labor was grounded in the Founders' understanding, and most particularly in the Declaration of Independence's affirmation of the natural right to life, liberty, and the pursuit of happiness. "[E]ach individual is naturally entitled to do as he pleases with himself and the fruit of his labor," Lincoln wrote in 1847. Or, as he put it, to the same effect, in a more colloquial Lincolnism: "I always thought the man that made the corn should eat the corn." 

 

During his single term in Congress in the 1840s, Lincoln applied for a patent for his invention of "a device to buoy vessels over shoals." Lincoln assisted constituents with their own patent applications. And he voted for legislation modestly amending administration of patent laws in 1848 and 1849, thereby evidencing solicitude for securing IP rights. Moreover, Lincoln the lawyer was involved in at least five patent cases between 1850 and 1860.

 

Lincoln made the case for IP protections most emphatically in public lectures and speeches he delivered between 1858 and 1860. He delivered his lecture on "Discoveries and Inventions" in essentially the same form a half-dozen times. In it, Lincoln juxtaposed Western Civilization's 15th Century achievements in writing and printing press technology with the regrettable rise of human slavery. He concluded his lecture by extolling patent laws that "added the fuel of interest to the fire of genius, in the discovery and production of new and useful things."

Further, in his "Address to the Wisconsin State Agricultural Society" (1859), Lincoln expressed regard "for the profitable and agreeable combination of labor with cultivated thought" that captures the essence of intellectual property.By securing a return to free laboring authors and inventors for their pursuit of ideas and discoveries, copyrights and patents stimulated the drive for further self-improvement and achievement of personal independence.

 

In Dred Scott v. Sanford (1857), Chief Justice Roger Taney insisted "the right of property in a slave is distinctly and expressly affirmed in the Constitution." Through several speeches, Lincoln criticized Chief Justice Taney's opinion. Other Republican and antislavery proponents pointed to the lack of any expression of the words "slave" or "slavery" or the term "property in men" in the Constitution. They cited writings from the framers of the Constitution of 1787 for the proposition that the word "slavery" was kept out of the Constitution's text in order to avoid conferring legitimacy on the institution. 

 

The Lockean concept that the core of property consists of self-ownership and the closely-related free labor concept that a person has a natural right to the fruits of his or her own labor - both of which are reflected in the Declaration of Independence - formed the principled basis for concluding, as Lincoln and other antislavery thinkers did, that slavery is wrong. Protecting intellectual property rights fit squarely within this idea of self-ownership, as an author or inventor owned the productions of his or her mental labors and the returns those labors generated. The prevailing understanding during Lincoln's day, as it had been at the time of the Founding and the Constitution's ratification, was that copyrights and patents were the property of authors and inventors.

 

Antislavery thinkers countered the idea of property in men with a policy that came to be known as "Freedom National" - the position that a person's inalienable right to liberty was the prevailing or default position and that slavery existed only where the blackletter law of a state expressly provided for it. Military matters dominated political and administrative business during Civil War years that followed. However, the influence of the "Freedom National" policy had at least one important impact on IP rights during the Lincoln Administration.

 

In 1857, future Confederate President Jefferson Davis was summarily denied a patent for a riverboat propeller invention that was the idea of a slave on the plantation of his brother Joseph. Consistent with the Dred Scott decision, the U.S. Patent Office denied the patent on account of the fact that the slave inventor was not a "citizen" of the United States and therefore not legally competent to obtain a patent. Likewise, the slaveowners were not the genuine inventors so they were ruled ineligible.

 

In 1861, Senator Charles Sumner learned a patent application by a free black inventor had been denied based on the Dred Scott decision. Sumner introduced and the Senate approved by unanimous consent a resolution directing the Patent Office to consider if further legislation was "necessary to secure to persons of African descent, in our own country, the right to take out patents for useful inventions, under the Constitution." Attorney General Edward Bates's Opinion on Citizenship (1862), determining that free persons of color born in the United States were citizens, ultimately settled that free blacks would be issued copyrights and patents according to the terms of the applicable federal laws.

