Every once in a while, we come upon an event of seemingly minor import which, on reflection, turns out to…
Every once in a while, we come upon an event of seemingly minor import which, on reflection, turns out to betoken deep and problematic truths about our culture. The “Patenting of Life” decision is such a significant event.
On June 16, 1980, the Supreme Court of the United States ruled that a living microorganism was patentable matter, under the provision of patent laws enacted by Congress in 1952. In 1972, Ananda Chakrabarty, a microbiologist at the University of Illinois, had filed patent application, assigned to the General Electric Company, asserting multiple claims related to a novel bacterial strain that he had obtained with the aid of techniques of genetic engineering, a strain capable of degrading many components of crude oil and thus potentially useful in the biological control of oil spills. In addition to readily granted process claims for the method of producing the bacterium, and claims relating to the mode of carrying such bacteria to water-borne oil spills, Chakrabarty claimed patent rights to the bacteria themselves. This last claim, at first rejected by the patent examiner and then by the Patent Office Board of Appeals, was finally granted on appeal by the United States Court of Customs and Patent Appeals in 1979, in the decision affirmed by a narrow five-four vote of the Supreme Court a year later (Diamond v. Chakrabarty, 447 U.S. 303).
The case attracted considerable attention, but the Court’s decision fell short of the momentous ruling some had anticipated. For one thing, the Court was divided. For another, both sides agreed that the question before them was simply “a narrow one of statutory interpretation,” requiring the Court to construe the language of that section of the patent law which defined patentable matter. The Court’s opinion, and the dissent, were largely technical. Thus, readers of the opinion who looked for large philosophical dicta about man’s art and living nature or about genetic engineering came away disappointed. Alas, it looked as if the Court was, for a change, being simply judicious, doing no more than its proper work.
Yet the decision was not inconsequential. Indeed, it has already contributed to numerous recent practices. Patent claims are now pending for other living microorganisms, as well as for animal cell lines propagated in tissue culture, allegedly valuable for uses ranging from a cheaper means of making penicillin to novel treatments for specific cancers. Genetic-engineering firms are springing up all around. Academic molecular biologists are being courted by industry, with astounding financial incentives. Major grants for genetic-engineering research to universities have been given by industries in exchange for patent rights to any resulting useful and profitable discoveries. Under such an agreement, Hoechst, the German chemical company, has just given $50 million for a new genetic-engineering institute to Harvard Unversity, which, after considerable faculty opposition, had only recently abandoned plans to form its own genetic-engineering company. Many industries are tooling up in anticipation of the flood of new organisms and cell lines to be brought into being with the aid of human ingenuity, spurred on by our ingenious stroke to encourage genius, the patent laws. True, the art of genetic engineering was born and would grow without the Chakrabarty decision. But there is no question that it will now grow much, much faster.
But the Chakrabarty decision is useful in yet another, perhaps more fundamental, respect. It is useful for thought, for reflection on the relation between modern science and politics, and between science and the American polity in particular, especially as that relation is embodied in and exemplified by the patent laws. Indeed, the Chakrabarty case provides a wonderful mirror in which we can see fundamental features of the American polity, and therewith of modernity itself, and discern some of its deeper tensions: the relation of private interests or rights and the common good; the purposes of science and thought and their relation to practice and to the public interest; and, finally, the prevailing view of man’s place in and attitude toward the natural world. Before looking into that mirror, we need to describe some contours of the broader background.
Science in the public interest is a guiding intention of modern science and has been since its origins in the 17th century. Though we hear much about the distinction between pure and applied science—and I too shall distinguish them later—we must begin by emphasizing the essentially practical and social intention of modern science as such. Unlike ancient science, which sought knowledge of what things are, to be contemplated as an end-in-itself satisfying to the knower, modern science seeks knowledge of how things work, to be used as a means for the relief and comfort of all humanity, knowers and non-knowers alike. Standing on the threshold of the new science of mathematical physics, Descartes appeals for popular support of his researches by announcing the good news of knowledge “very useful in life”:
[S]o soon as I had acquired some general notions concerning Physics . . . I believed that I could not keep them concealed without greatly sinning against the law which obliges us to procure, as much as in us lies, the general good of all mankind. For they caused me to see that it is possible to attain knowledge which is very useful in life, and that, instead of that speculative philosophy which is taught in the Schools, we may find a practical philosophy by means of which, knowing the force and the action of fire, water, air, the stars, heaven, and all the other bodies that environ us, as distinctly as we know the different crafts of our artisans, we can in the same way employ them in all those uses to which they are adapted, and thus render ourselves the masters and possessors of nature. This is not merely to be desired with a view to the invention of an infinity of arts and crafts which enable us to enjoy without any trouble the fruits of the earth and all the good things which are to be found there, but also principally because it brings about the preservation of health, which is without doubt the chief blessing and the foundation of all other blessings in this life. For the mind depends so much on the temperament and disposition of the bodily organs that, if it is possible to find a means of rendering men wiser and cleverer than they have hitherto been, I believe that it is in medicine that it must be sought. (Discourse on Method, Part VI. Emphasis added.)
The announced goal of the new science is the mastery and possession of nature, and the purposes of mastery are humanitarian: the conquest of external necessity, the promotion of bodily health and longevity, the provision of psychic peace or a new kind of wisdom.
Even the notions and ways of science manifest a conception of knowledge for the sake of power: nature is conceived mechanistically, and explanation is in terms of efficient or moving causes; hidden truths are gained by acting on nature, i.e., through experiment; inquiry is made “methodical,” through the imposition of order and schemes of measurement “made” by the intellect; knowledge, embodied in laics rather than theorems, becomes “systematic” under the rules of a new mathematics expressly invented for this purpose. Modern science rejects, as meaningless or useless, questions that cannot be answered by application of the method. In all these fundamental ways, modern science has a practical cast. This remains true of the science practiced even by those great scientists who are driven by curiosity and the desire for truth and who have themselves no interest in that mastery and possession of nature for which science is largely esteemed by the rest of us.
Though essentially linked to practice, modern science is, in certain important respects, morally neutral. It does not itself seek knowledge of the good. Indeed, it looks upon nature, its object, as neutral and indifferent to the good or the beautiful. Moreover, the technical power it yields can be used for good or ill. Nevertheless, modern science is guided overall by an ethical—if prideful—intention: a lifting up of downtrodden humanity, a reversal of the curses laid upon Adam and Eve, and, ultimately, a restoration of the tree of life, by means of the tree of knowledge. Never mind the question how a science invincibly ignorant of and in principle skeptical about standards of better and worse can know how to do good for mankind. The new humanitarians simply point to the seemingly self-evident truth that life becomes better as it becomes less poor, nasty, brutish, and short.
Gradually, and increasingly as it began to make good its promise of technological fruit from the tree of useful knowledge, science was welcomed into partnership with the political community. Yet thoughtful men disagreed sharply about how science and the useful arts would and should relate to morals and politics. Close to one extreme was the view that popular enlightenment—and particularly the teachings of modern science—undermined ruling opinions and beliefs, especially religious beliefs, necessary for a good regime, and that unbridled progress would lead to luxury, the liberation and inflation of vain and foolish desires, and the debasement of morals and taste. Though they welcomed science’s contributions to health and plenty, these thinkers argued the need for settled laws, customs, and mores to restrain the turbulent and licentious souls of men. In the absence of such restraints, the conquest of nature without could enslave us to unruly nature within.
Even Francis Bacon, perhaps the greatest proponent of the marriage of science and politics, understood that the novelty sought by the former was not always congenial to the stability required by the latter. Bacon’s image of the best community, presented in his New Atlantis, does indeed award a central place to Baconian science: the jewel and lantern of the kingdom is a prodigious, state-supported, scientific research foundation, called Solomon’s House or the College of the Six Days Works (which, by the way, artfully creates new species through genetic manipulation). But the community is not enlightened. The populace has little access to the scientific goings-on, and the scientists practice self-censorship to avoid publicizing dangerous knowledge. A benevolent state, with the help of or perhaps under the direction of the scientists, apparently closely regulates the lives of its inhabitants by means of austere rituals, state-supported (albeit tolerant) religion, and—one suspects—perhaps even some scientifically-based means of behavior modification. According to Bacon, the mixture of science and politics, though desirable and even urgent, was potentially explosive and needed delicate handling.
In contrast, some of the Enlightenment thinkers of the 18th century and their descendants were much more sanguine about the easy compatibility of science and society. The most optimistic ones prophesied an unlimited and coupled progress of science and morality: the progress of science and technology would conquer necessity and alleviate human misery, and man thus emancipated from nature’s harsh and cruel necessities would flower morally into the good creature only his neediness prevents him from being. Man once liberated and enlightened, the external restraints imposed on him by law, mores, and religion would eventually become unnecessary. In the end, the state would wither away; politics, the rule over men, would be replaced by administration, the management of things. Our various species of Marxism are the lineal descendants of this messianic view of human perfectibility based on progress in the arts and sciences.
