Founding-era translations of the U.S. Constitution.

• Author: Mulligan, Christina
• Position: IV. The Translations B. The Progress Clause through V. Conclusion, with footnotes, p. 26-53

2. The Progress Clause

   Progress Clause, Art, 1, [section] 8, cl.8.

   English German Dutch To promote the Die Aufnahme der Om den voordgang van Progress of Wissenschaften und weetenschap en nuttige Science and nutzlichen Kunste konsten te bevorderen useful Arts dadurch zu befordern, door (voor bepaalde tyden) by securing for dass er denen Autoren aan de autheurs, en limited Times und Erfindern das uitvinders te verzeekeren to Authors and ausschliessende Recht het uit sluitend regt tot Inventors the zu ihren respectiven hare bysondere schriften exclusive Schriften und en ontdekkingen.... Right to their Entdeckungen fur eine respective gewisse Zeit Writings and versichert.... Discoveries.... The Progress Clause grants Congress the power to create copyrights and patents. The text runs in parallel; Congress is granted the rights to "promote the Progress of Science ..., by securing for limited Times to Authors ... the exclusive Right to their ... Writings" and to "promote the Progress of ... useful Arts, by securing for limited Times to ... Inventors the exclusive Right to their ... Discoveries." (115)

   The general consensus is that "science" referred to learning or knowledge. (116) Although the phrase "useful Arts" is more ambiguous, scholars generally agree that it referred to technology, (117) although Edward C. Walterscheid interprets "useful Arts" to mean "helpful or valuable trades."" (118) Nonetheless, the Supreme Court "has shied away from fully defining what constitutes 'the Progress of Science' or 'useful Arts.'" (119) The Progress Clause notably omits any mention of protecting the fine arts, such as sculpture, poetry, painting, and music, which are clearly copyrightable under current statutory law.

   There is a paucity of Founding-era interpretive data on the Progress Clause. Although Thomas Jefferson wrote at some length about patents and copyrights, he was not present at the convention in Philadelphia when the Constitution was drafted. (120) There is no record from the Convention of any debate concerning the clause. (121) Indeed, aside from a brief discussion of the clause in Federalist 43, (122) there is very little evidence of how the founders and contemporary readers of the Progress Clause interpreted it.

   The Dutch and German translations of the Progress Clause tend to comport with the dominant academic understanding of the phrase "science and useful Arts." "Science" was rendered "Wissenschaften" ("sciences") in German and "wetenschap," meaning science, knowledge, or scholarship, in Dutch. "Useful Arts" in German became "nutzliche Kunste," indicating the skills and techniques of industry and craft, and standing in contrast to "schone Kunste" ("the beautiful arts"), which included painting and poetry. The Dutch translation was similarly rendered "nuttige konsten"--the useful arts, which excluded the visual arts.

   Other language in the Progress Clause has been the subject of judicial scrutiny. The Progress Clause's phrase "for limited Times" was at the center of a constitutional challenge to the Copyright Term Extension Act ("CTEA") in the 2003 decision Eidred v. Ashcroft. (123) Eldred challenged the CTEA for extending the copyright term by twenty years, arguing that this extension violated the constitutional requirement that copyrights be granted only "for limited Times." The Supreme Court held that even though the CTEA extended the copyright term by twenty years, the period of copyright protection still comported with the Constitution's requirements because the term was not infinite. (124)

   The Dutch and German translations suggest a meaning of "for limited Times" which may slightly differ from the Supreme Court's interpretation. De Ronde translates the phrase to "voor bepaalde tyden"--"for some time" or "for certain times." Similarly, the German is "fur eine gewisse Zeit"--"for a period of time" or "for a sure/certain time." (125) Both suggest that in addition to not being infinite, the term of a patent or copyright may have to be a specific, particular length of time, not necessarily alterable in the future, although one could argue that even an extended term was still for a certain time, and that the certain time had merely changed. In this vein, the term 'gewisse' is also colloquially used in the sense of "some time" as opposed to "an infinite time," in which case an exactly determined or determinable duration is not presupposed.

3. The Necessary & Proper Clause

   Necessary & Proper Clause, Art. I, [section] 8, cl. 18.

