Garrett and the Spending Clause

[Malla Pollack]

I would appreciate expert opinion on the possible limitation of such a
narrowing reading of the Spending Clause. Limiting the Spending Clause
might have major impact on research.   My recent studies of the
intellectual property clause have brought to my attention that the first
Congress was concerned that the Intellectual Property Clauses by
negative implication prevented Congress from supporting knowledge and
technology by any means except providing authors and inventors with
rights to exclude (i.e. copyright and patent statutes are the only way
Congress is allowed to "promote the progress of science and the useful
arts").  This problem was raised, for example, when a scientist asked
the first Congress to fund an expedition to Baffin's (sp?) Bay to
research magnetism in order to help navigation. (As we now know, the
magnetic north pole is not located at the geographic north pole; a
discontinuity that long confused navigators.)  The standard explanation
for why other early Congresses started using money to fund science, art,
and navigation is that Congress accepted Alexander Hamilton's argument
that the Spending Clause was a separate power.

Malla Pollack
Northern Illinois Univ., College of Law
DeKalb, Illinois 60115
815-753-1160; (fax) 815-753-9499
mallapollack at niu.edu