To summarize, whereas pre-modern political thinkers and statesmen placed their trust in law and morals, and doubted the ethical and social benefits of inquiry, modern science, devoted to the public good, found a political home and able defenders in modern, liberal regimes. Nevertheless, the proper balance and relation between science-technology and law or morals, between change and stability, remained an open question.
The founders of the American republic, though influenced by optimistic Enlightenment thought, were hardly utopians; they pursued a middle course. They knew human nature well enough not to underestimate the crucial importance of good laws, education, and also religion for the preservation of decency and public-spiritedness. But they also appreciated fully the promise of science. The American republic is, to my knowledge, the first regime explicitly to embrace scientific and technical progress and officially to claim its importance for the public good. The United States Constitution, which is silent on education and morality, speaks up about scientific progress. It does so in the course of defining the powers of Congress (Article I, Sec. 8):
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.
“To promote the Progress of Science and the useful Arts.” It is curious that this provision has come to be known as the Copyright and Patent Provision rather than the Provision on Progress in the Sciences and Useful Arts; for such progress is the explicit goal and purpose of the congressional power to enact the copyright and patent laws. These statutes, which we think of largely as protecting so-called intellectual property, were in the first instance thought of as useful to scientific and technical progress.
But progress was not itself the final end. Congress was given power to promote the useful arts, not the useless ones (e.g., the liberal arts or the fine arts). In the Federalist (No. 43), Madison speaks of the unquestionable utility of this congressional power to promote progress, and the context suggests that by its utility he means its usefulness to the public good.1 From this we infer that the useful arts and sciences were meant to be subordinated to, and in the service of, the well-being of the nation. Not progress for progress’s sake, but progress that might serve the enduring and unchanging goals set forth in the Preamble to the Constitution, among them, to provide for the common defense and promote the general welfare, and thus, indirectly, to establish justice, to insure domestic tranquility, and to secure the blessings of liberty to ourselves and our posterity. The American republic embraces change, but in the service of duration; science, but in the service of liberty and justice, defined by law. In this respect the Copyright and Patent Provision is perhaps only the most obvious example of the American way. For the entire Constitution is a deliberate embodiment of balanced tensions between science and law and between stability and novelty, inasmuch as the Founders self-consciously sought to institutionalize the improvements of the “science of politics,” and in such a way that would stably perpetuate openness to future change.
How best to promote the arts and sciences? How to induce talented men to behave for the common good? The Constitution once again makes a clear and measured choice: private enterprise, governed and protected by law. Other possibilities were considered by the Convention. Madison had proposed, among the powers of Congress, “To establish a university” and “To encourage by premiums and provisions, the advancement of useful knowledge and discoveries.” Yet the Convention rejected the establishment of a national university and the federal support of science through prizes and provisions, and adopted, apparently without debate, the provision which encourages progress by adding the fuel of interest to the fire of genius.
This reliance on self-interest and the motive of gain might be attributable to the Founders’ hard-headed appraisal of the selfish tendencies of most human beings; and cynics have sometimes attributed such motives to the Founders themselves. But a careful look at the constitutional text indicates that the patent provision is a matter not only of calculation but also of justice. Congress is empowered to secure, that is, to make safe and protect, a right of authors and inventors to the fruits of their genius and energy, a right which, by implication, antedates the Constitution. Indeed, this “Right of Authors and Inventors to their respective Writings and Discoveries” is the first and only right mentioned in the body of the original Constitution of 1787 (that is, before the Amendments and Bill of Rights). To quote Madison: “The copyright of authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors.”
There is justice, then, in the claims of copyright and patent. To be sure, doing justice will be complicated if the patent prize is awarded only for finishing first in a race in which the winner ran only the last leg of a long relay, tens or hundreds having assisted him. Nevertheless, everyone sees the at least prima facie claim that justice requires protecting the labors of the imaginative and industrious against theft by the sly and lazy. If theft of property is wrong, the right of patent is right, at least in some sense. The foundation of the patent law is not only utilitarian, but also ethical.
Indeed, it is ethical also in its consequences for character. The law not only protects individual rights and prevents injustice; it also rewards and encourages the energetic cultivation of the mind and the intellectual virtues of inventiveness, order, and precision, and promotes in publicly beneficial ways the moral virtues of ambition and industry. These likely consequences were in fact very important to many of the Founders, and their decision to fuel private enterprise was partly based on these hoped-for improvements in character and mind. To be sure, the mind has other and higher objects than inventions, and ambition and industry do not exhaust the moral virtues. Still, a respect for the human mind and an appreciation of efforts to realize its potential are built into our constituting law. One errs to see here only greed and base calculation.
Patent laws serve the public interest at the same time as they protect private rights. The community gains publication, likely development of inventions, a share in the resulting prosperity, and, should it desire it, some legislative hand on the throttle of progress. The patent laws of 1790, enacted by the first Congress, thus established what can rightly be called an ethical-social contract of science in the public interest. In order to secure their rights, authors and inventors had to disclose, that is, make gift to the public of their findings: no protection without publication. (In choosing to promote the widest possible publication, the Founders showed less concern than Bacon for the problem of dangerous knowledge, a matter to which we shall return.) Moreover, the exclusive right was obtained for only a limited period, to encourage prompt development and production of new inventions; thus, society might reap the benefits of innovation more quickly than if the right were of unlimited duration. All in all, the Copyright and Patent Provision and the patent law are most ingenious, public-spirited, and just inventions—themselves worthy of patent protection. Madison praised the former, saying, “The public good fully coincides with the claims of individuals.” Abraham Lincoln (in his lecture on “Discoveries and Inventions,” February 11, 1859) listed the latter, along with the arts of writing and printing and the discovery of America, among those few inventions and discoveries in the history of the world, most valuable “on account of their great efficiency in facilitating all other inventions and discoveries.”
Time has vindicated these judgments. We are showered on all sides by countless benefits of this far-sighted invention of the American mind, which harnessed science and artful intelligence to the carriage of state and which kept it moving by means of the carrot of self-interest. It would seem hypocritical and, what is worse, ungrateful, to question this arrangement, all the more so in the light of the marvelous contributions to our health and prosperity that we can now obviously expect from the industrial exploitation of learning how to get microorganisms to do our manufacturing.
And yet, honesty compels us to point out certain peculiarities of this arrangement, peculiarities that might eventually give rise to serious difficulties, not only for the union of science and the American polity, but also for each of the partners taken separately. First, it should be observed that the contract formed by the patent law brings together, in stressful if fertile union, certain contradictory, or at least inhospitable, partners and principles: self-interest and common good; monopoly and liberty; the ownership of ideas and the sharability or publicity of speech and thought. The patent law seeks to promote the common good by licensing private interest, thus running the risk of fostering a crass selfishness that in any particular instance might sacrifice public interest to private gain and that eventually renders men generally indifferent, or even hostile, to the common good. It seeks indirectly, by means of progress and prosperity, to safeguard political liberty, but it does so by legitimating monopoly—albeit of limited duration—which is the antithesis of liberty. It rewards publication and, therefore, presupposes the sharability of thoughts and ideas, yet it does so by licensing the private ownership of these works of the mind.
Second, there is the already noted built-in tension between progress and stability. Indeed, the very idea of a patent law is something of an oxymoron: it is a hybrid of two opposing principles, change and order, that live always in tension with each other. Law as law stands for order and stability. It not only sets limits and restrains undesirable conduct. It also embodies our opinions, albeit our variable opinions, about what is just and good. Though subject to change, law as such points to what is permanent. A law to encourage progress is thus, at bottom, a paradoxical law. In a way, though it promotes change, as an expression of legitimacy the patent law still, at least formally, accords primacy to order. Absent such a law, innovation would lack legal protection and even legitimacy. Thus, the supremely ingenious invention of the patent law could not itself be patentable, due to an absence of law.
In principle, the Constitution goes further than this formal subordination. The constitutional Patent Provision, we have suggested, maintains a balance by subordinating progress to the unchanging, substantive goals of justice and liberty. But in practice, the patent law threatens to tip the scale in favor of runaway change. Increasingly encouraged, the horses of technological progress break into full gallop, seemingly out of anyone’s control, and the community is left with the difficult task of adjusting after the fact to the paths traveled and the changes wrought. Sometimes, when progress comes before the bar—as in the present case—even learned men judicially charged with upholding the law choose instead injudiciously to redefine it, in order to keep pace with novelty.
