Since this article talks about the constitution, I wanted to quote the preamble to the bill of rights. Since this set of amendments was enacted, as part of the deal to get the constitution passed, it is illustrative of the perspective of right at the time of adoption of the constitution.
"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution"
In other words, the Bill of Rights was enacted "in order to prevent misconstruction or abuse of its powers". This is referring to the limited powers granted to the government in the constitution. Notice, the preamble doesn't say "in order to grant rights...". The bill of rights contains "further declaratory and restrictive clauses".
Thus, these clauses are not designed to create or grant rights, but are of a "declaratory and restrictive" nature.
The constitution does not create any rights. There is no such thing, in the american form of government, as "constitutional rights". People often use this phrase when referring to the Bill of Rights, but it is imprecise, because the Bill of Rights doesn't grant rights. IT doesn't say "the people shall have the right of free speech", instead it says "Congress shall make no law ... abridging the freedom of speech, or of the press;"
The right of free speech, as recognized by the First Amendment, precedes and predates the constitution.
The constitution is a document constructed under a theory of natural rights, by a group of men, many of whom had just fought off a government they considered oppressive because it didn't recognize their natural rights.
Every right, IP, or not, precedes the constitution, they are not granted by the constitution.
Thus, where the constitution says:
"The Congress shall have Power ... 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 use of the word "securing" is deliberate.
I'm not going to debate whether intellectual property is a natural right or not. (But I wonder, if you come up with an invention but don't tell anybody, isn't that a natural property right? I mean, to say that you don't' have a right to it, would be to say that others have the right to forcibly take it from you, wouldn't it?)
My point is simply that the constitution doesn't grant any rights, rights precede it. The constitution gives the federal government limited and enumerated powers. And the federal government does not have the power to pass SOPA, both because there is no enumerated power to do what it does, and because the first amendment forbids it.
The question of whether IP is a natural right is a separate one, and opposition to soap on constitutional grounds does not imply conceding it, or not.
As a community of thoughtful 21st-century people, I suggest we reject entirely the idea of "natural rights" and treat it as an archaism.
Natural laws exist; regardless of anything you, I, or the government does, gravity continues to exist as a physical, observable force. Natural rights do not work the same way; they are inherently and in principle unobservable both directly and indirectly. The only thing that is real are the rights that we have in practice (e.g. as a function of law, economics, culture) and the rights that we ought to have, based on testable theories of how these rights lead to human flourishing.
I say this not to demean rights or to say rights or liberty are unimportant. (Similarly, if I say evolution rather than direct divine intervention created humans, that does not demean humans.)
The reason I make this claim is because "natural rights" is a complex concept that many people struggle to understand. But most of that struggle comes from it being an unsustainable idea as well as a dead end: it discourages serious consideration of how we should best organize our society. Religiously-inspired philosophers (John Locke, in this case) spent much time on ideas like this; certainly some people inspired by these ideas did some good things. But I think in our modern era we should set these ideas and other bad philosophy aside and work from better foundations.
Not only will this lead to stronger, more useful thinking generally, but it will also lead to more secular, persuasive dialogue with our legislators in the short term. They are bound in various ways by the Constitution, but they are not bound by the theory of natural or inalienable rights, which is not actually part of that document (see http://en.wikipedia.org/wiki/Declarationism).
Better foundations? You mean utilitarianism? That's a dead end too.
As a monkey-troup-descended race, we operate on some pretty common and predictable impulses. To manage those impulses we establish some premises and call them rights. Right to life, liberty etc.
Call them something else than 'natural rights' if you must, but its folly to ignore their existance.
Better foundations? You mean utilitarianism? That's a dead end too.
Currently, utilitarianism does seem to have problems, but not every framework for measuring or improving social well-being will necessarily share the problems of utilitarianism. One promising approach: http://en.wikipedia.org/wiki/Capability_approach.
...we operate on some pretty common and predictable impulses. To manage those impulses we establish some premises and call them rights. Right to life, liberty etc.
If I understand you correctly, you are saying that rights are something separate from natural impulses; they are things that we use appropriately manage (or channel) those impulses. I basically agree. But: "manage" must mean some goal that is separate from the impulses themselves, and when we establish rights that we think will appropriately direct impulses towards some goal, those rights--whether inspired by science or theology--cannot be considered natural. They are human guesses, subject to scrutiny, discussion, and improvement--to call them natural is untrue and confusing.
(But I wonder, if you come up with an invention but don't tell anybody, isn't that a natural property right? I mean, to say that you don't' have a right to it, would be to say that others have the right to forcibly take it from you, wouldn't it?)
Irrelevant. If you haven't told anybody, they have to violate your rights to your property (stealing the plans of the invention) or to your liberty (coercing you in some way to tell them your plans) to obtain your invention.
The whole point of copyright and patents¹ is not to protect your right to the invention, but to give you the right to prevent others from using their legally obtained copies of your invention as they see fit.
Yes. In the absence of copyright/patent/trademark, everyone can use every bit of knowledge they come across.
The "natural right" is the right to use information. Copyrights, patents, and trademark are constitutional limitations of this natural right, hoping to encourage more creation and sharing of knowledge to increase the total amount available to all.
