‘Constitutional Slippage’—Arts Edition

Writing and ratifying a constitution is one thing; preserving one quite another, as the history of our own amply demonstrates.


One of our bright young legal associates, James Schindler, was wandering about town the other day, as so many young people in Washington are wont to do, when he strolled into the Capitol Visitor Center and saw an art exhibit extolling the virtues of the National Endowment for the Arts. Above it was emblazoned an excerpt from the Constitution that read, “The Congress shall have Power to … promote … useful Arts.”


Thinking something amiss, he pulled out his Cato pocket Constitution, without which, being a solid citizen, he never leaves home. And sure enough, the constitutional passage actually reads, “The Congress shall have Power To … promote the … useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”


It takes no small imagination, of course, to read that passage as authorizing Congress to promote the arts by subsidizing them and not simply by protecting intellectual property. But never let it be said that the folks at the National Endowment for the Arts are without imagination.


Thus does “constitutional slippage” unfold. One imagines that in the beginning, before the advent of national endowments for art, the humanities, science, and more, all was dark and mere philistines roamed the earth, searching for the light.