Finally, there are potential strains in the American polity’s contract with science, insofar as the polity accepts without reservations the methods, principles, and purposes of modern natural science. For example, the practice of experimentation, when extended to human subjects, often places science on a collision course with the rights of individuals. Worse yet, our fundamental political principles, the natural rights enunciated in the Declaration of Independence, acquire no support from the “nature” described by the laws of physics and chemistry. The “nature” of the physicists, to say the least, offers no ground for rights, let alone for the belief that we have these rights as endowments from our Creator. Further, in biology, the teachings of evolution seem to deny to human beings any special place in the whole. And when, encouraged by these teachings, the project to relieve man’s estate through mastery and possession of nature approaches making fundamental alterations in human nature itself, Americans—everyone—must begin to wonder whether the goals and presuppositions of the entire venture are sound and even whether modern science’s notions of knowledge and nature are simply and unqualifiedly true.
Curiously, the recent Supreme Court decision in the Chakrabarty case points up all these difficulties, notwithstanding the narrow question it decided and the limited character of its holding. Various commentators have raised broader questions about the meaning of the Chakrabarty decision and its consequences: questions about the desirability of genetic engineering, about the dangers of the further commercialization of science, and about the propriety of owning an entire living species. By examining each of these questions, we shall be led to discover some of the limitations of the contract between modern science and the American polity, as it is embodied in our patent law.
First: does the protection of private rights and interests in new discoveries and inventions always serve the public good? Is the awarding of patents always in the public interest? The answer to these questions necessarily turns, in any given case, on the nature of the particular discovery and invention. More generally, it turns on the question, Is progress or technical innovation always in the public interest? If the innovations are simply or largely beneficial, their encouragement through award of patents would still reflect harmony between private interest and common good. But what about dangerous discoveries and inventions? Does the community serve its best interests when it stimulates their development through patent grants? Might not even the publication of the existence of the dangerous invention prove harmful to the public interest? What is the American polity’s remedy for this problem of dangerous innovation?
Genetic engineering is regarded by many as just such a dangerous technology, and one posing no ordinary dangers. For in human genetic engineering, the previous beneficiary of the power to alter nature becomes himself subject to that power and those alterations. The power to engineer the engineer sharply raises questions about the meaning and limits of progress.
It was, I am sure, concerns about the dangers of genetic engineering, especially human genetic engineering, that gave the Chakrabarty case such wide interest. In argument before the Supreme Court, grave risks allegedly associated with genetic manipulation were cited as a reason why patent should be denied. The majority opinion states:
We are told that genetic research and related technological developments may spread pollution and disease, that it may result in a loss of genetic diversity, and that its practice may tend to depreciate the value of human life.
These opinions were advanced and are held by reputable scientists, among others, whose concerns range from fears about new biohazards to doubts about our possessing the wisdom requisite to redesign human genes or to interfere designedly in the course of evolution. There is, to be sure, much disagreement about the degree to which these fears and doubts are warranted, but there is no doubt that the matters at stake are serious. The Court indeed acknowledged the seriousness of such considerations, but held them nonetheless irrelevant to its decision, partly on the ground that its negative decision would not prevent such research, partly on the ground that it lacked the competence or the constitutional authority to decide how much and what kind of genetic research our society should foster.
The Court’s judgment seems to me to be sound. Under our Constitution, it is for the legislature to decide such questions, and the Courts ought not to rewrite the rules. Further, denial of individual patent applications seems a poor way for society to decide questions about allegedly dangerous research and technology. Yet this very fact calls attention to a defect in the relation between science and society, insofar as that relation is largely defined by or exemplified in the contract of the patent laws. The patent laws assume that innovations proposed by inventors are, because innovative and useful to some, simply good for the community at large. Instituted well before many people recognized the communal price everyone pays for certain kinds of technological change, they reflect a once little-questioned faith in progress. Thus, as they are instruments for encouraging innovation, they are poorly designed for regulating or controlling it. It is no surprise that the mechanism for making the individual horses run turns out to be incapable of slowing them down, should one later discover that, as a team, they are in danger of running away with the rider.
And yet one wonders. The Court says, “Whether respondent’s claims are patentable may determine whether research efforts are accelerated by the hope of reward or slowed by the want of incentives, but that is all” (emphasis added). But that “all” is not nothing. True, something unpatentable could still be legal and profitable; one cannot assume that lack of a patent will prevent development. Nevertheless, the awarding of patents is a communal hand on the throttle, a gentle hand to be sure, but by no means ineffective. Further, it is, as it happens, a hand less threatening to science than the legislative power to prohibit and make illegal. Moreover, one might argue that, in the statutory criterion of utility, the Patent Office has been given the power, indeed the duty, to judge the social merits of a given invention in deciding whether to encourage its development. According to the patent laws, only useful inventions may be patented, and rightly so, if some usefulness to the public good is society’s share of the patenting contract. Though it is generally sound to believe that fueling private incentives serves the public good, allowing the market to decide “usefulness,” this is notoriously not always the case (especially if by “public good” we mean more than economic growth).
How does the Patent Office understand “the useful”? In general, its presumption being to favor development, any definable “use” is sufficient. But is this always sound? How should it judge the usefulness of a manufacture that has obvious and likely misuses and abuses, along with some clear and well-defined use? For example, how should it judge the usefulness of a perfected pleasure drug, admittedly beneficial in the treatment of depression, but almost certainly subject to widespread social or political abuse? What about improved devices for subliminal advertising? Or new and improved miniature recording and photographic devices that would no doubt increase snooping and invasions of privacy? Should the inventor of selective spermicides and his financial backers be able to decide by patenting that our society should be able to practice sex-selection of offspring?
One would think that a well-developed and nuanced doctrine of “utility” might already be embodied in court decisions involving patent claims. But a brief survey of the legal literature shows otherwise. True, precedent denies patentable “utility” to inventions whose contemplated use is for purposes deemed illegal or immoral (bogus coin detectors for slot machines, for example) or which always cause bodily harm to the user when used in the intended manner (for example, a drug effective against depression but toxic to the point of lethality). “A composition unsafe for use by reason of extreme toxicity to point of immediate death under all conditions of its sole contemplated use in treating disease of human organisms would not be ‘useful’ within the meaning of patent laws” (emphasis added) is the limited, almost grudging, concession to such considerations made by the United States Court of Customs and Patent Appeals, in a well-known case, Application of Anthony. In that case (1969), the Court in fact argued that, short of such uniform catastrophe, safety as an ingredient of utility is a relative matter, and overruled the U.S. Patent Office which had denied patent for an anti-depressant drug, Monase, a drug voluntarily taken off the commercial market by its manufacturers because of a dozen fatalities reported among its many users.
Commenting in a footnote on the more general question of social harm from inventions capable of affecting public morals, health, and order, the Court in Anthony endorses a turn-of-the-century U.S. Circuit Court opinion (Fuller v. Berger et al.): an invention is “useful within the meaning of the law, if it is used (or is designed and adapted to be used) to accomplish a good result, though in fact it is oftener used (or is as well or even better adapted to be used) to accomplish a bad one.”2
During the 1960’s this doctrine—that likely abuse does not negate use—caused some embarrassment to the Patent Office, indeed, as a consequence of its function as publicist. A patent had been earlier awarded for LSD, shortly before its hallucinogenic properties were known. When the drug found its way into street use, the Patent Office helped a whole generation learn how to manufacture it, being obliged to divulge the details of its chemical synthesis to anyone who requested them. The Patent Office did so until the supply of printed matter about LSD was exhausted.
Perhaps such precedents reflect our long-standing and naive belief in the beneficence, or at least the innocence, of all innovation. Would a similar court today allow a patent for Monase, for the Colt revolver, or for LSD? Perhaps the future might bring us a more complex and refined doctrine of utility, one which was willing to make balancing judgments in protecting the public’s side of the contract. But, at least for now, it seems that any licit and non-lethal “use” suffices for the statutory test of “utility,” all likely abuses notwithstanding. Under these circumstances, our second thoughts confirm our first: the Court in Chakrabarty was right in not allowing concerns about the possible dangers of genetic engineering to influence its decision.
If patent decisions do not and cannot consider these broad questions of use and possible abuse, if restriction of patents is an inappropriate mechanism for setting the pace in the realm of potentially dangerous technologies, the contract between science and society needs additional clauses. To be sure, many already exist—e.g., Regulations of the Food and Drug Administration, Guidelines for the Use of Human Subjects in Research, etc. Yet most of these regulations deal only with questions of health and safety. We have few means of assessing and regulating with regard to the massive consequences of new technologies to our mores, institutions, and ways of life. With the vast powers, now being accumulated, that would bring the mastery of nature to bear on human nature itself, some have begun to wonder whether the simply permissive contract between innovators and society needs to be renegotiated.
