Читать книгу Culture Clash - Steven Goldberg H. - Страница 20

In sum, scientific speech receives the full protection of the speech and press clauses of the First Amendment. Yet if science were free but ineligible for direct government support, American science would be a shadow of its present self. Fortunately, government funding for science is built into the constitutional system and is based primarily on firm historical and institutional precedents rather than on short-term political developments.

The Constitution does not state explicitly that the federal government shall fund scientific research. Certain clauses, however, virtually require government support of science, whereas others permit such support for a broad range of activities.

In the early years of the republic, the power conferred in the Constitution to establish a seat of government led to important surveying efforts in Washington, D.C.⁴⁹ Madison contended that congressional power over the district also included the power to create a federal university, although such a university was never created.⁵⁰ The power to regulate commerce helped justify activities such as research on the causes of steamboat boiler explosions,⁵¹ and the power to take the census made the government a major source of social science data.⁵²

But from the framers’ point of view, three areas of congressional authority—the military, coinage weights and measures, and patents—were the most important in bringing about government support for science. And in our times a fourth power—to spend for the general welfare—has outstripped all of the others in this respect.

Let us look first at the military. At least since the time of Leonardo da Vinci, scientists have contributed directly to the development of sophisticated weaponry.⁵³ At times, the needs of the military have inspired science; at other times, science has inspired the military.⁵⁴ During the Revolutionary War, the colonies’ leading scientists participated fully in the war effort. David Rittenhouse performed general science advisory work and, in addition, substituted iron for the lead clockworks in Philadelphia to obtain lead for bullets.⁵⁵ Benjamin Rush devised a gunpowder production method used at the Philadelphia saltpeter works.⁵⁶ One colonial scientist, David Bushnell, even invented a submarine—the American Turtle—which, although unsuccessful militarily, was an important advance in its field.⁵⁷

The constitutional clauses concerning national defense were not written to aid science, but they were written with an understanding born of the Revolutionary War experience that science was an important part of the military effort.⁵⁸ After enactment of the Constitution, the military power became the source of some of the federal government’s earliest expenditures for science. Wartime experience had convinced George Washington, for example, that the country needed a military academy to train engineers.⁵⁹ Thus West Point, established in 1794, became America’s first national scientific institution—from the beginning, West Point taught physics and mathematics as well as engineering, and graduates played a major role in government surveys and related activities.⁶⁰ In 1802, military needs furnished part of the justification for congressional funding of the Lewis and Clark expedition, which made valuable findings in fields such as botany and zoology.⁶¹ From those early years until the present, military expenditures have included scientific research in a variety of areas, ranging from astronomy to health to nuclear physics.⁶²

The only constitutional provision that arguably poses a barrier to the military-science relationship relates to the congressional power over military appropriations. As a concession to those who opposed a standing army, the Constitution provides that Congress shall have the power “to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.”⁶³ The debates at the constitutional convention ⁶⁴ and in the Federalist Papers⁶⁵ indicate that this clause was designed to provide close congressional oversight of military expenditures. If read broadly to include, for example, prohibition of funding for long-term research programs, the clause could hamper the military’s relationship with science: it is difficult to require short and specific time limits for research and development contracts as distinguished for ordinary military procurement because such time limits can hinder the scientific endeavor.⁶⁶ Opinions of the attorney general, however, have concluded that the two-year appropriation clause does not limit the military’s power to make long-term contracts.⁶⁷ Thus the military portion of the constitutional connection between government and science is secure.

Congressional authority over coinage, weights, and measures provides another constitutional link between government and science.⁶⁸ Effective implementation of the coinage power was thought at the outset to require the highest order of scientific talent. President Jefferson appointed the ubiquitous Rittenhouse to be the first director of the Mint,⁶⁹ and for half a century the Mint was headed by scientists.⁷⁰ The appointment of scientists to this directorship was only partially successful. Coinage requires skill, but not that of a scientist.⁷¹ Today, the Mint occupies only a modest place in the government’s scientific activities.

The federal power over weights and measures had the opposite development. Although presidents from Washington through John Quincy Adams urged development of exact standards, a task requiring considerable research on fundamental physical constants, Congress was reluctant to spend much money.⁷² The study of weights and measures was limited to a minor effort in the Treasury Department’s Coast Survey, and even that effort was not formalized until establishment of the Office of Weights and Measures in 1836.⁷³ In 1901, however, Congress created the National Bureau of Standards and combined its power over the preparation of standards with power to solve “problems which arise in connection with standards; the determination of physical constants and the properties of material, when such data are of great importance to scientific or manufacturing interests.”⁷⁴ Creation of the bureau was a major event for America’s physicists and chemists.⁷⁵ Although bureau funding vacillated over the years, it made important contributions to scientific research since its inception.⁷⁶ Today, the bureau, now known as the National Institute of Standards and Technology, carries out basic research in a variety of fields, including physics, mathematics, chemistry, and computer science.⁷⁷

The final direct constitutional link between science and government stems from the patent clause in the Constitution, which provides that “Congress shall have the 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.”⁷⁸ Because both the patent and copyright powers stem from this clause, some contend that the clause should be analyzed as a “balanced sentence,” giving Congress two separate powers: “to promote the progress of science … by securing … to authors … the exclusive right to their writings” and “to promote the progress of… useful arts … by securing … to inventors … the exclusive right to their … discoveries.”⁷⁹ This reading limits the word science to the copyright power, a possible result in light of the broad eighteenth-century usage of the word. The “balanced sentence” approach has been challenged vigorously on the ground, inter alia, that early patent laws referred to the “art” and “science” of invention, and thus the patent power properly extends to both “science and useful arts.”⁸⁰

In practice, patent law includes what is termed science and technology, subject to limitations such as the nonpatentability of laws of nature. The origins of the patent clause, with emphasis on the key goal of spurring progress, have been exhaustively studied.⁸¹ From our perspective, it is important to note that awarding patents does not involve the government directly in funding⁸² or in choosing precise areas of research. Nevertheless, the patent monopoly is an incentive for scientific progress, and the range of patentable items defines the broad areas in which that incentive will operate. Prior to the American Revolution, European patents were granted at times to protect old as well as new products.⁸³ The American aversion to monopolies and the Enlightenment goal of furthering knowledge combined to limit the patent clause to those inventions that promote progress.⁸⁴ Congress and the courts have been reasonably consistent in adhering to this limitation. Thus patents are not available for obvious developments, however valuable.⁸⁵ Nor are they available for nonobvious discoveries such as Newton’s laws, because permitting monopolies on laws of nature or mathematics would take essential building blocks away from other scientists and retard the development of science.⁸⁶ As a result, the patent power is limited to those discoveries that fall somewhere between the mundane and the magnificent. From the point of view of intellectual property, an obvious discovery or a newly discovered law of nature might be just as valuable as a patentable device, but progress, not value, sets the constitutional standard.