 

During Reconstruction, Congress had occasion to pass legislation that made minor adjustments to patent and copyright laws, including the Appropriations Act of 1868 and Copyright Acts of 1867 and 1868. Congress also passed and President Ulysses S. Grant signed the Copyright and Patent Acts of 1870. The Copyright Act transferred registration functions from federal district courts to the Library of Congress, centralizing and streamlining the process and thereby expanding the resources and resourcefulness of the Library. The Patent Act was a comprehensive measure gathering together the substance of preceding legislation and legal decisions. Among other things, it clearly established a first-to-file system for patent claims. Minor legislative amendments to the patent laws were also adopted in 1871 and 1874.

 

That pro-IP rights legislation was adopted contemporaneously with the Reconstruction Amendments gives rise to the inference that the IP rights were consistent with the antislavery principles and views of property vindicated by the Civil War and that influenced the framing of those amendments - namely, that property is rooted in a natural right of liberty and self-ownership, and that all persons are equally entitled to the fruits of his or her own labors, protected by the rule of law.

 

It does not appear that Reconstruction Amendments to the Constitution impose any express limitation on the scope of copyright or patent protections under the IP Clause. The clause's grant of power to Congress "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries" leaves little role for states. However, to the extent any state laws offer supplemental or tangential protections to authors or inventors, the 14th amendment's Equal Protection Clause at least requires that any such protections be extended to all state citizens on an equal basis. Similarly, any rights of authors or inventors recognized under state law would be protected by the 14th Amendment's due process clause.

In sum, an examination of intellectual property in light of free labor thought, political action tied to the Civil War, and the Reconstruction Amendments, bolsters the logical case for protection of IP rights and for recognition of IP's connection to the underlying principles of the American constitutional order.

 

* Randolph J. May is President of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland.

** Seth L. Cooper is a Senior Fellow of the Free State Foundation.

 

A PDF of the complete Perspectives is here.

 

* * *

 

Earlier Papers in this Series of Intellectual Property Perspectives

 

Randolph J. May and Seth L. Cooper, "The Constitutional Foundations of Intellectual Property,"Perspectives from FSF Scholars, Vol. 8, No. 13 (2013).

Randolph J. May and Seth L. Cooper, "Reasserting the Property Rights Source of IP," Perspectives from FSF Scholars, Vol. 8, No. 17 (2013).

 

Randolph J. May and Seth L. Cooper, "Literary Property: Copyright's Constitutional History and Its Meaning for Today,"Perspectives from FSF Scholars, Vol. 8, No. 19 (2013).

Randolph J. May and Seth L. Cooper, "The Constitution's Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property Rights," Perspectives from FSF Scholars, Vol. 8, No. 20 (2013).

Randolph J. May and Seth L. Cooper, "The 'Reason and Nature' of Intellectual Property: Copyright and Patent in The Federalist Papers," Perspectives from FSF Scholars, Vol. 9, No. 4 (2014).

Randolph J. May and Seth L. Cooper, "Constitutional Foundations of Copyright and Patent in the First Congress," Perspectives from FSF Scholars, Vol. 9, No. 18 (2014).

Randolph J. May and Seth L. Cooper, "Life, Liberty, and the Protection of Intellectual Property: Understanding IP in Light of Jeffersonian Principles," Perspectives from FSF Scholars, Vol. 9, No. 25 (2014).

Randolph J. May and Seth L. Cooper, "Intellectual Property Rights Under the Constitution's Rule of Law," Perspectives from FSF Scholars, Vol. 9, No. 31 (2014).

Randolph J. May and Seth L. Cooper, "Reaffirming the Foundation if IP Rights: Copyright and Patent in the Antebellum Era," Perspectives from FSF Scholars, Vol. 9, No. 38 (2014). 

 

     

Follow us on Twitter 

Find us on Facebook

 

View our videos on YouTube 

  

The FSF Blog

 

Please consider supporting the Free State Foundation's free market work with a tax-deductible contribution!

  

Donate   


Sign Up for FSF EMails

Join Our Mailing List

The Free State Foundation
P. O. Box 60680
Potomac, MD 20859
Tel: 301-984-8253
Fax: 301-299-5007

www.freestatefoundation.org

 
 
Donate 
 
A Free Market Think Tank for Maryland......Because Ideas Matters
 and FSF are registered trademarks of the Free State Foundation. All trademark and copyright rights are reserved.