Such a response seems to me excessive. We have, and will continue to have, a commitment to scientific and technological progress. We have reason to expect that the social and political results of such progress will continue to be largely beneficial, and that the union of science and politics cemented by the patent laws will continue to serve us well. It would be foolish to dismantle our instruments of progress just because they require some additional devices and mechanisms. It would be foolish to shackle our accelerator just because it does not function as a brake. The difficult question—one which we have only begun to face—is what kinds of political arrangements and institutions are best suited to reviewing the direction and pace of certain “dangerous” developments and to applying the brakes, if necessary. One thing seems clear: the responsibility lies with the legislature. Courts may raise questions about the need for brakes, but it must be Congress that applies them. How to do so is, of course, the difficult question. The task of inventing suitable braking mechanisms will require even more ingenuity than the invention of the patent laws. We are all aware of the serious risks and costs of governmental regulation. Yet unless some means of control are found for those technologies reasonably regarded as potentially dangerous to the public interest— and, for the long run, who can be certain about genetic engineering?—the motives of gain, when added to ingenuity and stimulated by patent protection, are likely to subvert the common good. With big money fanning the flames—consider the difficulties in regulating the tobacco or automobile industries—the fire of innovation could be out of control before anyone gets warm enough to worry.
We have argued that the job of brakeman does not belong to the Courts. But it does not follow that the Courts should be free to remove or revise brakes applied by the legislature. The Court should be neither the partisan nor the opponent of progress; it is, instead, the guardian of law and, implicitly, a teacher of law-abidingness. The Court in Chakrabarty rightly resisted encroaching upon the legislative domain in refusing to become society’s arbiter regarding genetic engineering; but how well did it discharge its own task of guarding the law? An examination of the decision reveals that the Court showed itself partial to progress, with the so-called conservative members leading the way.
The Court was asked to decide not whether living organisms ought to be, but only whether they are patentable matter, as this is defined by statute. The relevant portion of the patent law (32 United States Code §101) provides:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the condition and requirements of this title.
To decide affirmatively, the Court majority had to construe both the novel microorganism and the operative clause in the statute, which defines patentable matter as “any new and useful process, machine, manufacture, or composition of matter,” such that a living bacterium could be understood to be either a “manufacture” or a “composition of matter” or both; the Court minority argued that “manufacture” or “composition of matter” were not intended by Congress to encompass living organisms. Though the majority opinion does not directly argue that the microorganism in question is, say, a composition—i.e., a putting together—of matter, it treats its aliveness as irrelevant to its patentability. It ignores altogether the nature of the object, arguing: “In choosing such expansive terms as ‘manufacture’ and ‘composition of matter,’ modified by the comprehensive ‘any,’ Congress plainly contemplated that the patent laws would be given wide scope.” Finally, the Court argues that novelty, utility, and the fact that Chakrabarty’s discovery “is not nature’s handiwork but his own” render the bacterium patentable subject matter and Chakrabarty and General Electric the proud owners of “his” new species.
I happen to think the Court opinion mistaken in its reading of the statute. The terms “manufacture” and “composition of matter” go back to Jefferson’s 1793 patent law, and Congress has retained them without change in all subsequent revisions. (In another category of patentable matter, when Congress became dissatisfied with Jefferson’s concepts, it replaced his term: the present “process” is a replacement for Jefferson’s “art.”) Did Jefferson regard a living organism as a mere “composition of matter”? Certainly, in the ordinary sense of these terms, no one should. The majority goes too far in extrapolating from its correct belief that Congress “contemplated that the patent laws would be given wide scope.” It sustains the opinion that Congress intends statutory subject matter to “include anything under the sun made by man.” But if so, why did Congress in fact make and preserve categorical distinctions among the kinds of patentable man-made things—“processes, machines, manufactures, and compositions of matter”—distinctions that would be unnecessary if “anything under the sun,” so long as of artificial origin, were the sufficient mark of patentable matter—of course, along with novelty, utility, and non-obviousness? And why, the minority rightly asks, would Congress enact separate plant patent laws (in 1930 and again in 1970) to permit patenting of new plant varieties, if Congress understood “manufacture” and “composition of matter” as broadly as the Court majority now claims? Indeed, as the minority again points out, in the 1970 Plant Patent Act Congress had specifically excluded bacteria from patentability under the Act: “Congress has included bacteria within the focus of its legislative concern, but not within the scope of patent protection. . . . Congress, assuming that animate objects as to which it had not specifically legislated could not be patented, excluded bacteria from the set of patentable organisms.”
The Court majority ignored these specific facts about the written statutes. It took its stand instead on what it calls the “broad general language” of the patent laws and on its own construction of the legislative intent: “The subject-matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting ‘the Progress of Science and useful Arts’ with all that means for the social and economic benefits envisioned by Jefferson.” It is an insult to Jefferson to suggest that his friendship for progress made him imprecise and vague as a legislator. He said what he meant and he meant what he said, always careful about his choice of words. Courts would do less mischief if they treated all law and legislatures as if they meant what they in fact explicitly said. The present Court’s love of innovation extends to its reading of law. We must wonder whether such “progressive” jurisprudence is not too high a price for progress.
If patenting and the patent laws do not always serve the public or political good, are they simply good for science? As we shall see, this is best understood as a special case of the question, Is practice always good for theory?, and it ultimately invites us to reconsider the purposes of science and of thought more generally. But nearer at hand are questions about science and money.
The Chakrabarty decision has prompted discussion about possible corrupting tendencies of the profit motive, not so much for the society at large, but, curiously, for the present practice of biological science, especially in universities. For roughly a quarter-century, biomedical research has flourished, largely funded by the federal government and philanthropic foundations, much of it done in universities. Though ultimately interested in the practical benefits, the government, albeit not without frequent prodding by basic scientists, has wisely and patiently supported many outstanding minds in so-called basic research, largely without regard to its immediate utility. Progress over the past three decades is simply staggering. Though competition is keen, and there are well-known cases of secretive and even unscrupulous behavior, on the whole the field has thrived on free and cooperative exchange of information and materials, including strains of microorganisms.
Now that new discoveries and techniques in cell biology and molecular genetics have brought these fields fully into the industrial area, many are worried that the profit motive will distort, not to say corrupt, scientific practices. Concerns are expressed for the effects on the behavior of scientists, on the balance in fields of research, and on universities. Warnings are heard about an impending restriction of the free flow of information and a rise of secretiveness, deception, and other unsavory conduct, not excluding espionage. Others are concerned that profits will dictate the direction of scientific research, deflecting the scientific mind from going where it will or should. With several universities, under threat of rising costs and dwindling financial support, already established entrepreneurs in genetic technology, and many fine scientists entering industry in a variety of capacities, often retaining their academic tenure, there is argument that such goings-on in principle violate the spirit and will in practice threaten the purpose of the university.
These are serious and complicated questions which cannot be addressed adequately here. On some matters the concerns seem exaggerated. The rise of industrial chemistry and applied physics has not in itself, it seems to me, corrupted basic research in universities, nor led to undue secrecy or unsavory practices. And in any case, such problems as appear are due more to the large amounts of money involved than to patenting (though the two are not unrelated). For the need to protect profitable discoveries through patent should lead not to secrecy, but to publication (though the anticipation of future patent application does lead many into temporary secrecy, and reports are now increasing of biologists who, looking to protect future patents, have become silent and stingy with new information and materials). Once a patent is granted, for a payment of royalties new information, materials, and techniques are potentially more widely sharable. Moreover, the disdain of many academic biologists for the practical applications of their work can only be regarded as hypocritical, especially considering the hopes of, and their promises to, their public patrons. Academic scientists have for years played upon the public’s utilitarian concerns and always promised and even emphasized the probable long-run practical benefits when seeking congressional support to satisfy their own private curiosity. Science, even university science, is, to some extent, a kept woman, and the question sometimes seems to be only who shall keep her and what is her price. Her virtue and her fruitfulness may not suffer further from wedding herself to industry.
But this is no matter for levity; the stakes are very high. There is reason to be concerned about the growth of the academic-industrial complex, but not because industry is corrupt or corrupting or because there is something reprehensible about utility or even money-making. Rather, one is concerned because one knows that universities exist not only to generate useful discoveries and because one suspects that knowledge for the sake of power and utility is not the whole truth about knowledge, that thought at its best—including scientific thought—seeks truth for its own sake. For these reasons, we can ill afford to be indifferent to the fate and character of university science and to the climate for free and fundamental thought. The remarkable record of American scientists in basic discovery in biology is a credit to public support and especially to the university setting, with its great freedom of inquiry and its relative immunity to demands for prompt success or useful results. Here, fundamental thought is frequently stimulated by the collegiality of scholars in diverse areas of inquiry, scholars who are also teachers, somehow still heirs to a great tradition that often gave more than lip-service to the disinterested pursuit of the truth. Professors are often pushed to fundamentals also by their undergraduate students, who are not yet sufficiently “educated” to know that there are some questions one should avoid asking. One wonders how theory will fare if the universities are increasingly drawn to practice. One wonders whether the search for the truth will flourish, should the universities and their scientists try to be increasingly relevant and useful.