Trademarks don't really affect that, that's why I don't like the term IP. Trademarks simply say you can't present yourself as others, not that you can't use any kind of information.
Your argument is an echo of a similar one made during the debates over the Bill of Rights. While there was general agreement that the government should be limited to enumerated powers, there was a lot of debate over whether there should also be enumerated rights. Those in favor argued that the enumerated powers would tend to expand and intrude on core liberties unless those fundamental rights were also made explicit. Those against generally argued that including the rights would send the wrong message, and that we would eventually be limited to only those rights. The latter argument lost and here we are.
So what about IP? Well, as you say, we ought to recognize fundamental rights even if they aren't in the Constitution. But it's fairly clear that the founders didn't find copyrights or patents to be fundamental, since they failed to include them in the Bill of Rights but instead explicitly included them in the enumeration of powers. And the term 'intellectual property' wasn't coined until long after the Constitution was written. Copyrights and patents weren't a separate form of property in the law, they were monopolies granted by the state in order to promote manufacturing and distribution, which were at that time very capital intensive.
Regarding your example:
[T]o say that you don't' have a right to it, would be to say that others have the right to forcibly take it from you, wouldn't it?
No, as you noted earlier the Constitution concerns what the government can do to you. It is silent as to what your fellow citizens can do. The 'forcible' part of your hypothetical is already covered by other parts of the Bill of Rights (the Fourth, for instance). So I'd rephrase your statement of the question:
"To say that you don't have an exclusive right to the invention would be to say that the government could copy it and make use of it without your permission, wouldn't it?"
That's closer to the issue we're debating. And in fact, the Government has exactly that power today. But that doesn't settle the issue, because it has the same power over real property. And in both cases, the owner does receive compensation. Why compensate someone for something they're not in some way entitled to?
History is not going to give us the answer as to whether IP is a right. It's going be decided as a matter of modern politics, not historical precedent.
I believe you are suggesting that like Freedom of Speech, the "right" to control a Writing or Discovery exists without the constitution. Your evidence is the use of the word "securing", to suggest that the Founders also believed that right existed already.
However, I assert that in fact we all have Rights to everyone's Writings and Discoveries as soon as they are shared. Therefore, I read the constitution as saying:
"We all have rights to Writings and Discoveries, but to promote the progress of science and useful arts, we will limit these rights exclusively to the authors and inventors for a limited time."
If, as you suggest, the Founders had believed that the right of an Author to his or her Writings existed and was natural, then in order to allow a Writing to join the public domain they would have had to have said:
"To secure the common good, we shall limit an Authors and Inventors Natural Right to their Writings and Discoveries to a period of time, after which they shall belong to the commons."
The Founders clearly did not believe that Authors had such natural rights.
> The right of free speech, as recognized by the First Amendment, precedes and predates the constitution.
This is the exact interpretation of such rights that one arrives at under John Locke's view of the state of nature which he argued preceded society (and thus government of any kind). One of the big takeaways from his Second Treatise which was incredibly influential to many of the "founding fathers" (I feel like selling out when I say that, but hey, it's succinct. unlike this now-meta parenthetical)
... and somehow I just remembered that random bit from a summer course at Cornell I took during high school, but if you asked me what I learned in GOVT5 my junior year of college, I honestly couldn't tell you anything other than that boris yeltsin died on new years eve, 1999. And that the freshmen were too young to already know that Czechoslovakia was not a god damned soviet republic.
Boris Yeltsin didn't die on new year eve 1999, he died in April 2007. Yeltsin resigned on new year eve 1999, effectively relinquishing the power to Putin.
"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution"
In other words, the Bill of Rights was enacted "in order to prevent misconstruction or abuse of its powers". This is referring to the limited powers granted to the government in the constitution. Notice, the preamble doesn't say "in order to grant rights...". The bill of rights contains "further declaratory and restrictive clauses".
Thus, these clauses are not designed to create or grant rights, but are of a "declaratory and restrictive" nature.
The constitution does not create any rights. There is no such thing, in the american form of government, as "constitutional rights". People often use this phrase when referring to the Bill of Rights, but it is imprecise, because the Bill of Rights doesn't grant rights. IT doesn't say "the people shall have the right of free speech", instead it says "Congress shall make no law ... abridging the freedom of speech, or of the press;"
The right of free speech, as recognized by the First Amendment, precedes and predates the constitution.
The constitution is a document constructed under a theory of natural rights, by a group of men, many of whom had just fought off a government they considered oppressive because it didn't recognize their natural rights.
Every right, IP, or not, precedes the constitution, they are not granted by the constitution.
Thus, where the constitution says: "The Congress shall have Power ... 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 use of the word "securing" is deliberate.
I'm not going to debate whether intellectual property is a natural right or not. (But I wonder, if you come up with an invention but don't tell anybody, isn't that a natural property right? I mean, to say that you don't' have a right to it, would be to say that others have the right to forcibly take it from you, wouldn't it?)
My point is simply that the constitution doesn't grant any rights, rights precede it. The constitution gives the federal government limited and enumerated powers. And the federal government does not have the power to pass SOPA, both because there is no enumerated power to do what it does, and because the first amendment forbids it.
The question of whether IP is a natural right is a separate one, and opposition to soap on constitutional grounds does not imply conceding it, or not.