Defining “Progress” in Article I, Section 8, Clause 8 of the United States Constitution, or
Introducing The Progress Clause
[FN 1]
Congress has power to pass only such time-limited copyright and patent statutes as increase the dissemination of knowledge and technology to the public. Congress' modern focus on providing maximum control and economic benefit to copyright holders is constitutionally illegitimate. The Court, therefore, should hold the Copyright Term Extension Act to be unconstitutional when it decides Eldred v. Ashcroft next term. The same fate should await the anticumvention provisions of the Digital Millennium Copyright Act. Article I, section 8, clause 8 is most properly referred to as the “Progress Clause.”
The Congress shall have the power . . . To Promote the Progress of Science and the useful Arts by securing for limited times to Authors and Inventors the exclusive right to their respective writings and discoveries.
U.S. Const. Art. I, Sec. 8, Cl. 8
(“Progress Clause,” formerly “Copyright and Patent Clause,” “Intellectual Property Clause,” or “Exclusive Rights Clause”)
Progress Is Our Most Important Product
Ronald Regan, for General Electric [FN 3]
I. Introduction: Why Define “Progress”?
A. The Stakes in Positive Law
B. The Definitional Hole
C. How the Suggested Reading Fits The Constitutional Scheme
1. Originalism
2. An Evolving Constitution
II. Starting Points and Assumptions for Textual Analysis
III. Drafting and Ratification
IV. Testing Definitions in Context
V. Linguistic Evidence
A. Dictionaries
B. The Pennsylvania Gazette
C. Idea of Progress Literature VI. Conclusion
I. Introduction: Why Define “Progress”?
A, The Stakes in Positive Law
I am fairly sure of what Article I, section 8, clause 8 means. I am hopeful, furthermore, that the core of my reading will be accepted by otherwise disparate interpreters of the Constitution: “progress” means “spread,” i.e. diffusion, distribution. [FN 4] To the extent that Congress chooses not to act under this clause, [FN 5] the default position is that each person in the United States has a property right not to be excluded from publicly accessible knowledge and technology. [FN 6] Congress has only a very limited power to create private quasi-property, i.e. rights to exclude the rest of the commoners. [FN 7] Congress may only create temporary individual rights for “authors” or “inventors” to exclude others from use of “their respective writings and discoveries” when such individual rights “promote” the spread of knowledge (“science”) and technology (“useful arts”).
I am much more certain that my suggested doctrine is not yet positive law. Following my analysis should reverse the pro-copyright holder decisions of Universal City Studios v. Corley [FN 8] and Eldred v. Ashcroft. [FN 9]
My research shows four possible 1780s meanings of “progress” in the Progress Clause: quality improvement in the knowledge base, quantity improvement in the knowledge base (numerically), quantity improvement in the knowledge base (judged economically), and spread (distribution to the population). [FN 10] Of these, quantity is the least supportable. [FN 11] Quality has low support and creates problems in context. [FN 12] Spread has the highest support. [FN 13]
The most charitable reading of Congress' post-1970 intellectual property enactments might be that Congress sees the “Copyright and Patent Industries” as the strongest part of the current United States economy [FN 14] and, therefore, assumes that giving these industries whatever they request is the best policy. This approach ignores the probability that current major stakeholders are merely trying to protect and enlarge their own profit shares _ even when self- protection blocks “the progress of science and the useful arts,” in any meaning of the phrase. [FN 15]
If Congress is actually considering the language of the Constitution, Congress appears to be operating on the naive theory that since some protection promotes writings and discoveries, more protection necessarily better promotes writings and discoveries. [FN 16] Even leaving aside major normative and baseline problems, one entity's exclusive rights block other creative people from producing related works and discoveries. [FN 17] Transaction costs [FN 18] and right-holders' biases [FN 19] increase these blocks.
Correcting the reading of the Progress Clause by recognizing that “progress” involves dissemination, as opposed to qualitative improvement of the knowledge base, has important results. Using the proper original reading should result in judicial trimming of congressional over-protection. For the argument in this section, I will assume mere rational basis review. The review standard should be higher because (i) Congress has never bothered to take the limits in the Clause seriously, (ii) Congress is treading close to textual limits on its power, [FN 20] and (iii) copyright statues are limitations on speech. [FN 21] The review standard issue, however, will have to wait for another article. [FN 22]
Let us assume, just for the current argument, that Congress asserts that it has a rational basis [FN 23] for believing that e.g. making digital circumvention and circumvention technology illegal [FN 24] will affect the supply of new writings and discoveries at the margin. Let us also assume, arguendo, that the only relevant arguments pertain to the purpose section of the Progress Clause. Somewhere some writers would not compose and release new works if they cannot prevent persistent computer wizards from bypassing technological envelopes. They will write and publish the works if they are assured protection from computer wizards. Let us dub this set of writers “Digital Control Driven.” Some other writers, of course, would be blocked from composition by a ban on technological circumvention and circumvention devices. They will be unable to get permission to incorporate indispensable bits of pre-existing works into their creations and will be unable to act on the assumption that the uses are fair [FN 25] because they are unable to bypass the technological envelopes guarding the older works. [FN 26] Let us dub this set of writers “Public Domain Driven.”
Congress bases the ban on circumvention and circumvention technology on alternate theories. First, if this protection is granted, the Digital Control Driven are likely to produce more writings than the Public Domain Driven will fail to produce. [FN 27] Second, the writings produced by the Digital Control Driven are likely to improve human understanding more than would the writings produced by the Public Domain Driven. Similar arguments could be made regarding extensions of the term or scope of either copyright or patent.