Though largely unanticipated by the American Founders, the rise of universities and of science within them has added a new dimension to the original relation between science and politics, a dimension that acquisitive, democratic, and egalitarian regimes very much require. The point was made brilliantly by Tocqueville, in his Democracy in America, in the chapter, “Why the Americans are More Concerned with the Applications than with the Theory of Science”:
The higher sciences or the higher parts of all sciences require meditation above everything else. But nothing is less conducive to meditation than the setup of democratic society. . . . Everyone is on the move, some in quest of power, others of gain. In the midst of this universal tumult, this incessant conflict of jarring interests, this endless chase for wealth, where is one to find the calm for the profound researches of the intellect? How can the mind dwell on any single subject when all around is on the move and when one is himself swept and buffeted along by the whirling current which carries all before it?
Not only is meditation difficult for men in democracies, but they naturally attach little importance to it. . . . In democratic countries when almost everyone is engaged in active life, the darting speed of a quick, superficial mind is at a premium, while slow deep thought is excessively undervalued. . . .
Most of the people in these [democratic] nations are extremely eager in the pursuit of immediate material pleasures and are always discontented with the position they occupy and always free to leave it. They think about nothing but ways of changing their lot and bettering it. For people in this frame of mind every new way of getting wealth more quickly, every machine which lessens work, every means of diminishing the costs of production, every invention which makes pleasures easier or greater, seems the most magnificent accomplishment of the human mind. It is chiefly from this line of approach that democratic peoples come to study sciences, to understand them, and to value them. In aristocratic ages the chief function of science is to give pleasure to the mind, but in democratic ages to the body.
. . . It is easy to see how, in a society organized on these lines, men’s minds are unconsciously led to neglect theory and devote an unparalleled amount of energy to the applications of science. . . .
On the strength of this analysis, Tocqueville gives this advice:
If those who are called on to direct the affairs of nations in our time can clearly and in good time understand these new tendencies which will soon be irresistible, they will see that, granted enlightenment and liberty, people living in a democratic age are quite certain to bring the industrial side of science to perfection anyhow and that henceforth the whole energy of organized society should be directed to the support of higher studies and the fostering of a passion for pure science.
Nowadays the need is to keep men interested in theory. They will look after the practical side of things for themselves. So, instead of perpetually concentrating attention on the minute examination of secondary effects, it is good to distract it therefrom sometimes and lift it to the contemplation of first causes. . . .
We therefore should not console ourselves by thinking that the barbarians are still a long way off. Some people may let the torch be snatched from their hands, but others stamp it out themselves.
I do not wish to exaggerate the dangers to pure science or to universities from the new privilege to patent microorganisms, hybridomas, and products of genetic engineering. Nor, unfortunately, are universities or academic scientists today the embodiment of thoughtfulness and disinterested inquiry that Tocqueville rightly argues we so urgently need. But the climate is not being helped by the eruption among scientists and administrators of what must frankly be called greed, nor is it likely to be improved by the continuing growth of the academic-industrial complex. When the president of Harvard University devotes his entire annual address to his Board of Overseers to the theme of “technology transfer”—the translation of scientific knowledge into useful products and processes—and argues that it must become a central task of the university, one has reason to believe that big winds may soon blow the academy off its present course.
American universities are, for all their faults, precious and precarious institutions. In fact, the present balance within them between the busy and the deliberate, the clever and the wise, the useful and the true, is already tipped so far toward the former that we must be cautious about all further changes that tend to diminish the latter. It should now be evident that my concern for universities and for theory and fundamental thought goes beyond my concern for so-called pure science. The earlier discussion should have made clear the importance of careful and thorough thinking about the relation between science and the American polity and about the implications of our new forays into genetic engineering. Indeed, especially now, when the goal and direction of the scientific project for the mastery of nature seem less clear than ever, and when, despite this confusion about the end, the means are being amassed to affect directly and deliberately all forms of life on the planet, we stand in urgent need of the far-seeking and high-minded reflection about science, ethics, and society which the patent laws, industry, and even such fine institutions as the National Institutes of Health cannot encourage or foster.
But theory is urgent not only because basic research pays dividends in applications, nor even because we need theory to think about whither we are tending. Theory is urgent also because it is in itself elevating and liberating. Thoughtfulness, speculation, genuine inquiry beyond mere problem-solving, philosophical reflection on our condition and our place in the world, in short, liberal learning and liberal education—and not only the advancement of Baconian learning—are necessary for a truly free people. Liberty, secured by the progress of science and useful arts, would be little blessed if our minds become enslaved in and to the process of serving our bodies.
Once again, the task is to restore the balance, to give weight to the weaker side. And once again, it is difficult to see how and by whom the countervailing forces for liberal learning and philosophic reflection are to be generated and supported, especially now when economic troubles aggravate the natural tendency of modern thought to serve utility.
The task is beyond the competence both of our science, not least because of its anti-speculative self-definition, and of our law. No one would say that the practice or encouragement of philosophical reflection is the business of our courts. But, at the same time, it is sad when the Supreme Court, the closest approximation in the American polity to the rule of thoughtful reason, promulgates ill-considered opinions about weighty matters. For in justifying its decisions, the Court functions also as a teacher, helping to form what become our ruling opinions. Indeed, the opinions of the Court are often more important for what they teach than for what they decide. We take one last look at the Chakrabarty case, with a view to the Court as teacher.
What has the Chakrabarty decision accomplished? A rather modest gain for Chakrabarty, a rather sizable boost for the burgeoning hybridoma and genetic-technology industry, but—by means of negative example—a most important lesson, if only we can learn it, about how close we have come in our thinking, if not yet in our practice, to overstepping the sensible limits of the project for mastery and possession of nature. This project makes sense only if we fully understand and accept the limited meanings of “mastery” and “possession” and only if we appreciate the nature of living nature and our place within it. On these deep matters, the Court was here a teacher of shallowness.
Consider first the implicit teaching of our wise men, that a living organism is no more than a composition of matter, no different from the latest perfume or insecticide. What about other living organisms—goldfish, bald eagles, horses? What about human beings? Just compositions of matter? Here arise deep philosophical questions to which the Court has given little thought; but in its eagerness to serve innovation, it has, perhaps unwittingly, become the teacher of philosophical materialism—the view that all forms are but accidents of underlying matter, that matter is what truly is— and therewith, the teacher also of the homogeneity of the given world, and, at least in principle, of the absence of any special dignity in all of living nature, our own included.
A similar teaching is also implicit in the enlargement of the sphere of what may be owned and possessed. By the arguments of the Court, it now seems that anything under the sun made of tangible stuff falls under “composition of matter,” and is therefore patentable, so long as its origin is in human art. Nothing in the Court’s opinion would permit one to argue that the “inventor” of the mule, were the mule to be a new invention, could not claim patentability. If the Chinese succeed in their present attempts with artificial insemination to cross-breed a human being with a chimpanzee, producing the novel and useful “humanzee,” it would be arguably patentable matter—if the Court sticks to its interpretation and Congress does not act. These examples may be farfetched but they serve to illustrate the point: there is something obviously and immediately disquieting about the human ownership of an entire living species, even one brought into being with the partial aid of art.
This bizarre new prospect, that one man could own—albeit for a limited time—an entire species, does indeed invite us to rethink the reasons why we permit ownership of any animals. There is a sense in which the former is but the logical extension of the latter, both instances of the possession and exploitation of living nature for human needs and wants, and this logical extension as limiting case might in fact illuminate problematic aspects of our age-old and familiar practice of domesticating plants and animals. Still, there are significant differences which, though they do not fully explain our repugnance at the notion of owning a species, suggest that our disquiet is not due just to the novelty and audacity of the idea.
If usefulness justifies ownership, it also defines its justifiable limits. Ownership of animals, even of large herds, presupposes the usefulness of each animal to the owner. Even when animals are kept for their beauty or companionship, possession is reasonable only on a human scale, that is, on a scale that permits individual appreciation or relation. We do not endorse possession for the sake of possession: the thought of a man buying up and collecting all the world’s camels or giraffes or horses is repulsive, though nothing in the law prevents it. To own more of living nature than what one needs for one’s own life and livelihood is hard to justify. Even harder is it to justify such monopoly when the sole purpose is to exclude others from similar benefits.
