Friday, September 29, 2006

Does the Constitution require Congress to foster innovation?

Bob Park notes that the presence of other news this week "allowed the House to quietly pass H.R. 2679, the "Public Expressions of Religion Protection Act of 2006," with scarcely a mention in the media. The bill would prevent plaintiffs from recovering legal costs in any lawsuit based on the "establishment clause" of the First Amendment, which of course only happens when the court finds the plaintiff's Constitutional rights have been denied. The Senate is expected to pass a companion bill, S. 3696. Congress cannot simply abridge the Bill of Rights.

Bob, neither the Constitution generally nor the Bill of Rights specifically addresses the shifting of legal costs in lawsuits. Denying fee shifting is not an abridgment of the Bill of Rights.

Further, although the Constitution gives Congress certain powers of relevance to intellectual property, Congress does not have to create a patent act of any kind, if it does not wish to. There is no Constitutional mandate for innovation. Moreover, if Congress doesn't wish to fund the Supreme Court, Congress doesn't have to. Look back to the era of Marbury v. Madison, and one will find that Congress didn't fund the Supreme Court for a while.

[IPBiz post 2025]


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