As long as “progress” refers to the Idea of Progress, the constitutional issue involves the value or quantity of the works produced _ largely regardless of their availability or cost to users. Of course, “The Idea of Progress” and “spread” are not a dichotomy; they are opposite poles on a continuum. “Spread” requires works to share. “Quality works” are useless without some users; the users, however, may be limited to a small elite section of the populace who work on the cutting-edge of knowledge. [FN 28] Nevertheless, if the core meaning of “progress” is “quality improvement of the knowledge base,” the courts are extremely unlikely to hold the legislation unconstitutional. To void the statute, a court would have to insist that Congress' theoretically informed guess on the Digital Control Driven/Public Domain Driven balance is irrational. Considering the complexity and diverse conclusions of the relevant literature, [FN 29] a court is unlikely to go this far. If “progress” means “spread,” a court is more likely to second guess Congress. Now, Congress is required to prioritize public access to works over the existence of works. The change in priorities forces Congress to show that the additional rights to exclude create sufficient new access [FN 30] to works to counter balance (a) the ability of right holders to restrict access to works whose copyrights have expired, (b) the ability of right holders to restrict fair uses of works covered by copyright, (c) the ability of right holders to restrict access to the uncopyrightable elements of copyrightable works, and (d) the ability of right holders to leverage technological protection into contracts limiting downstream distribution of works. [FN 31] Now Congress has a much higher evidentiary problem with showing a good faith belief in a “rational basis” for its legislative balance of the creation/dissemination balance. [FN 32] What about the Copyright Term Extension Act? [FN 33] The District of Columbia Circuit held the act constitutional because “to promote the progress of science and the useful arts” was not a substantive limit on Congress' power. [FN 34] The majority, however, went one unnecessary step further, and asserted in dicta that even if this language contained some limit, the necessary and proper clause allows Congress to promote progress by increasing the incentive for copyright holders to preserve old works, providing the sole example of movies in need of restoration. [FN 35] Does this demonstrate that reading “progress” as “spread” would make the CTEA harder to assail? I think the opposite. Eldred was decided on the vacuity of the purpose section of the Progress Clause. If a court thoughtfully considers “progress” (under any definition), the CTEA should be held unconstitutional in all its applications. The Eldred court merely invoked the alleged upside of the change without considering the downside_ an improper way to do any type of cost/benefit analysis.
My reading does destroy one argument against the retrospective section of the act _ the argument that extending existing copyrights cannot promote progress because this phrase requires each grant to be paid for with a new work. [FN 36] However, the same limitation can be reached by other textual argument. Let me explain.
The best arguments against the CTEA are not related to the word “progress.” First, looking at policy, the CTEA should fail rational basis scrutiny because it is a subsidy granted a small number of large corporations; copyright is merely a subterfuge used to deflect public scrutiny and outrage. Any such camouflaged wealth transfer should be suspect as corrupt [FN 37] _ not rationally related to any legitimate legislative purpose. Such a disguised subsidy to powerful political backers is even more unacceptable when tied to a copyright grant. The historical ancestor of the Progress Clause, the English Statute of Monopolies [FN 38] was the first step in Parliament's control of the royal purse strings. No Authors' Exclusive Right (AER) or Inventors' Exclusive Right (IER) [FN 39] may be used to bypass full public scrutiny of political payoffs. [FN 40]
Second, looking at the words of the Progress Clause, the CTEA's extension of existing copyrights breaches the barrier erected by the interaction of “writers,” “authors,” and “limited times.” The Supreme Court has already read the junction of “writers” and “authors” to require originality. [FN 41] The structure of the Progress Clause ties “limited times” tightly to author/writing and inventor/discovery. Therefore, in context, “limited times” should mean that any new term must be premised on additional contributions of “writings” from “authors” (or discoveries from inventors) _ new original material. Lengthening existing copyrights is unconstitutional, regardless of the meaning of “progress.”
Third, the words “limited times” by themselves require a definite term limit set at the beginning of protection. [FN 42] Like patent, copyright is strongly analogous to a contractual bargain. [FN 43] In return for public availability, the copyright holder is granted a set of rights to exclude. If Congress later grants additional rights, the copyright holder most provide new consideration. If Congress enlarges the copyright holder's power without requiring a quid pro quo, Congress is a dishonest agent. [FN 44]
Third, the CTEA only claims to promote “progress,” if “progress” means “economic value.” The CTEA's announced primary rationales are (i) to give copyright holders more of the financial value of works, and (ii) to help the United States' balance of payments by supporting a strong export industry. [FN 45] Neither of these goals conceivably promote “progress” if that word means either “quality improvement” or “spread.” At best, these goals might increase the economic value of “writings.” Any such increase, however, is created by statutorily distorting the market _ which clearly demonstrates that economic value and statutory grants are not independent. If “promoting progress” is a limitation on Congress, therefore, “economic value” is not a possible translation of “progress.” [FN 46]
Worse, the CTEA's implied assertion that it increases the economic value of works is an empirical claim made without supporting evidence. The large entities which lobbied for the CTEA obviously believed that the act would increase the economic value of certain copyrights to them. Congress made no apparent effort to determine if the shift of power lowered the total value of copyrights in general or of any specific copyright. The legislative history does not discuss the economic value of the non-licensed uses foreclosed by term extension. Cost/benefit analysis cannot be done by listing benefits and ignoring costs.
If “progress” means “quality improvement,” Congress could state that it believes the extra money which will be acquired by large copyright-holding corporations is likely to fund the highest quality works which will be created in next century. This assumption, however, is economically irrational. [FN 47] Furthermore, the legislative history of the CTEA does not demonstrate this as Congress' intent. If a court were to invoke this as Congress' rational basis for the CTEA, it should be faulted for using a contrived apologia to side-step judicial responsibility. Unfortunately, I doubt that the CTEA's opponents could prove the opposite _ that individually written works (which will not be created because of the CTEA) would have been of higher quality. How do you prove the quality of works that will not be created? Over-deference to Congress, therefore, might result in a court's upholding the CTEA.
If “progress” means increase in the number of works, the CTEA should fail _ but proof would be very hard to acquire. At the time an author is considering creation, or a publisher is considering initial publication, the additional twenty years (coming only twenty years after the author dies) is worth about zero. [FN 48] Humans, however, are not always good at, or interested in, making this type of cost/benefit prediction. [FN 49] Notoriously, few athletes make it rich; yet a disproportionate number of economically disadvantaged youths drop out of school with the intention of becoming basketball superstars. [FN 50] Certainly, the longer term would cut down availability of building blocks for new works, but holders of large copyright portfolios would still have enough stock to keep writing. I do not know of any evidence I could show the court that would prove the numerical balance favors a shorter term. Again, proving counterfactuals about likely creation is rather difficult. Again, judicial over-deference to Congress might result in the CTEA surviving.
If progress means “spread,” I cannot guarantee that the CTEA would fail, but its opponents would have more evidence to show a court. Extending the United States copyright term extends the term inside the United States both for domestic works and for works from other countries. [FN 51] By exploring government records, opponents should be able to develop some quantitative approximation of how many works of various types are being fenced out of competitive circulation for an additional twenty-years. [FN 52] This large number of works which may be denied to the entire population of the United States for an additional twenty-years should compute into an impressive quantity of lost access. Opponents would still have difficulty quantifying how many new works would be created under the different legal regimes, but now, they would have some very strong figures to show the court _ figures Congress seemingly made no effort to obtain. Since the supporters of the CTEA have better access to such statistics than its opponents, opponents might even convince the court to place a higher evidentiary burden on the government.