Ownership also carries with it responsibility, not only for the living beings but also to other human beings for what the animals inadvertently do. Indeed, living things, unlike true artifacts, have a life of their own and ways that we cannot simply predict or control:
And if one man’s ox hurt another’s, so that it dieth; then they shall sell the live ox, and divide the price of it; and the dead also they shall divide. Or if it be known that the ox was wont to gore in time past, and its owner hath not kept it in; he shall surely pay ox for ox, and the dead beast shall be his own. (Exodus 21: 35-36)
Can one exercise responsibility for an entire species, especially species that reproduce prodigiously and are hard to confine? If one of Chakrabarty’s bacteria escaped from his laboratory, can he be held responsible for the mischief it causes? If Chakrabarty’s bacteria find their way into an oil well or an oil-storage tank, shall he pay drop for drop? For they were wont to gore in time past and the owner hath not kept them in. And (while thinking about fugitive bacteria) if one of Chakrabarty’s technicians going on vacation inadvertently carries—on his skin or clothing or in his digestive tract—one of the microbes from its laboratory confinement in Illinois to freedom in Missouri where it becomes fruitful and multiplies, must all the billions of progeny be returned to Illinois? Will the Supreme Court, in upholding Chakrabarty’s patent claims of ownership, write a new Dred-Scott decision?
Be this as it may, the implicit teaching about ownership of life in the present Supreme Court decision is indeed problematic. It is one thing to own a mule; it is another to own mule.3 Admittedly, bacteria are far away from mules. But the principles invoked, the reasoning, and the stance toward nature go all the way to mules, and beyond.
What is the principled limit to this beginning extension of the domain of private ownership and dominion over living nature? Is it not clear, if life is a continuum, that there are no visible or clear limits, once we admit living species under the principle of ownership? The principle used in Chakrabarty says that there is nothing in the nature of a being, no, not even in the human patenter himself, that makes him immune to being patented: not what he is, but only the “accident” of his non-man-made origin renders man himself a non-patentable organism. If a genetically engineered organism may be owned because it was genetically engineered, what would we conclude about a genetically altered or engineered human being? To be sure, in general it makes sense to allow people to own what they have made, because they have artfully made it. But to respect art without respect for life is finally self-contradictory. For human art depends on the human artificer, whose inventive mind depends on his living body, not only to sustain it that he might practice its cleverness, but also because the ends of his artfulness emerge from the inner needs and aspirations of his embodied life.
Finally, the exalted and mastering status of human art claims too much and too little for itself. It claims too much because it ignores that art can only put together or alter what natural powers beyond human control will allow. In the present case, our inventor even had nature’s active assistance; for it is not strictly true, as the Court claims, that “his discovery is not nature’s handiwork, but his own.” Chakrabarty did not himself create the new bacterium. Rather, he played the matchmaker for a shotgun wedding and the selector of its progeny, while the living organisms did the work. He mixed together plasmids (carrying genes for metabolizing hydrocarbons) produced by and isolated from certain oil-degrading bacterial species and incubated them with the hardier Pseudomonas species, which bacteria all by themselves incorporated the plasmids. By selecting conditions that would support growth only of the plasmid-containing Pseudomonas hybrid, Chakrabarty obtained “his” novel strain. Though the process was—in many senses—“creative” and “his own,” the novel organism was not his creature.
Even in true compositions of matter, that is, when chemicals are placed together to produce a new mixture or compound, nature is commanded only as she is obeyed. The potentialities of given matter may be exploited, but they cannot be artfully created. The laws of nature permit prediction and control of phenomena, but they too are not of our making and cannot be transgressed. One might say, what Nature’s God keeps asunder, no man can put together. Man’s ability to change nature is, in principle and in practice, always consistent with and limited by nature’s unchanging ground.
Ironically, in its pride, human innovativeness also respects itself too little, because it lacks self-understanding. It fails to appreciate its source in the permanent power of mind, given to human beings but not of their own making. Our inventiveness is not our invention; neither are the truths it discovers.
The Court acknowledges that “Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity.” The reason given is curious: “Such discoveries are manifestations of . . . nature, free to all men and reserved exclusively to none.” The Court fails to appreciate the deeper reason why a truth cannot be patented. Once it is published, it is sharable. To know it is to make it “your own.” But truth is “your own” in a very special way, unlike your other “possessions.” The greatest thinkers have understood that truths are neither private nor property, that they come unbidden to mind, mysteriously, and that insight is neither at one’s disposal nor of one’s own making. Homer, the greatest of the makers, assigns credit to the Muse. Finally, the claim of “intellectual property” is unfounded, even for “inventions.”
In the ever-changing being that is given to living organisms, the two poles of natural permanence—mobile matter and sensitive awareness, culminating in mind—are bound together. In human beings, living nature at last becomes conscious of itself. If we are sober in our practice and mindful in our thought, it is given to us human beings to learn our place in the natural whole and to discover something of its distinctive beauty and mysterious ground. Without such self-knowledge, the project for mastery and possession of nature is a Faustian bargain. Reacquiring a respect for our relatives, the ever-changing living forms, could regain for us a much needed recognition and appreciation of the natural and unchanging source of all change.
1 The Federalist's, explanation and defense of this provision, to which we shall refer again, comprises the following brief paragraph:
The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged in Great Britain to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provision for either of the cases, and most of them have anticipated the decision of this point by laws passed at the instance of Congress.
The fourth sentence seems to be a conclusion from the first three. Since the second and third deal with “claims of individuals,” we infer that the first considers “the public good.” It is worth noting that the extension of the common-law teaching on copyright to cover “the right to useful inventions” is treated here as an American innovation, albeit one that can be adjudged “with equal reason.”
2 The court opinion quotes at length from the still authoritative doctrine, formulated in his 1880's textbook of patent law by Albert Henry Walker, the court's own additions to his text being noted by parenthesis:
An important question, relevant to utility in this aspect, may hereafter arise and call for judicial decision. It is perhaps true, for example, that the invention of Colt's revolver was injurious to the morals, and injurious to the health, and injurious to the good order of society. That instrument of death may have been injurious to morals, in tending to tempt and to promote the gratification of private revenge. It may have been injurious to health, in that it is very liable to accidental discharge, and thereby to cause wounds, and even homicide. It may also have been injurious to good order, especially in the newer parts of the country, because it facilitates and increases private warfare among frontiersmen. On the other hand, the revolver, by furnishing a ready means of self-defense, may sometimes have promoted morals and health and good order. By what test is utility to be determined in such cases? Is it to be done by balancing the good functions with the evil functions? Or is everything useful within the meaning of the law, if it is used (or is designed and adapted to be used) to accomplish a good result, though in fact it is oftener used (or is as well, or even better, adapted to be used) to accomplish a bad one? Or is utility negatived by the mere fact that the thing in question is sometimes injurious to morals, or to health, or to good order? The third hypothesis cannot stand, because if it could, it would be fatal to patents for steam engines, dynamos, electric railroads, and indeed many of the noblest inventions of the nineteenth century. The first hypothesis cannot stand, because if it could, it would make the validity of the patents to depend on a question of fact to which it would often be impossible to give a reliable answer. The second, hypothesis is the only one which is consistent with the reason of the case, and with the practical construction which the courts have given to the statutory requirement of utility. (Emphasis added.)
Does the doctrine of utility enunciated in the emphasized passage truly serve the public interest? Are Walker's three options exhaustive? And is not even the first hypothesis, as stated, a plausible principle for at least those cases in which it would not be impossible to give a reliable answer to the balance between benefits and harms to the general welfare?
3 The argument should cause us to reconsider the wisdom of permitting ownership even of plant species, made possible by the plant patent laws of 1930 and 1970.
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Good intentions, tragic consequences.
Chicago, Illinois — Andy has little time to chitchat. There are hundreds of hot towels to sort and fold, and when that’s done, there are yet more to wash and dry. The 41-year-old is one of half a dozen laundry-room workers at Misericordia, a community for people with disabilities in the Windy City. He and his colleagues, all of whom are intellectually disabled and reside on the Misericordia “campus,” know that their work has purpose, and they delight in each task and every busy hour.
In addition to his job at the laundry room, Andy holds two others. “For two days I work at Sacred Heart”—a nearby Catholic school—“and at Target. Target is a store, a big super-store. At Sacred Heart, I sweep floors and tables.”
“Ah, so you’re the janitor there?” I follow up.
“No, no! I just clean. I love working there.”
Andy’s packed schedule is typical for the higher-functioning residents at Misericordia, many of whom juggle multiple jobs. Their work at Misericordia helps meet real community needs—laundry, recycling, gardening, cooking, baking, and so on—while preparing residents for the private labor market. Andy has already found competitive employment (at Target), but many others rely on Misericordia’s own programs to stay active and employed.
Yet if progressive lawmakers and minimum-wage crusaders have their way, many of these opportunities would disappear, along with the Depression-era law which makes them possible.
The law, Section 14(c) of the Fair Labor Standards Act, permits employers to pay people with disabilities a specialized wage based on their ability to perform various jobs. It thus encourages the hiring of the disabled while ensuring that they are paid a wage commensurate with their productivity. The law safeguards against abuse by, among other things, requiring employers to regularly review and adjust wages as disabled employees make productivity gains. Many of these employers are nonprofit entities that exist solely to provide meaningful work for the disabled.
