This paper is part of a series of papers exploring the constitutional foundations of intellectual property. 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.”
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Jan 1, 2016
A V Veretennikov 
Open Access
