[MegaButts]

> The Constitution requires that Congress setup laws for both copyright and patent

No it doesn't, it grants them the power but it doesn't specify they have to do it.

“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….”

There is a big difference between having a power and being forced to use it.

[freejazz]

I don't think that's a great reading of congress' enumerated powers. The shall refers to the powers being powers that can be used when appropriate, to achieve the intended goal of the power. Must language, here, would imply a constant duty to use each power.

My reading is that Congress has an OBLIGATION to promote the arts and sciences, and has the power to use copyright and patent law to achieve those goals as congress sees fit.

[ghayes]

By your very logic, does that mean the second enumerated power "2. To borrow money on the credit of the United States;" means that we are also obligated to be in debt? Would it be unconstitutional to pay down the debt of the nation?

Additionally, even if Congress had an obligation to grant intellectual property rights, couldn't they simply grant patents for a term of 24 hours? or 15 seconds?

From what I've read (c.f. Clinton v. City of New York 1998), Congress can decline to use a power, but it cannot grant that power to another branch of government.

[MegaButts]

IANAL, but the fact that it says nothing about an obligation (I don't even believe it's implied, but I'm not a historical legal scholar) leads me to believe you're inserting your own bias.

[freejazz]

One thought would be, if there was no duty implied in the specific enumeration of this power and it's implied goal, then why wouldn't it just be part of the necessary and proper clause?

[MegaButts]

I think a much more obvious question is why wouldn't they just write down what they meant instead of obfuscating their intentions?

You are literally looking for something that isn't there, because it is not written down.

I would love for a lawyer to chime in, because admittedly this is not my wheelhouse.

[freejazz]

If you think that you probably shouldn't deal with a lot of statutes. For what it's worth, despite your contentions, I don't at all believe it is confusing. But I'm a litigator and I went to law school.

[anotherman554]

If you think the necessary and proper clause can be read to authorize patents, you probably have a very different idea of how to interpret the constitution than the drafters of the constitution.

[freejazz]

That's not what I wrote!

[npsomaratna]

Agree with this. In administrative law (the principles of which apply here) certain words have technical interpretations that are very different from the colloquial meaning. "Shall" is one of those words - and I too would interpret this as an obligation.

[kelnos]

But it doesn't say that "Congress shall promote the progress..." it says "Congress shall have the power to promote the progress..."

If the framers wanted to require that Congress do this stuff, why insert "have the power to" unnecessarily? There's no need for that phrase.

As another point against this being an obligation, if you look at the list of enumerated powers[0], you'll see some that are clearly not obligations. Congress doesn't have to borrow money. They don't have to maintain a navy. They didn't have to establish post offices. They didn't have to create a federal court system. (Granted, it makes a lot of sense for them to do many of these things, but it feels wrong to think that they're required to.)

[0] https://en.wikipedia.org/wiki/Article_One_of_the_United_Stat...

[npsomaratna]

This area of law is very tricky. As I've stated above, the technical (i.e., legal) interpretation can be quite different from how a layperson would understand the same words.

The basic idea here is that an authority (e.g., Congress) that has been given a specific power (e.g., declaring war) is obligated to exercise that power where appropriate.

Do note the specific phrasing above: if there is a situation in which exercising that power is the appropriate course of action, then that power must be exercised. The authority cannot choose not to exercise the power in such a situation.

So, Congress doesn't have to declare war for the sake of declaring war. However, if there is an existential military threat to the USA (e.g., aggression by the Japanese Empire in WW2) you could argue that Congress is obligated to declare war, as this would be an appropriate situation to exercise that power.

Of course, the above explanation is very simplistic. There can be specific wordings that clarify how much discretion that authority has; there may be case law pertinent to that area; and whether a given situation mandates "appropriate" exercise of a given power is never a black-and-white decision.

[kelnos]

That cuts both ways, though. It would be pretty easy to argue that it is not the "appropriate course of action" to implement the copyright or patent system in the way we have, and that, indeed, the "appropriate course of action" is to have minimal -- or even no -- protections.

[freejazz]

You get it

[AnthonyMouse]

Don't forget "To declare War" -- seems pretty unreasonable to read that as an intention to prohibit peace.

[freejazz]

That's not the reading I'm arguing for. The reading I'm arguing for is that it requires Congress to declare war when it is appropriate for Congress to do so