Only 20 percent of Americans with disabilities participate in the labor force. The share is even smaller among those with intellectual and developmental disabilities. For this group, work isn’t mainly about money—most of the Misericordia residents are oblivious to how much they get paid—so much as it is about purpose and community. What the disabled seek from work is “the feeling of safety, the opportunity to work alongside friends, and an atmosphere of kindness and understanding,” says Scott Mendel, chairman of Together for Choice, which campaigns for freedom of choice for the disabled and their families. (Mendel’s daughter, who has cerebral palsy, lives and works at Misericordia.)
Abstract principles of economic justice, divorced from economic realities and the lived experience of people with disabilities, are a recipe for disaster in this area. Yet that’s the approach taken by too many progressives these days.
Last month, for example, seven Senate progressives led by Elizabeth Warren of Massachusetts wrote a letter to Labor Secretary Alexander Acosta denouncing Section 14(c) for setting “low expectations for workers with disabilities” and relegating them to “second-class” status. The senators also took issue with so-called sheltered workshops, like those at Misericordia, which are specifically designed to help the disabled find pathways to market employment. Activists at the state level, meanwhile, continue to press for the abolition of such programs, and they have already succeeded in restricting or limiting them in a number of jurisdictions, most notably in Pennsylvania, where such settings have been all but eliminated.
While there have been a few, notorious cases of 14(c) and sheltered-workshop abuse over the years, existing law provides mechanisms for punishing firms for misconduct. Getting rid of 14(c) and sheltered workshops, however, could potentially leave hundreds of thousands of disabled people unemployed. Activists have yet to explain what it is they expect these newly jobless to do with their time.
Competitive employment simply isn’t an option for many of the most disabled. And even those like Andy, who are employed in the private economy, tend to work at most 20 hours a week at their competitive jobs. What would they do with the rest of their time, if sheltered workshops didn’t exist? Most likely, they would “veg out” in front of a television. Squeezing 14(c) program and forcing private employers to pay minimum wage to workers whose productivity falls far short of the norm wouldn’t improve the lot of the disabled; it would leave them jobless.
Economic reality is reality no less for the disabled.
Nor have progressives accounted for the effects on the lives of the disabled in jurisdictions that have restricted sheltered workshops. “None of these states have done an adequate job of ascertaining whether these actions actually enhanced the quality of life for the individuals affected,” a study in the Social Improvement Journal concluded last year. Less time in sheltered workshops, the study found, “was not replaced with a corollary increase in the use of more integrated forms of employment.” Rather, “these individuals were essentially unemployed, engaging in made-up day activities.”
Make-work is not what Andy and his colleagues are up to today at Misericordia. They complete real tasks, which benefit their fellow residents in concrete ways. “This work is training, but it also gives them meaning,” one Misericordia director told me. “It’s not just doing meaningless work, but it’s going toward something. We’re not setting them up to do something that someone else takes apart. This is something that’s needed.” Yet, in the name of economic justice, progressives are on the verge of depriving men and women like Andy of the dignity of work and the freedom of choice that non-disabled Americans take for granted.
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Reminding voters what Democratic governance means.
To paraphrase New York Times columnist Ross Douthat (with apologies), the less Republicans do in office, the more popular they generally become. That is, when the GOP exists solely in voters’ minds as a bulwark against cultural and political liberalism, it can cobble together a winning coalition. Likewise, Democrats regain the national trust when they serve only as an obstacle to Republican objectives. It’s when both parties begin to talk about what they want to do with their power that they get into trouble.
That is an over-simplification, but the core thesis is an astute one. In an age of negative partisanship and without an acute foreign or domestic crisis to focus the national mind, it’s not unreasonable to presume that both parties’ chief value is defined in negative terms by the public. Considering how little of the national dialogue has to do with policy these days, general principles and heuristics are probably how most marginal voters navigate the political environment.
Somewhere along the way, though, Democrats managed to convince themselves that they cannot just be the anti-Donald Trump party. Their most influential members have become convinced that the party needs to articulate a positive agenda beyond a set of vague principles. For the moment, Democrats who merely want to present themselves as unobjectionable alternatives to Trumpism without going into much broader detail appear to be losing the argument.
According to a study of campaign-season advertisements released on Friday by the USA Today Network and conducted by Kantar Media’s Campaign Marketing Analysis Group, Democrats are not leaning into their opposition to Trump. While over 44,000 pro-Trump advertisements from Republican candidates have aired on local broadcast networks, only about 20,000 Democratic ads have highlighted a candidate’s anti-Trump bona fides. “Trump has been mentioned in 27 [percent] of Democratic ads for Congress, overwhelmingly in a negative light,” the study revealed. In the same period during the 2014 midterm election cycle, by contrast, 60 percent of Republican advertisements featured President Barack Obama in a negative light.
There are plenty of caveats that should prevent observers from drawing too many broad conclusions about what this means. First, comparing the political environment in 2018 to 2014 is apples and oranges. Recall that 2014 was Barack Obama’s second midterm election, so naturally enthusiasm among the incumbent party’s base to rally to the president’s defense wanes while the “out-party’s” anxiety over the incumbent president grows. If Donald Trump’s job-approval rating is still anemic in September, it is reasonable to expect that Republican candidates will soft-peddle their support for the president just as Democrats did in 2010. Second, Democrats running against Democrats in a Democratic primary race may not feel the need to emphasize their opposition to the president, since that doesn’t create a stark enough contrast with their opponent.
And yet, the net effect of the primary season is the same. Democrats aren’t just informing voters of their opposition to how Trump and the Republican Party have managed the nation’s affairs; they’re describing what they would do differently. By and large, the Democratic Party’s agenda consists of “doubling” spending on social-welfare programs, education, and infrastructure, and promising a series of five-year-plan prestige projects. But Democratic candidates are also leaning heavily into divisive social issues.
The themes that Democratic ads have embraced so far range from support for new gun-control measures (“f*** the NRA,” was one New Mexico candidate’s message), to protecting public funding for Planned Parenthood, to promoting support for same-sex marriage rights, to attacking Sinclair Broadcasting (which happened to own the network on which that particular ad ran). A number of Democratic candidates are running on their support for a single-payer health-care system, including the progressive candidate in Nebraska’s GOP-leaning 2nd Congressional District who narrowly defeated an establishment-backed former House member this week, putting that seat farther out of the reach of Democrats in November.
In the end, messages like these animate the Democratic Party’s progressive base, but they have the potential to alienate swing voters. That may not be enough to overcome the electorate’s tendency to reward the “out-party” in a president’s first midterm election. And yet, the risk Democrats run by being specific about what they actually want to do with renewed political power cannot be dismissed. Democrats in the activist base are convinced that embracing conflict-ridden identity politics is a moral imperative, and the party’s establishmentarian leaders appear to believe that being anti-Trump is not enough to ensure the party’s success in November. All the while, the Democratic Party’s position in the polls continues to deteriorate.
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Meritocracy is in the eye of the beholder.
A running theme in Jonah Goldberg’s fantastic new book, Suicide of the West, is the extent to which those who were bequeathed the blessings associated with classically liberal capitalist models of governance are cursed with crippling insecurity. Western economic and political advancement has followed a consistently upward trajectory, albeit in fits and starts. Yet, the chief beneficiaries of this unprecedented prosperity seem unaware of that fact. In boom or bust, the verdict of many in the prosperous West remains the same: the capitalist model is flawed and failing.
Capitalism’s detractors are as likely to denounce the exploitative nature of free markets during a downturn as they are to lament the displacement and disorientation that follows when the economy roars. The bottom line is static; only the emphasis changes. Though this tendency is a bipartisan one, capitalism’s skeptics are still more at home on the left. With the lingering effects of the Great Recession all but behind us, the liberal argument against capitalism’s excesses has shifted from mitigating the effects on low-skilled workers to warnings about the pernicious effects of prosperity.
Matthew Stewart’s expansive piece in The Atlantic this month is a valuable addition to the genre. In it, Stewart attacks the rise of a permanent aristocracy resulting from the plague of “income inequality,” but his argument is not a recitation of the Democratic Party’s 2012 election themes. It isn’t just the mythic “1 percent,” (or, in the author’s estimation, the “top 0.1 percent”) but the top 9.9 percent that has not only accrued unearned benefits from capitalist society but has fixed the system to ensure that those benefits are hereditary.
Stewart laments the rise of a new Gilded Age in America, which is anecdotally exemplified by his own comfort and prosperity—a spoil he appears to view as plunder stolen from the blue-collar service providers he regularly patronizes. You see, he is a member of a new aristocracy, which leverages its economic and social capital to wall itself off from the rest of the world and preserves its influence. He and those like him have “mastered the old trick of consolidating wealth and passing privilege along at the expense of other people’s children.” This corruption and Stewart’s insecurity is, he contends, a product of consumerism. “The traditional story of economic growth in America has been one of arriving, building, inviting friends, and building some more,” Stewart wrote. “The story we’re writing looks more like one of slamming doors shut behind us and slowly suffocating under a mass of commercial-grade kitchen appliances.”