The progress by dissemination claim (that an additional term is necessary for preservation of old works) furthermore, seems facially unrealistic. [FN 53] Generally, by fifty years after the death of its author, a work's market potential has already been tested. An interested distributor would know which works were worth continued marketing. Risk would be almost completely eliminated. Common experience shows that works without copyright protection continue to be published _ Shakespeare, Milton, and the Bible are easy to find in book stores. [FN 54] If Congress considered crumbling old works to be important, furthermore, the CTEA is hardly a proportional response. The number of crumbling old works is presumably only a small subset of the old works granted the additional term. [FN 55] Preservation seems mere camouflage; Congress did not limit the liability of persons who restored old-works after a reasonable, but unsuccessful, search for the current copyright holder. A court should have enough hard evidence to overthrow the CTEA on the ground that no rational legislature could conclude that it increased public access to writings.
In sum, reading “progress” as “spread” increases the possibility of effective court over- sight of Congress' intellectual property legislation. [FN 56] This definition might also effect how the courts deal with Internet issues such as causes of action for trespass to websites, and attempts to require permission to set up hyperlinks. [FN 57] I do not, of course, claim that this change would require the Supreme Court to reign-in Congress.
B. The Definitional Hole
The Supreme Court has never purported to define the individual word “progress” in the Intellectual Property Clause, more properly the Progress Clause. [FN 58] So far, the Court has said that the entire progress limitation _ in conjunction with the requirement that the res protected be either the “writing” of an “author” or the “discovery” of an “inventor” _ relates to Congress' supposed inability to remove res from the public domain, [FN 59] the non-obviousness requirement to obtain a patent, [FN 60] and the minimal standard of originality in copyright. [FN 61] Additionally, the entire progress limitation has some relationship both to public availability of technology and writings, [FN 62] and to the uncopyrighabilty of facts. [FN 63]
Academic literature is also oddly reticent about the eighteenth century meaning of the word “progress.” I know of no article presenting a detailed explication. Most scholars seem to assume that “progress” in the Progress Clause relates to the well-known Enlightenment Idea of Progress: [FN 64] all is getting better in this, the best of all possible, worlds [FN 65] (smile when you say that, post-modern human). [FN 66] Accepting this premise, Robert Merges asserts that the Framers' unfounded optimism cannot support any meaningful limitations on Congressional power. [FN 67]
Oh, the power of rampant anachronism and assumption! I agree with some of the general assumptions about “progress.” The Idea of Progress had begun to flower by the late eighteenth century. [FN 68] This Idea of Progress was an axiomatic, background, cultural assumption in the United States by the mid-nineteenth century. [FN 69] But none of this evidences that the American- English word “progress” meant the same thing in 1789 that it meant in 1850 or means in 2001. This definitional reticence has practical consequences. Unless “progress” is an independently monitored, objectively measurable goal, Congress' discretion to transfer the public domain to private right- holders is effectively almost unbounded. The other textual fences in the Progress Clause have already been breached. “Limited times” has been statutorily stretched from fourteen years [FN 70] to seventy years after the death of the author. [FN 71] One court even approved Congress's purported creation of perpetual rights to prevent fixation of sound recordings without the performers' permission. [FN 72] An “author” is “"he to whom anything owes its origin; originator; maker; one who completes a work of science or literature." [FN 73] “Writings,” congruently, include “the literary productions of those authors . . . [including] all forms of writing, printing, engraving, etching, &c., by which the ideas in the mind of the author are given visible expression” [FN 74] limited only by a weak originality requirement. [FN 75] “Inventions” may include “anything under the sun that is made by man” [FN 76] including living entities [FN 77] and business methods, [FN 78] provided that any purported invention is not obvious to a person of ordinary skill in the relevant art. [FN 79]
True, the Supreme Court [FN 80] has repeatedly stated that Congress' power to create private intellectual property is limited by the “promot[ion] of the progress of science and the useful arts,” the recited purpose of Authors' Exclusive Rights (AERs) and Inventors' Exclusive Rights (IERs). [FN 81] The Court, however, has yet to void any Congressional largess on this basis. [FN 82] The Court has never even checked to see if Congress purposely or rationally reached the conclusion that some statutory scheme does, or is likely to, “promote progress.” [FN 83] The Court's invocations of “progress,” furthermore, are clearly dicta in all but two cases; [FN 84] even in these cases, most (or perhaps all) of the articulated limitation rests on other words in the Clause. [FN 85] These cases, furthermore, merely construe and enforce statutes. By the narrowest definition of “holding,” we have no Supreme Court holding on the meaning or enforceablity of the “progress” limitation in the Progress Clause.
The Progress Clause's limit should have real bite, because it should constrain the Commerce Clause by negative implication. [FN 86] Such an implied limit should exist because the Court has held that the “uniformity” limit in the Bankruptcy Clause cannot be bypassed by invocation of the Commerce Clause. [FN 87] The Progress Clause/Commerce Clause interaction is currently under attack by the anti-circumvention provisions of the Digital Millennium Copyright Act [FN 88] and proposed database protection statutes. [FN 89] Congress' increase of the copyright term is under attack as violative of the “limited times” provision. [FN 90] Another issue which seems over-ripe for litigation is the intersection between Constitutional/Congressional policy and state-based legal rights, including contractual expansion of AERs and IERs. [FN 91] In sum, the Court has yet to enforce the negative implication of the Progress Clause, [FN 92] but the pressure to do so is rising. [FN 93] To enforce this limit, the Court will need a definition of “progress.” This article posits “spread.”
C. How the Suggested Reading Fits The Constitutional Scheme
1. Originalism
No matter how good my empirical research, I would not expect anyone to accept my analysis if it was incongruent with basic principles held by the Federalists who drafted and ratified the Constitution. This section briefly demonstrates that my reading of the Progress Clause makes sense inside the Federalist belief structure. I am not, of course, claiming that mine is the only reading of the Progress Clause congruent with Federalist principles. A stronger claim is impossible. “Federalist principles” is an umbrella name, a short hand designation, for the differing, inconsistent, often incompletely analyzed beliefs held by a multitude of human beings who cooperated in supporting ratification of a political document.
