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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.




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