   English German Dutch To make all Laws Alle Gesetze zu Om alle wetten te which shall be machen, die nolhig maken, die noodig necessary and und erforderlich en bequaam zullen proper for carrying seyn werden, die zyn om ter uitvoer into Execution the vorhergehende und te brengen de foregoing Powers, alle andere Gewalt, voorgaande magten and all other die kraft dieser en alle andere Powers vested by Verfassung der machten, gevestigt this Constitution Regierung der by deese in the Government Vereinigten Staaten Constitutie in het of the United oder einem government van de States, or in any Department oder Vereenigde Staaten Department or Beamten derselben of in eenig Officer thereof. erlheilet worden, department of in Ausubung zu officiant daarven. bringen. The question of what laws are "necessary and proper" for Congress to make harkens all the way back to the ratification debates. Anti-Federalists "pejoratively dubbed the Necessary & Proper Clause 'the Sweeping Clause,' arguing that it granted dangerously broad and ill-defined powers" to the Federal Government. (126) In contrast, "Federalist supporters of the Constitution ... insisted that the Necessary and Proper Clause was not an additional freestanding grant of power, but merely made explicit what was already implicit in the grant of each enumerated power." (127)

   Although Mark Graber pessimistically claimed, "no one, including the framers, knows the point of the phrase 'necessary and proper,'" (128) Robert Natelson argues that contemporary documents indicate that "necessary and proper" was a legal term of art frequently used in agency instruments when granting incidental powers to one's fiduciaries. (129) Indeed, during the ratification debates, Federalists wrote as though "proper" indicated that laws must accord with the government's fiduciary duty to the people. (130)

   The question of what laws were "necessary" quickly became salient after the Founding, when each branch of government considered whether Congress had the power to charter a bank. James Madison, Thomas Jefferson, and Edmond Randolph interpreted "necessary" in a narrow manner. (131) In contrast, Alexander Hamilton took the view that "necessary often means no more than needful, requisite, incidental, useful or conducive to." (132)

   When Chief Justice John Marshall ruled on the constitutionality of the Bank of the United States in 1819, he sided with Hamilton. To Marshall, "necessary" meant "convenient." (133) Although Marshall weaved flexibility into the notion of necessity, he suggested that "necessary" laws must still remain incidental in character. (134) Marshall went on to suggest that the term 'proper' limited Congress to passing laws actually, rather than pre-textually, aimed at achieving the ends listed among the enumerated powers. (135)

   The Dutch and German translations of "necessary" denote a stronger requirement than Marshall's notion of convenience, just as the plain text of the English does. De Ronde used the word 'noodig,' meaning "needed" or "demanded." The German translator chose 'nothig,' (136) also meaning "necessary."

   The translation of "proper" provides more insight into the minds of the translators. In the Dutch translation, "proper" became bequaam, spelled 'bekwaam' in modern Dutch, meaning competent, able, or capable.137 For a law to be "noodig en bequaam," it would have to be necessary and capable of achieving the end it sought. This suggests an interpretation of "necessary and proper" where laws passed under the Necessary and Proper Clause are constitutional when they are capable of solving the problems or addressing the situations the enumerated powers of Congress were designed for.

   The German translation used "erforderlich" for proper, meaning required, requisite to have happen, or "what the situation demands." The translated phrase as a whole, "nothig und erforderlich," is thus somewhat redundant--laws must be "necessary and required." This is a surprising translation because in the German legal vocabulary there was a non-redundant analog to the Necessary and Proper Clause that could be found in contemporary texts: "notwendig und angemessen." "Angemessen" would mean "proper" in the Aristotelian sense, ensuring not only the effectiveness of the means, but also that the means are limited by the goal. In other words, it would not be "angemessen" for one to crack a nut with a sledgehammer. The redundant form the translator uses is not necessarily wrong, and might be understood to have a rhetorical function instead: it emphasizes that the power given is essentially restricted.

   Neither translation evinces an understanding of Natelson's notion of agency or a sense that "necessary and proper" laws are merely laws incidental to laws clearly within the powers of Congress. This may be because the translators were unfamiliar with the phrase "necessary and proper" as a term of art. Nonetheless, the view that a proper law is one which is not pre-textually related to an enumerated power is somewhat evoked by the translations "erforderlich" and "bequaam," particularly if one understands 'bequaam' as indicating that a law is only proper if it is capable of advancing the ends Congress is permitted to.

   Justice Marshall contrasted the language of the Necessary and Proper Clause with the language prohibiting states from laying imposts of duties. That language states, "No State shall ... lay any Imposts of Duties ... except what may be absolutely necessary for...