First, according to Enlightenment Idea of Progress theorists, wide dissemination of information was a requirement for qualitative improvement of arts and sciences. Any subgroup of humans, any nation, might stagnate or regress. Mankind as a whole would “progress” because of the large number of individuals who would have the opportunity to add onto what earlier individuals had learned. [FN 94] Writing, therefore, was very important. Committing information to a lasting, mobile format allowed more people to share and build on earlier work. [FN 95] This, presumably, is why AERs are only allowable for “writings.” [FN 96]
Second, according to both Enlightenment Idea of Progress theorists and many of the Framers, relative equality of all humans was part of the perfect society. According to Condorcet, “Our hopes for the future condition of the human race can be subsumed under three important heads; the abolition of inequality between nations, the progress of equality within each nation, and the true perfection of mankind.” [FN 97] This true perfection includes universal education. [FN 98] “All men,” after all, “are created equal and endowed by their Creator with certain inalienable rights” including the “pursuit of happiness” [FN 99] which requires intelligent, educated choice. General public education was a common, central tenet. [FN 100] Even the Bill of Rights created institutions for teaching governance skills to the general public. [FN 101]
As Madison famously said, “[k]nolwledge will forever govern ignorance”; “[a] popular government without popular information[] or the means of acquiring it is but a prologue to a farce or a tragedy or perhaps both.” [FN 102] Madison, nevertheless, argued that the Constitution did not need a Bill of Rights. [FN 103] Presumably, he thought the Progress Clause was not a danger to the public's ability to acquire knowledge. This may be because “progress” meant “spread,” i.e. distribution. Certainly the tension between the First Amendment and the Progress Clause is tamed by my reading of “progress.” [FN 104]
The Framers' infamous focus on preserving unequal private property [FN 105] does not undermine my argument. Some have argued that Madison, among other Framers, believed authors had a natural right to copyright protection. [FN 106] This argument, however, overlooks the limited quasi-property right such Framers seemingly supported. Besides the much narrower scope of both copyright and patent in English law at the time, we have contemporaneous statements to that effect by influential persons. Both Francis Hutchinson [FN 107] and John Witherspoon [FN 108] taught that an inventor has a natural right to reasonable compensation for his efforts, but does not have any right to hoard his learning if such reasonable compensation is available. [FN 109] The Federalist asserts that the rights of inventors and authors stand on the same logical premises. [FN 110]
2. An Evolving Constitution
Allowing the meaning of “progress” to evolve results in the same reading of the Progress Clause as using the original meaning of the word “progress.” Both methods converge on “spread” as the meaning of “progress”; both, therefore, construe the Progress Clause to allow only such private property as helps the dissemination of science and the useful arts. [FN 111] Let me explain.
If the “progress” we want Congress to promote is the latest, most evolved meaning of “progress,” we should not turn back to the nineteenth century “Idea of Progress.” As post- moderns we know, of course, that a poll of the current common use of the word “progress” would result in a useless cacophony. The language in the Constitution has been removed from every day speech and imbued with an almost religious aura. Certainly the aura is too overpowering, too vague, and too disputed for this type of simplistic empirical research to be an acceptable method of defining legal limitations.
We have, however, a very simple way of determining the modern meaning of “progress.” At its core, the post-Renaissance concept of progress is the claim that humans will change over time into more knowledgeable residents of a better society. To modernize “progress,” therefore, we can ask how “We, The People of the United States” [FN 112] improved our fundamental charter, the Constitution. What did We enact as constitutional “progress”?
“We, the People” changed the Constitution to allow more of us to be part of “We, the People.” This conclusion does not require any subjective evaluation. Just look at the Amendments to the Constitution. [FN 113] The first ten can be viewed in two different ways. First, they are part of the original document because the Constitution would not have been ratified without a promise to enact them; they are merely part of the baseline before we look for change. Alternatively, they protect individual citizens against the power of the newly created federal government. [FN 114] Either view is consistent with my thesis.
As for the other Amendments, the general trend is an increase in participation by more individual citizens. In 1804, the Twelfth Amendment separates out the votes for President and Vice President to allow the viability of the political party; a pooling of resources allowing some groups to overcome collective action problems. [FN 115] 1865 through 1870 give us the Reconstruction Amendments ending slavery, giving former slaves the vote, and starting the process of forcing the rest of “We, the People” to treat African-Americans with equality. In 1913, the Sixteenth Amendment allows the direct federal income tax _ a democratization of the cost of government. Amendment Seventeen makes the election of Senators more direct. In 1920, the Nineteenth Amendment gives women the right to vote. Sections one and two of the Twentieth Amendment enhance popular control of Congress by severely limiting the power of lame-duck members. [FN 116] The Twenty-Second Amendment creates a term limit for the Presidency. In 1961, the Twenty- Third Amendment finally allows the residents of the District of Columbia to vote for President and Vice President. The Twenty-Fourth Amendment, in 1964, outlaws the poll tax as a method of curtailing the right to vote. In 1971, the Twenty-Sixth Amendment lowers the voting age to eighteen. In 1992, the Twenty-Seventh Amendment restrains the power of Senators and Representatives to raise their own salaries without electoral feedback.
Some of these changes are minor. Some are major. All however are part of an ongoing movement towards allowing more people to have more power over their government. “We, the people,” therefore, have demonstrated unequivocally that “progress” in “promoting the general welfare” [FN 117] means spread, dissemination, sharing of power.
In sum, if we want to find an evolved meaning for “progress,” we can look at the evolution of the Constitution. Constitutional “Progress” means sharing, spreading, disseminating the power. “Progress,” therefore, means “spread.” The Progress Clause, thus, allows Congress to create individual rights to exclude only when those rights promote the spread of science and the useful arts. The explanation is supported by the undoubted dependance of political decision making on access to information. If more people are involved in governing, more people need to be informed; information needs to be spread throughout the politically empowered population.
II. Starting Points and Assumptions for Textual Analysis
Constitutional construction is generally divisible into four methods: (a) asking what the words meant when enacted, (b) asking the intent of the drafters or ratifiers of the language at issue, (c) asking how the principles of the drafters or ratifiers counsel us to act in the present case requiring decision, and (d) asking how modern principles counsel us to act in the present case requiring decision. [FN 118] The last two methods often involve using modern definitions of amorphous words such as “reasonable” or “due process.” [FN 119] As discussed in the next section, original intent, choice (b), seems unavailable for lack of evidence. [FN 120] Choices (c) and (d) founder on the lack of consensus. Both now and in 1789, people disagree about both the correct baseline and the empirical outcome of different protection levels. [FN 121] If we wish to convince disparate others, therefore, we are left with only method (a), Original Meaning. Original Meaning also has the virtue of current Supreme Court approval. [FN 122]
Completely rejecting the original meaning approach as to this particular constitutional clause, furthermore, would seriously upset current practice. “Writings” has been expanded to include two and three dimensional art objects and music. [FN 123] Under original meaning analysis, this move is easily supportable. “Author” in eighteenth century English was a very broad term. “God” was commonly described as the “author” of the physical world. [FN 124] The physical world was a text in which man could read divine messages congruent with those in the Scriptures, God's verbal text. [FN 125] Do we wish to cancel copyright protection of art and music? Do we wish to admit the level of inconsistency required to use an eighteenth century definition of “author,” yet insist on a mid-nineteenth century definition of “progress”? I suggest that all interpreters of the Constitution admit that we should at least start construction of the Progress Clause with late eighteenth century word use.
To make any headway, even under Original Meaning theory, I need to make several assumptions. All are reasonable, but all are merely assumptions.
