In “The Pop Culture Clause,” Elizabeth Wurtzel’s essay in the new issue of Columbia: A Journal of Literature and Art, Wurtzel asserts that American culture has produced Elvis, blue jeans and the gold rush because the Framers of the Constitution had the prescience to pen the Intellectual Property Clause of the Constitution, also known as the Progress Clause. But Wurtzel, who is most well known for documenting her depression in her memoir Prozac Nation, and who has since graduated from Yale Law School, fails to mention that at that time the concept of protecting intellectual property was, in fact, nothing new.
Intellectual property was “extremely extraordinary for a society that was ninety percent farmers,” Wurtzel claims. The Framers of the Constitution had to take an “extreme leap of faith to think that there would ever be anything like culture in this country, anything like literature and art, like science and invention, anything that would demand and command copyright and patent.” Really? The Framers were descendants of the established gentry of 17th century England, landowners. And up until the Restoration in 
England in 1660, society in England was primarily agrarian, with the exception of the landed aristocracy. And yet, patents were already being systematically recorded beginning in the early 17th century, not only for manufacturing processes, but also for luxury goods. Patents had been issued in England as early as 1449, by Henry VI. I guess the sight of farmers wasn’t enough to erase all notions of progress and culture from the minds of those with the means to further it. And farming had something to do with accruing the means, kind of went hand-in-hand with it, actually.
“The people who pilgrimed” to the colonies did not arrive on “the now-defunct Concorde,” states Wurtzel. But a trip across the Atlantic was not cheap in the 17th century and it was somewhat akin to traveling on the Concorde, provided you could pay your way in indentured servants. The Framers were descendants of people not only with means, but with a vision that was not so much circumscribed by their new surroundings as it was informed by the desire to change their surroundings and surpass the culture from which they came. So unless the Framers were either complete ignoramuses, or were raised in a Kaspar-Hauser-like detachment from the culture in which they lived and were descended from, conceiving of the need to protect intellectual property wasn’t so much a “leap of faith,” as Wurtzel would have us believe, as it was a natural, and even expected, occurrence.
But Wurtzel persists. To have concocted this notion of protecting ideas, the Framers must have been “just a little bit crazy” she suggests, citing in support an interesting Duke University study showing that 49% of our presidents from 1776 to 1974 were mentally ill, and Wurtzel even managed to work in the phrase “hot sex” to promising but ultimately unsatisfying ends. Whether or not this is true, the 49% stat., and even if the Framers had been ignorant of the tradition of identifying and rewarding first inventors and its importance in the development of scientific and technological innovation that had been around since the urban craft guilds of the 13th and 14th centuries that conceived of the need to protect intellectual property by granting letters patent, the Framers may have been apprised of more nearish developments in England going on around the same time. When the Constitution was adopted in 1787, the first wave of the Industrial Revolution, in the textiles industry, was well underway in England and inventions were being patented, like the Spinning Jenny (1770), the use of which affected yarn prices and so angered the spinning society of Blackburn that spinners went on a Jenny-smashing rampage. And in the U.S., the Industrial Revolution was about to break.
Still, the Progress Clause is a “mystery” to Wurtzel who marvels at how the Constitution created a reliance of art and science on capitalism that engendered a “uniquely American form of creativity” by “throwing it to the marketplace,” rather than having 
choices about “what’s worthy of making it out into the world” be left to culture ministers, as it is in “almost every nation in Europe.” People decide they want Elvis, voila: Elvis’s gyrating hips. “This was not France, where the masses were actually starving when they stormed the barricades…” No. But was it not France where Gustav Flaubert’s Madame Bovary was a very popular book—a bestseller, even—after its early tussle with the law, which it won. Books apparently were being thrown to the French marketplace to great effect both for authors and audiences. Where were the culture ministers in that scenario? Maybe they wanted smut? And why didn’t Disneyland, soup-can paintings and Marilyn Monroe happen in France, or the U.K.?
But while Wurtzel knows how to spin a yarn, however wanting of a spindle, and I’m not convinced that the U.S. is the only country in which truly popular art and opinion wins out, one has to appreciate Wurtzel’s identification of U.S. culture as one that is idea-based, and one that has incredible respect for innovation and vision, and her desire to explore why that is.