Though he diverges from the kind of scientistic Marxism reanimated by Thomas Piketty, Stewart nevertheless appeals to some familiar Soviet-style dialectical materialism. “Inequality necessarily entrenches itself through other, nonfinancial, intrinsically invidious forms of wealth and power,” he wrote. “We use these other forms of capital to project our advantages into life itself.” In this way, Stewart can have it all. The privilege enjoyed by the aristocracy is a symptom of Western capitalism’s sickness, but so, too, are the advantages bestowed on the underprivileged. Affirmative action programs in schools, for example, function in part to “indulge rich people in the belief that their college is open to all on the basis of merit.”
It goes on like this for another 13,000 words and, thus, has the strategic advantage of being impervious to a comprehensive rebuttal outside of a book. Stewart does make some valuable observations about entrenched interests, noxious rent-seekers, and the perils of empowering the state to pick economic winners and losers. Where his argument runs aground is his claim that meritocracy in America is an illusion. Capitalism is, he says, a brutal zero-sum game in which true advancement is rendered unattainable by unseen forces is a foundational plank of the liberal American ethos. This is not new. Not new at all.
Much of Stewart’s thesis can be found in a 2004 report in The Economist, which alleges that the American upper-middle-class has created a set of “sticky” conditions that preserve their status and result in what Teddy Roosevelt warned could become an American version of a “hereditary aristocracy.” In 2013, the American economist Joseph Stiglitz warned that the American dream is dead, and the notion that the United States is a place of opportunity is a myth. “Since capitalism required losers, the myth of the melting pot was necessary to promote the belief in individual mobility through hard work and competition,” read a line from a 1973 edition of a National Council for the Social Studies-issued handbook for teachers. The Southern Poverty Law Center, which for some reason produces a curriculum for teachers, has long recommended that educators advise students poverty is a result of systemic factors and not individual choices. Even today, a cottage industry has arisen around the notion that Western largess is decadence, that meritocracy is a myth, and that arguments to the contrary are acts of subversion.
The belief that American meritocracy is a myth persists despite wildly dynamic conditions on the ground. As the Brookings Institution noted, 60 percent of employed black women in 1940 worked as household servants, compared with just 2.2 percent today. In between 1940 and 1970, “black men cut the income gap by about a third,” wrote Abigail and Stephan Thernstrom in 1998. The black professional class, ranging from doctors to university lecturers, exploded in the latter half of the 20th Century, as did African-American home ownership and life expectancy rates. The African-American story is not unique. The average American income in 1990 was just $23,730 annually. Today, it’s $58,700—a figure that well outpaces inflation and that outstrips most of the developed world. The American middle-class is doing just fine, but that experience has not come at the expense of Americans at or near the poverty line. As the economic recovery began to take hold in 2014, poverty rates declined precipitously across the board, though that effect was more keenly felt by minority groups which recovered at faster rates than their white counterparts.
As National Review’s Max Bloom pointed out last year, 13 of the world’s top 25 universities and 21 of the world’s 50 largest universities are located in America. The United States attracts substantial foreign investment, inflating America’s much-misunderstood trade deficit. The influx of foreign immigrants and legal permanent residents streaming into America looking to take advantage of its meritocratic system rivals or exceeds immigration rates at the turn of the 20th Century. You could be forgiven for concluding that American meritocracy is self-evident to all who have not been informed of the general liberal consensus. Indeed, according to an October 2016 essay in The Atlantic by Victor Tan Chen, the United States so “fetishizes” meritocracy that it has become “exhausting” and ultimately “harmful” to its “egalitarian ideals.”
Stewart is not wrong that there has been a notable decline in economic mobility in this decade. That condition is attributable to many factors, ranging from the collapse of the mortgage market to the erosion of the nuclear family among lower-to middle-class Americans (a charge supported by none-too-conservative venues like the New York Times and the Brookings Institution). But Mr. Stewart will surely rejoice in the discovery that downward economic mobility is alive and well among the upper class. National Review’s Kevin Williamson observed in March of this year that the Forbes billionaires list includes remarkably few heirs to old money. “According to the Bureau of Labor Statistics, inherited wealth accounts for about 15 percent of the assets of the wealthiest Americans,” he wrote. Moreover, that list is not static; it churns, and that churn is reflective of America’s economic dynamism. In 2017, for example, “hedge fund managers have been displaced over the last two years not only by technology billionaires but by a fish stick king, meat processor, vodka distiller, ice tea brewer and hair care products peddler.”
There is plenty to be said in favor of America’s efforts to achieve meritocracy, imperfect as those efforts may be. But so few seem to be touting them, preferring instead to peddle the idea that the ideal of success in America is a hollow simulacrum designed to fool its citizens into toiling toward no discernable end. Stewart’s piece is a fine addition to a saturated marketplace in which consumers are desperate to reward purveyors of bad news. Here’s to his success.
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An immigrant from Italy, Morais had taught himself English utilizing the King James Bible. Few Americans spoke in this manner, including Abraham Lincoln. Three days later, the president himself reflected before an audience: “How long ago is it?—eighty-odd years—since on the Fourth of July for the first time in the history of the world a nation by its representatives assembled and declared as a self-evident truth that ‘all men are created equal.’” Only several months later, at the dedication of the Gettysburg cemetery, would Lincoln refer to the birth of our nation in Morais’s manner, making “four score and seven years ago” one of the most famous phrases in the English language and thereby endowing his address with a prophetic tenor and scriptural quality.
This has led historians, including Jonathan Sarna and Marc Saperstein, to suggest that Lincoln may have read Morais’s sermon, which had been widely circulated. Whether or not this was so, the Gettysburg address parallels Morais’s remarks in that it, too, joins mourning for the fallen with a recognition of American independence, allowing those who had died to define our appreciation for the day that our “forefathers brought forth a new nation conceived in liberty.” Lincoln’s words stressed that a nation must always link civic celebration of its independence with the lives given on its behalf. Visiting the cemetery at Gettysburg, he argued, requires us to dedicate ourselves to the unfinished work that “they who fought here have thus far so nobly advanced.” He went on: “From these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion,” thereby ensuring that “these dead shall not have died in vain.”
The literary link between Morais’s recalling of Jerusalem and Lincoln’s Gettysburg Address makes it all the more striking that it is the Jews of today’s Judea who make manifest the lessons of Lincoln’s words. Just as the battle of Gettysburg concluded on July 3, Israelis hold their Memorial Day commemorations on the day before their Independence Day celebrations. On the morning of the Fourth of Iyar, a siren sounds throughout the land, with all pausing their everyday activities in reverent memory of those who had died. There are few more stunning images of Israel today than those of highways on which thousands of cars grind to a halt, all travelers standing at the roadside, and all heads bowing in commemoration. Throughout the day, cemeteries are visited by the family members of those lost. Only in the evening does the somber Yom Hazikaron give way to the joy of the Fifth of Iyar’s Yom Ha’atzmaut, Independence Day. For anyone who has experienced it, the two days define each other. Those assembled in Israel’s cemeteries facing the unbearable loss of loved ones do so in the knowledge that it is the sacrifice of their beloved family members that make the next day’s celebration of independence possible. And the celebration of independence is begun with the acknowledgement by millions of citizens that those who lie in those cemeteries, who gave “their last full measure of devotion,” obligate the living to ensure that the dead did not die in vain.
The American version of Memorial Day, like the Gettysburg Address itself, began as a means of decorating and honoring the graves of Civil War dead. It is unconnected to the Fourth of July, which takes place five weeks later. Both holidays are observed by many (though not all) Americans as escapes from work, and too few ponder the link between the sacrifice of American dead and the freedom that we the living enjoy. There is thus no denying that the Israelis’ insistence on linking their Independence Day celebration with their Memorial Day is not only more appropriate; it is more American, a truer fulfillment of Lincoln’s message at Gettysburg.
In studying the Hebrew calendar of 1776, I was struck by the fact that the original Fourth of July, like that of 1863, fell on the 17th of Tammuz. It is, perhaps, another reminder that Gettysburg and America’s birth must always be joined in our minds, and linked in our civic observance. It is, of course, beyond unlikely that Memorial Day will be moved to adjoin the fourth of July. Yet that should not prevent us from learning from the Israeli example. Imagine if the third of July were dedicated to remembering the battle that concluded on that date. Imagine if “Gettysburg Day” involved a brief moment of commemoration by “us, the living” for those who gave the last full measure of devotion. Imagine if tens—perhaps hundreds—of millions of Americans paused in unison from their leisure activities for a minute or two to reflect on the sacrifice of generations past. Surely our observance of the Independence Day that followed could not fail to be affected; surely the Fourth of July would be marked in a manner more worthy of a great nation.