First, I will assume that the words of the Progress Clause were carefully chosen for substantive reasons. [FN 126] As discussed below, the wording does not follow any of the suggestions made at the 1787 Constitutional Convention. It does not quote any ancestral document. Perhaps the drafting committee merely considered the sound of the words. I will assume, however, that the committee purposefully chose words that were not legal terms of art. I will assume that the committee chose these words because of what they meant.
Second, I will assume that the Progress Clause contains no surplusage. Eighteenth century authorities on style demanded brevity and clarity. [FN 127] The no surplusage rule is a time tested cannon of statutory construction. [FN 128] I admit that the Court has been known to be less kind to constitutional language. [FN 129] The Court, however, usually gives intent-related reasons for such lapses. [FN 130] Intent, however, is too murky in this instance to be a useful tool for someone who wishes to persuade.
Third, I will assume that the word “progress” has the same meaning as to the discoveries of inventors as it does regarding the writings of authors. [FN 131] The parallel construction of the Progress Clause implies this conclusion. At least one leading scholar, however, argues that “commerce” may have a different meaning in Article I, Section 8, Clause 3 when applied to “commerce among the several states” than when applied to commerce “with foreign nations.” [FN 132] That argument, however, claims an original intent basis for the distinction and admits that, absent an original intent record, the default position should be to give a word the same meaning throughout.
Before I discuss “progress,” I need to provide 1789 definitions for some of the other words in the Clause. “Useful arts” are the technological arts, as opposed to the liberal arts. [FN 133] In the eighteenth century,”science” included all knowledge and all subjects of organized study. [FN 134]
With this background, we are prepared to construe the word “progress.”
III. Drafting and Ratification
The standard explicative sources from the constitutional drafting and ratification process are not helpful in defining 'progress' as used in the Progress Clause.
First, the historical precursors of the Progress Clause do not use the same language. The English 1624 Statute of Monopolies [FN 135] (“Statute”) is the recognized ancestor of American utility patents. [FN 136] This Statute was an early Parliamentary attempt to limit monarchial power by preventing royal access to revenue sources unguarded by Parliament. [FN 137] The Statute opens by banning all legal claims of “monopoly,” [FN 138] but excepts from this general ban certain privileges granted to “the first and true inventor” of any “new manufacture.” [FN 139] The Statute does not mention anything akin to “progress.” The purpose preamble discusses only preventing harm to the public from improper grants. [FN 140] The English Statute of Anne [FN 141] (“Anne”) is the acknowledged ancestor of American copyright statutes. [FN 142] Anne is labeled “An act for the encouragement of learning” and declares that it is enacted both to prevent “printers, booksellers and other persons” from printing books “without the consent of the authors or proprietors” and “for the encouragement of learned men to compose and write useful books.” [FN 143] Anne does foreshadow the Progress Clause's assumption that legal control creates monetary rewards which, in turn, may provide a motive for publishing books. The word “progress,” however, is absent.
During the Articles of Confederation period, a committee of the Continental Congress did submit a report requesting the member states to pass copyright statutes. Twelve enacted such statutes. Neither the committee report nor the statutes, however, mention the “progress” of technology, learning, knowledge, science, or literature. [FN 144] The word “progress” does appear in the preambles to the almost identical Massachusetts, New Hampshire, and Rhode Island statutes:
Whereas the improvement of knowledge, the progress of civilization, the public weal of the community, and the advancement of human happiness, greatly depend on the efforts of learned and ingenious persons in the various arts and sciences . . . . [FN 145]
“Progress” is not tied to “knowledge”; it is tied to “civilization.” This phrase may easily mean that civilization is to spread geographically and throughout the population_ hardly an odd thought considering how little of the available land had been settled and how many niceties of society were confined to large settlements with water transport. [FN 146] This geographic reading of “the progress of civilization” is congruent with the wording of the then-current constitution of the state of Massachusetts.
Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties; and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of the people, it shall be the duty of this commonwealth to cherish the interests of literature and the sciences, and all seminaries of them; especially the university at Cambridge, public schools and grammar schools in the towns; to encourage private societies and public institutions, rewards and immunities, for the promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country; to countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty, and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people. [FN 147]
This passage is repeated almost verbatim in the New Hampshire state constitution; [FN 148] it is slightly echoed in the Rhode Island Constitution. [FN 149] Similarly, four of these early copyright statutes assert that new works help “mankind,” [FN 150] and five make provision for overriding the author's privilege if he fails to make sufficient copies of his work available locally at reasonable prices. [FN 151]
In summation, eight of the twelve pre-U.S. Constitution copyright statutes officially endorse the spread of knowledge.
At the 1787 Constitutional Convention, delegates voiced several relevant suggestions for congressional powers. “To grant to literary authors their copy rights for a limited time.” [FN 152] “To encourage by premiums & provisions, the advancement of useful knowledge and of discoveries.” [FN 153] “To grant patents for useful inventions.” [FN 154] “To secure to Authors exclusive rights for a limited time.” [FN 155] While several of these suggestions rely on the concept of monetary incentive, none uses the word “progress.” Madison's notes, furthermore, do not include any discussion of these suggestions. All we know is that the current language of Art. I, section 8, clause 8 emerged complete from committee on September 5, 1787 and was accepted with no one contradicting. [FN 156]
The ratification debates and related literature are unhelpful. They barely mention the Progress Clause. No one defined the word “progress.” [FN 157] The fullest discussion we have is Madison's short paragraph in the Federalist Papers. [FN 158] Madison claimed that, as to patents and copyrights, “the public good fully coincides with the claims of individuals.” This seems simplistic at best. We might consider Madison's words a gloss on the word “progress,” but I am more inclined to dismiss The Federalist's squib as a rapidly penned attempt to discuss all clauses in the proposed Constitution. The Federalist paragraph misstates then-current English law. [FN 159] The Federalists, furthermore, were rather too busy replying to objections to the Constitution to spend much thought on a clause whose positive grant of power had not been attacked. [FN 160]
In sum, while many scholars assume that the words in the Progress Clause invoke the Idea of Progress and paraphrase earlier documents, these are mere assumptions. The Progress Clause has unique wording and comes without an official set of definitions. [FN 161] We must, therefore, turn to other evidence.
IV. Testing Definitions in Context
The Progress Clause makes more linguistic sense when 'progress' is defined as 'spread' of knowledge and technology rather than either “qualitative improvement” or “quantitative improvement,” whether quantity is judged numerically or by economic value.
The first problem with accepting either of these alternative definitions is surplusage. If, as I have assumed, the Progress Clause contains no surplusage, “promoting the progress of science and the useful arts” must mean something different from “promoting science and the useful arts.” [FN 162] This alone bars both the quantity and quality definitions.
