An Examination of the Intended Purpose of The Progress Clause

Colleen J. BurnhamLegal and Ethical Dimension of Technology (CT554)Thomas CollegeMarch 2005

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Disclaimer(s):

•This turned out to be a huge topic!

•TEN (?!) minutes or less…????

•I kept getting completely sidetracked with other as interesting sub-topics

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This guy represents my only previous connection to Thomas (& a quick “mum-brag”): Geof Burnham, Hurler 1997-2002

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Okay… time to get to the topic…

What were the original intentions of the members of the Continental Congress (c. 1785-1787)

Thomas Jefferson ~ democrat

James Madison ~ republican

Alexander Hamilton ~ federalist

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Jefferson the Democrat…

Confederation: collection of state governments that would elect its own representation to the federal congress

State’s right to autonomy toward maintaining liberty and freedom for their respective constituents

State’s responsibility to manage its constituents finances

Individual’s right to be governed by leader of a similar whence

National defense should be the only concern of the federal government

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James Madison the Republican…

Guardian of Morality Humanist by schooling Belief in the good in man Paradox:

The egotistical man cannot be trusted to work toward the larger greater good by himself

Man is able – through his own self-interest – to elect representatives who will work for the greater good

Protector of the individual’s right to participatory government.

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Alexander Hamilton as the Federalist…

The individual is not capable of making informed and objective decisions with regard to his own governance

Wanted one federal congress which would write law for the nation

Advocated a president who was appointed by the congress to a lifetime term

Responsible for the Federalist Papers

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It’s worth noting that each of the three was occasionally referred to as a federalist, because…

Aristotle says…

…democracy is for and by the people… [and] …should be by those people with enough time on their hands to pursue virtue…

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Additional “issues” on their minds…

New scientific discovery… Increased worth of the common individual…

Inflation… Need for the protection of financial interest

(individual and governmental)…Need for the protection of the new Constitution,

itself…

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Legal responsibility to protect intellectual property in the form of tangible creations (books, inventions, property)

What were the framers’ perceived responsibilities to the project of re-writing the Articles of Confederation…

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Moral responsibility to protect the members of the society

What were the framers’ perceived responsibilities to the project of re-writing the Articles of Confederation…

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Ethical responsibility to be clear about the difference when putting it all “to paper”

What were the framers’ perceived responsibilities to the project of re-writing the Articles of Confederation…

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The accidental loop…

The Articles of the ConfederationAgreed to by Congress 15 November 1777 in force after ratification by Maryland, 1 March 1781

State and Individual autonomy might equal Treason…

The original Articles of Confederation had effectively caused the freedom of speech to be an act of treason against the Federal Government, while at the same time, the right to question the process by which they were being governed was assured to the individual states. The members of the Second Continental Congress found themselves in the position of rewriting a Constitution which legally defined each of them, as leaders of their respective states, treasonous –

simply by virtue of the act of rewriting.

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One Reaction…

Article I: Section 8: Clause 8 in the Constitution states the constitutional responsibility:

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;

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Further Reaction…The First Amendment to the Bill of Rights:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Ninth Amendment to the Bill of Rights:The enumeration in the Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people.

The Tenth Amendment to the Bill of Rights:The powers not delegated to the United States by the Constitution, nor prohibited

by it to the States, are reserved to the States respectively, or to the people.

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We can hear each of our three delegates in each of these amendments…

The First Amendment to the Bill of Rights:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise

thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Mr. Madison wanted to be sure to retain all rights and liberties to the individual to question his government and its processes.

The Ninth Amendment to the Bill of Rights:The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others

retained by the people.Mr. Hamilton was concerned that simply because an issue wasn’t addressed by the Constitution, future

interpreters would misread the collective intention of the delegates.

The Tenth Amendment to the Bill of Rights:The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are

reserved to the States respectively, or to the people.Mr. Jefferson, as always, avidly protected the right to the States to write their own law.

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The intended translation…

Article I. Section 8. Clause 8:

the scientists and thinkers were to be protected with regard to financial outlay and gain for an as yet to be determined and specified amount of time

Eventually the protected information would become available to other thinkers and scientists.

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The First Amendment…

Thank you Mr. Madison:

Allows political and religious discourse without any legal implication of treason.

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The Ninth & Tenth Amendments were intended as “how-to” statements…

The 9th: thank you Mr. Hamilton: “just because we didn’t address it in the body of the Constitution, don’t assume that is not an issue worthy of address.”

The 10th: thank you Mr. Jefferson: “If it’s not in the Constitution, it’s up to the States to write law about it.”

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Is this a Progress Clause?

Article I: Section 8: Clause 8 in the Constitution states the constitutional responsibility:

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 First Amendment of the Bill of Rights adds weight to the presumed right:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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We want to believe that these excerpts tell us that:

•There is a constitutional responsibility to allow us to gather information

•We have the constitutional right to collect knowledge

…but was that the original intent of the framers when they penned the Constitution and the Bill of Rights…?

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Article I. Section 8. Clause 8…

No guarantee of a right to “do Science” Responsibility of the federal government

to help you out financially (if you need it), and to protect any financial gain as a result

of having created something

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The First Amendment…?

No guarantee to a right to publish or gather information

Protection from being accidentally accused of treason while in the process of questioning another (specifically, the government)

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Any implication via a combination of the two statements…?

No….

The members of the Second Continental Congress, the writers of the United States Constitution and its Bill of Rights, intended no constitutional responsibility or right to be or to become informed.

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What if the internet had been around in 1785…?

It’s easy to imagine:

Mr. Jefferson corresponding via email

Mr. Hamilton participating in data-mining

Mr. Madison blogging

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Would they have tried to regulate it…?

probably…

But one has to suspect that those political philosophies would generalize “up” to the global level:

Jefferson might endorse an equivalent to the W3

Hamilton most likely would advocate a large, global governing body

And our Mr. Madison would continue to defend the right of the individual to contribute to his “society” in the form of participation

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Would they eventually come to feel compelled to write an actual Progress Clause…?

Recognize the individual contributor’s vulnerability to the accusation of treason

Amendment similar to the current First Amendment

Recognize the value of the bulk and variety of the information available

The creation of an Article similar to Article I. Section 8. Clause 8 toward granting us the right to access as well as a Constitutional responsibility to allow that access.

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Finally…(a.k.a. my conclusion…)

The intention of the framers was not to guarantee any right or responsibility regarding information gathering and dissemination; there really is no such thing as a Progress Clause written into our Constitution.

If those same men were here today (or could have anticipated something like the ‘net’) it is very likely that they would feel compelled to created an actual Progress Clause in order to protect the individual’s right and responsibility to inform and to be informed.

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Thank you…

To read the complete paper, go to: http://www.colby.edu/personal/c/cjburnha/CT554FinalPaper.pdf