“Quality improvement” makes the language redundant. Telling a legislature “to promote the quality improvement of science and the useful arts” is the same as instructing it to “to promote science and the useful arts”; both reduce to encouraging the investment of time and money into work in science and the useful arts. My hunt through seventeenth and eighteenth century sources, furthermore, located numerous usages of the shorter phase or its equivalent with this meaning. Francis Bacon's leading book arguing the practical usefulness of the search for knowledge is titled “The Advancement of Learning,” not “The Advancement of the Progress of Learning.” [FN 163] Mandeville's “Fable of the Bees” repeatedly refers to “promoting” arts and sciences, [FN 164] but never to “promoting the progress” of any art or science. Alexander Hamilton's famous manufacturing group called itself the Pennsylvania Society for Encouragement of Manufactures and the Useful Arts, [FN 165] not the Pennsylvania Society for the Encouragement of the Progress of Manufactures and the Useful Arts. The Statute of Anne is “An act for the encouragement of learning,” not for “the encouragement of the progress of learning.” The Massachusetts and New Hampshire Constitutions call for the “promotion of agriculture, arts, sciences, commerce, trades, manufactures, and a natural history of the country,” not for the “promotion of the progress of agriculture, [etc.].” Even the Continental Congress' committee report argues that “the protection and security of literary property would greatly tend to encourage genius [and] to promote useful discoveries”; [FN 166] it does not speak of “encouraging the progress of genius” or “promoting the progress of useful discoveries.” [FN 167]
The quantitative definition makes “the progress of” even more clearly redundant. What does it mean to “promote science and the useful arts,” if not to take action that will increase the quantity of time, effort, money, or other resources devoted to “science and the useful arts” so as to increase the probable output? What about an economic interpretation of quantity? Under an economic reading, Congress is supposed to create those rights to exclude which result in the creation of works with the greatest total economic value. Unfortunately, the economic value of a work depends on the legal rights Congress creates. [FN 168]
As the chart on the Pennsylvania Gazette demonstrates, [FN 169] furthermore, the quantitative increase meaning of “progress” was quite rare. I found only twenty-one numerical uses out of a total of 575 occurrences of the word “progress.”
The next problem is clarity. Why use an unusual meaning of a common word when more usual words exist? [FN 170] My research evidences that an eighteenth century writer of English who wanted to indicate a desire for qualitative improvement would have been more likely to use some form of “improvement,” [FN 171] “perfection,” [FN 172] or “advancement.” [FN 173] Pinkney, for example, suggested that Congress have the power “to encourage by premiums & provisions, the advancement of useful knowledge and of discoveries,” echoing Bacon's treatise. [FN 174]
Additionally, the wide meaning of “science” makes “qualitative improvement” an unreasonable goal for an eighteenth century American. “Science” included all knowledge, especially all subjects of study. [FN 175] Not all of these can reasonably be supposed capable of qualitative improvement. Consider the “science” often touted as central to education, moral philosophy. [FN 176] If “progress” means “qualitative improvement,” we seem to be imputing to a mass of eighteenth century Christians the belief that human effort will improve on the lessons taught by Jesus and the Scriptures. [FN 177] The literary sciences are also problematic. Rhetoric, poetry, and drama are “sciences” in eighteenth century terminology. Would the general public of the United States (or even a major segment of the Framers) go on record that later authors will out shine Cicero, Homer, and Sophocles? I find this doubtful in light of these ancients almost canonical placement in the scholarly pantheon. [FN 178]
The contrary assumption makes the Framers bad politicians. Fear that any denigration of revealed religion would lead to the total breakdown of civilization was common in the eighteenth century. [FN 179] Even if the majority of the drafters took an extreme modernist position on literature and religion, why enshrine this position in a constitution? At the least, antagonizing supporters of ancient writers or apostles seems an absurd way to start an important, contentious, political battle.
Assuming, arguendo, that “progress” originally meant “qualitative improvement,” what happens to the Progress Clause if we accept current scepticism about the possibility of objective decisions on qualitative improvement in some types of “science”? [FN 180] Many commentators have noted the later importance of scientific advances which were originally seen as mere curiosities. [FN 181] As for literature, art, and music, Justice Holmes warned us in 1903 that “[i]t would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” [FN 182] If Congress can only grant intellectual property rights which promote “progress,” but we have no objective way to decide what constitutes “progress,” we have three options _ all bad
First option, because we must take the Constitution's limits seriously, and because Congress cannot tell if any proposed action is within constitutional limits, Congress no longer has power to grant intellectual property rights. No one wants this result.
Second option, because no one can demonstrate that Congress' “progress” guess is wrong, and because Congress is presumed to act constitutionally, [FN 183] Congress can grant any exclusive intellectual property rights it wishes. This seems to be Merges' position. [FN 184] Option two, however, stands the Federalists' claims of a limited government on their head. Albeit in dicta, furthermore, the Supreme Court has repeatedly asserted a limit lurking in the phrase “to promote the progress of science and useful arts.” [FN 185]
Third option, Congress cannot be sure what produces higher quality, so Congress may act to promote greater quantity on the assumption that some of the additional writings and discoveries will raise quality. This is the best of the three approaches, but it still has several problems. First, we are amending the Constitution without the required process. Second, we are selectively allowing the Constitution's words to change meaning over time _ discarding both consistency and the Original Meaning approach.
In sum, the leading alternatives to “spread” as the definition of “progress” do not work in the context of the Progress Clause. Now that I have explained why “spread” should be accepted if it is a possible definition, let us turn to the overwhelming linguistic evidence that “spread” is the most likely eighteenth century American meaning of the word “progress.”
V. Linguistic Evidence
A. Dictionaries
Dictionary definitions have a pedigree in constitutional interpretation. The Supreme Court cited dictionaries in approximately two hundred cases during the 1990s. [FN 186] Chief Justice Rehnquist famously used “the first American Dictionary,” Noah Webster's 1828 edition, to define “establishment” in the Bill of Rights. [FN 187] Dr. Samuel Johnson's famous tome has also figured in constitutional jurisprudence. [FN 188] I will, therefore, start with these judicially approved sources _ and then discuss why they are problematic evidence.
Johnson provides five definitions of the noun “progress.” First “course; procession; passage” as illustrated by Shakespeare's line “I cannot, by the progress of the stars, Give guess how near to day.” [FN 189] Second is “advancement; motion forward,” illustrated only by lines involving physical motion. [FN 190] As definition three, Johnson separates out “intellectual improvement; advancement in knowledge; proficience.” [FN 191] Fourth, “progress” may mean “removal from one place to another.” Fifth, a “progress” is “a journey of state; a circuit” as Bacon describes, “He gave order, that there should be nothing in his journey like unto a warlike march, but rather like unto the progress of a king in full peace.” [FN 192] In sum, Johnson supplies definitions including both physical movement and mental change. Physical motion predominates.
The 1828 Webster also emphasizes the physical motion aspect of “progress.” The first definition is “a moving or going forward,” for example, “a man makes a slow progress or a rapid progress on a journey.” [FN 193] The second is “a moving forward in growth; increase; as the progress of a plant.” Third is “advance in business of any kind; as the progress of a negotiation; the progress of arts.” Fourth, is an “advance in knowledge; intellectual or moral improvement; proficiency.” For example, “[t]he student is commended for progress in learning; the christian for his progress in virtue and piety.” The fifth definition is “removal; passage from place to place.” Sixth is “a journey of state, a circuit,” a usage credited to Addison and Blackstone. [FN 194] The source is interesting because American colonists were devotees of Blackstone's Commentaries. [FN 195] A royal visit to the outlying districts may, therefore, be the eighteenth- century's core example of a “progress.” [FN 196]
Webster's third definition is confusing. Why is “advancement in business” the same meaning as “advancement in arts”? Is Webster using “art” to mean “ hand craft”? [FN 197] The best reading of Webster's third definition is change over time towards a specific goal _ as completing a business negotiation or finishing a piece of hand crafting. I found repeated use of this definition in the Pennsylvania Gazette. [FN 198]
In sum, these two dictionaries evidence the importance of physical motion in the 1789 meaning of “progress.”
Dictionary making by Johnson or Webster is not, however, the best evidence of word usage in the 1789 United States. Such early dictionaries were fundamentally proscriptive, not descriptive. We have an unimpeachable source for this, Johnson's and Webster's own descriptions of their dictionary projects. Johnson wished his dictionary to spur “the improvement of [his] native tongue[], [FN 199] “instruct” its readers, [FN 200] and “fix the English language.” [FN 201] Johnson intended to include “the words and phrases used in the general [polite] intercourse of life, [and] found in the works of those . .. commonly stile[d] the polite writers,” [FN 202] “the best writers” as chosen by Pope. [FN 203] Johnson's definitions are both upper class and inherently English_ as opposed to American.
As for Webster, [FN 204] while on the correct continent, his work is almost fifty years post- ratification. Words changed rapidly in that time period in the United States. [FN 205] Webster did attempt to insert American words and American meanings for words, especially words with political overtones, [FN 206] but he did not claim to have taken any survey of public usage to obtain accurate definitions. Like Dr. Johnson, Webster relied on the best writers, but, unlike Johnson, Webster's “best writers” included Americans such as Franklin, Washington, and Kent. [FN 207]
In sum, dictionary definitions are not enough. [FN 208] The dictionaries are not empirical reports on the word usage of any group of persons. Additionally, Johnson is on the wrong continent and Webster is almost fifty years too late. Furthermore, each word has multiple dictionary definitions. You do not have to believe in an evolving Constitution to refuse determinative weight to either Webster or Johnson.
B. The Pennsylvania Gazette
The electronic age has provided a wonderful new access point to 18th century American word usage. We now have searchable access to the full text of each surviving issue of the New York Times of the American colonies, the Pennsylvania Gazette. Because “progress” is not a technical word of the legal art, I consider the word usage of the Pennsylvania Gazette the best currently available evidence of what 1789 American residents would have understand from the word “progress” in the Progress Clause. Many ordinary Americans limited their reading to the Bible and the newspapers. [FN 209] The word “progress” does not appear in the King James Version of the Bible. [FN 210] Because the Progress Clause also lacks exposition in the standard sources of original intent/meaning, [FN 211] many originalist scholars should agree on the Gazette's primacy.
To decide the meaning of “progress,” I ran a full text search for just that one word in all existing issues of the Pennsylvania Gazette printed from its inception through the end of the seventeenth century. I located 575 uses of the word “progress.” Based on the results, I formulated five distinct definitions. I then divided the occurrences into six categories: the five definitions and mere quotations of the constitutional clause. [FN 212] The results are:
| Definition | Occurrences |
| [a quote of the phrase in the Constitution] | 6 |
| movement through time, i.e. a chronologically arranged account without implication of qualitative improvement [FN 213] | 80 |
| numerical increase without implication of qualitative improvement | 21 |
| change or action towards a pre-set goal, e.g. progress towards finishing a book | 125 |
| qualitative improvement | 124 |
| physical movement without implication of qualitative improvement, e.g. progress of a fire or a traveler | 213 |
These results do not support the usual assumption that “the progress of science and useful arts” means qualitative improvement in “science” and “useful arts.” By far, the most common use of “progress” was for destructive physical movement. The single most common word in the phrase “the progress of ....” is “fire.” The Gazette speaks of the “progress of a fire” when a modern newspaper would report its “spread.” Fifty-one times fire made a “progress” through some human construction, such as a house. Eighty-five times the geographical “progress” was by an armed man, group of men, or an entire army _ quite often the enemy's troops. Thirteen times some illness made a “progress.” The Gazette also reported the “progress” of other destructive entities _ such as ravenous insects, [FN 214] bad weather, [FN 215] and possibly hostile ships. [FN 216] This pattern of use is inconsistent with the persistent assumption that in colonial North America “progress” meant “qualitative improvement.”
The result is even more striking when one notes that the text of the proposed federal Constitution, the Federalist Papers, and numerous other ratification discussions were printed in the Pennsylvania Gazette.
The Federalist Papers, for example, contain two uses of the word “progress,” [FN 217] neither of which involves qualitative improvement. The Federalist printed in the Nov. 14, 1787 issue of the Pennsylvania Gazette referred to the “progress of hostility and desolation” among the colonies during the Revolutionary War; the same description of the colonists also asserts that “their habitations were in flames” and “many of their citizens were bleeding.” [FN 218] Federalist No. 5 uses 'progress' while arguing that multiple confederacies are not a good idea because, inter alia, they will not remain “on an equal footing in point of strength.” “Independent of those local circumstances which tend to beget and increase power in one part, and to impede its progress in another, we must advert to the effects of that superior policy and good management ....” [FN 219] Let us, now, look more closely at the 124 entries where 'progress' might mean some type of qualitative improvement (but not change over time towards a pre-set goal). The following chart lists the subjects which were said to progress qualitatively:
| subject | occurrences |
| individual humans or schools | 15 |
| populated geographic areas | 27 |
| religious vices or virtues | 12 |
| arts | 4 |
| commerce & manufacturing | 10 |
| mankind | 7 |
| architecture | 1 |
| public & private improvements | 1 |
| liberty | 3 |
| militia | 7 |
| liberal sciences | 6 |
| science | 6 |
| national assembly | 1 |
| agriculture & commerce | 1 |
| revolution | 5 |
| government | 2 |
| language | 2 |
| poetry | 1 |
| useful arts | 1 |
| illness | 2 |
| arts & sciences | 2 |
| geographic knowledge | 1 |
| truth & reason | 1 |
| political knowledge | 2 |
| dangerous innovations | 1 |
| [unclear oddities] | 3 |
Seventy of the Gazette's “quality” occurrences refer to increase in proficiency by some person or group of persons: “progress” by schools, individuals, populated geographic areas, and the national assembly. Several of the other progressing subjects are likely to be increasing in quality by increasing geographically or quantitatively (numerically or in economic value) _ religious vices and virtues, commerce & manufacturing, public & private improvements, agriculture and commerce, revolution, illness, and dangerous innovations; these total another thirty-two occurrences. Deducting the three oddities, the proficiency increases, and the quantity increases, leaves us only twenty possible occurrences of 'progress' for quality improvement in the fund of knowledge, The Idea of Progress.
To recheck, I went back through my notes looking for occurrences of “progress” that might be references to improvement in the knowledge-base. I found forty-six which, on first reading, might be so construed. These occurrences are listed chronologically in the chart immediately below.
| Year | Item No. [FN 222] | Subject which is progressing | Substrate in/through which progress is being made | Comments |
| 1739 | 3638 | our colony | [not mentioned] | resignation speech of speaker of Pennsylvania legislature |
| 1739 | same | our colony | [not mentioned] | same |
| 1752 | 14881 | human mind | “an account of the gradual progress of the human mind, from its first dawning of sense to the highest perfection, both intellectual and moral of which it is capable” | advertisement for “Noetica: or the first principles of human knowledge,” author not mentioned. The book is “very proper to form the minds of youth in knowledge and virtue.” [FN 223] |
| 1754 | 16632 | liberal sciences | [not mentioned] | announcement of lottery to raise funds for College of New Jersey |
| 1755 | 17858 | the earliest settlers of South Carolina “brought with them the Laws of the Mother Country ... the privilege of enacting laws for their good Government, without which they could have made no progress” [but asking legislature not to pass any unusual act without first learning King's pleasure] | speech by Gov. of S. Carolina at opening of legislative session | |
| 1771 | 48758 | science | “in this infant country” | open letter from trustees of a charity school to Lt. Gov. John Penn on the sad occasion of his return to England |
| 1771 | 49682 | “the French language is like to keep pace with the liberal arts and sciences which have already made such great progress in this infant colony” | advertisements for pupils to learn French | |
| 1771 | 49224 | “Cultivation of the arts and Sciences” | “your Province” | Letter from man in Williamsburg, VA to Philadelphia, mentioning reward given by Pennsylvania Assembly to person who “improved the Orrery” |
| 1772 | 50481 | science | [not mentioned] | Letter from American Philosophical Society asking readers to contribute readings on magnetic variations for compilations into a useful report |
| 1773 | 52679 | “useful arts” | in America | advertisement for a locally produced varnish |
| 1775 | 57092 | province of Pennsylvania | in science and literature | opening of flowery political essay by Camillus |
| 1776 | 59903 | arts and sciences | in America | address by Governor of Georgia to state legislature; requesting more persons to manufacture gunpowder |
| 1776 | 59857 | men | “as individuals” | subtopic in book being advertised, Lord Kaims (Henry Home), “Six Sketches on the History of Man” [FN 224] |
| 1776 | same | “the origin and progress of arts” | [not mentioned] | subtopic in book |
| 1776 | same | “the female [sex]” | [not mentioned] | subtopic in book |
| 1777 | 60919 | USA | towards “an elegance of freedom” | address in Pennsylvania legislature |
| 1778 | 62959 | truth | [not mentioned] | advertisement for Dr. Price's book, “Additional Observations on Civil Liberty and the war with America” [FN 225] |
| 1782 | 67818 | arts | USA | wording of recommendation of an American edition of the Holy Scriptures. Congress gave printer permission to publish this recommendation |
| 1783 | 69297 |
language etc. [phrase used is 'rise and progress of language, etc'] |
[unmentioned] | advertisement for Hugh Blair's book “Lectures on Rhetoric and Belles Lettres” [FN 226] |
| 1783 | same | poetry | same | |
| 1786 | 73117 | “these laudable sciences” of “fraud and injustice” | citizens of Rhode Island | ironic opening to commercial announcement that a RI person had paid a mortgage in paper currency |
| 1788 | 75402 | “political knowledge” | [unmentioned] | Dec. 10 letter from “an american citizen” giving “thoughts on the subject of amendments to the foederal constitution” |
| 1788 | 75380 | “political science” | [unmentioned] | Dec. 3 “ ” |
| 1788 | same | “our progress” | “to greater perfection” | same |
| 1789 | 75916 | the arts | “their progress and improvement” | advertisement for subscription to a dictionary especially useful for artificers |
| 1789 | 76360 | “an industrious and frugal people” | “towards wealth and comfort” | Letter from North Carolina on inter alia ratification of US Const. |
| 1789 | 76338 | truth and reason | Paris | Aug. 30, 1789 letter from Paris |
| 1789 | same | “such ideas” [limitation of king's power] | “from the days of Magna Carta to the last revolution in England, their retrograde motion from the time of the great Henry, to Louis XVIth in France, and their dormant state for many ages in all of Europe, it is astonishing ..” | same |
| 1789 | 76353 | science | in not falling for delusions, such as tales of evil spirits | from the Gazette of the United States, The Tablet No. LXXII |
| 1790 | 76728 | humanity | [not mentioned] | announcement of contents of the May 1790 issue of “The Universal Asylum and Columbian Magazine” |
| 1790 | 76909 | science | in America | announcement of dialogues spoken at public commencement exercises of the college of Philadelphia |
| 1790 | 77075 | “violated rights of reason and humanity” | in France | Americans should congratulate themselves on giving France the spirit of liberty |
| 1790 | 77159 | “further progress is daily making in the geographic knowledge of our country” | advertisement for maps to be published on subscription | |
| 1790 | 76877 | sciences | [not mentioned] | from title of a “dialogue” performed at college commencement |
| 1791 | 77582 | liberty | USA | ceremonial address on the Anniversary of the Columbian Order by the Sons of Tammany |
| 1793 | 78935 | architecture | USA | announces prize choice in competition for plan of a new hotel |
| 1794 | 79575 | the arts and sciences | in the USA | letter complaining of British actions against the USA; responds to King's expression of pleasure in prosperity of the USA |
| 1794 | 79441 | mankind | [not mentioned] | letter from a gentleman in the western territory reporting revolt Louisiana revolt against Spain |