How The Morrill Act gave birth to Public Ownership of Private Intellectual Property in the USA.

Mackenzie Andersen
Dec 22, 2019 · 22 min read

How the “Maine Idea” gave way to “the Communist Idea’

Justine Morrill/ Mathew Brady [Public domain]

Justin Morrill was a Vermont Whig and a self made man who ended his formal education at age 15, made his success in the retail business and retired at age 38. Thereafter Morrill entered politics to become a United States Representative, and then a US Senator. He helped to shape the legislation that became the United State’s first income tax and was an instigator-author of the Morrill Act.

The Morrill Act

In 1787, It was written by the Continental Congress in the Northwest Ordinance that “Knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

In 1857 Justin Morrill first introduced The Morrill Act in the US national House of Representatives.

The Morrill Act was “an act donating public lands to the several states and [territories] which may provide colleges for the benefit of agriculture and the mechanic arts”.

However the Morrill Act introduced federal control and powers not enumerated in the United States Constitution . The Morrill Act empowered federal involvement in education and economic development, merging both into a combined un-enumerated federal power.

Advocating for the Morrill Act*

Representative Morrill argued that Article IV Section 3 of the Constitution provided Congress with the power to “dispose of federal lands” and offers ample constitutional legality for the act.

Tennessee Senator John Bell/Vannerson, Julian, 1827-, photographer [Public domain]

Senator John Bell argued that “a hundred million acres of public lands had been given for objects not specifically defined in the Constitution”, setting a precedent for distributing federal wealth to further undefined objects of government.

Arguing against the Morrill Act*

Clement Clay/ Mathew Brady [Public domain]

The opponents to the Morrill act argued that it would involve “unconstitutional, unprecedented federal interference with state’s rights” *

Senator Clement Clay called the act “a magnificent bribe” to encourage Alabama to “surrender to the federal government her original and reserved right to manage her own affairs”, reminding his opponents of the carefully constructed limitations of federal powers that the founders had built into the Constitution, asking if one could believe that such limitations were a sham, that through deliberate intent or stupidity, the founders had provided a means to circumvent their careful limitation of federal powers.

Clay also brought up Article I, Section 8, Clause 8,, wherein Congress is given the power to promote the sciences and the arts by securing the rights of authors and inventors, for a limited time, to the exclusive rights to their writings and discoveries.

Clay’s argued that the land disposal clause has nothing to do with furthering public education whereas Article 1, section 8 deals with intellectual pursuit, foreclosing the interference of any other part of the Constitution in governing purposes pertaining to intellectual pursuits.

Ohio Senator George Pugh /Mathew Brady [Public domain]

Ohio Democrat George Pugh declared that “ It is just as much a violation of our duty to invade the province of state government under the head of donations as it would be to invade it by force and violence”.

From the constitutional consideration to “need and result”

As the debate devolved away from constitutional consistency it became centered on need and result. Those supporting Act argued it as an economic development asset, and marginalized state sovereignty and other constitutional arguments.

Those arguing against the Morrill act weighted the debate around the inequities created by government distribution of wealth and made the case that government involvement in economic development would inevitably lead to the government picking winners and users.

President James Buchanan / Mathew Brady [Public domain]

The first Morrill Act was passed but vetoed by President Buchanan, who made heavy use of the constitutional argument. It was subsequently reintroduced and passed in 1861, under President Lincoln, at a time when Southern States, which largely opposed the Morrill Act, had left the Union.

Abraham Lincoln / Alexander Gardner [Public domain]
Florer, J. (1968). Major Issues in the Congressional Debate of the Morrill Act of 1862. History of Education Quarterly, 8(4), 459–478. doi:10.2307/367539

Those defending the Morrill Act, sidestepped the constitutional issue and refocused the argument on state’s needs, a common debating device which never goes out of style and that is how, incrementally, over time, governments are transformed away from their original intent.

The New England Idea

The Mill Pond / Mackenzie Andersen,

In the 1860’s Maine leaders were aiming to acquire a Morrill land grant to establish the University. They needed to convince voters to accept a federal grant with the condition attached that would cause Maine to move away from what was called “The New England Idea”.

To convince voters to change their minds, the University of Maine was promoted with the promise of training farmer’s sons with scientific knowledge. With that enticement Maine voters were convinced to go against their own tradition.

The original charter for the University read “by the name of the Trustees of the State College of Agriculture and Mechanical Arts.”

The University of Maine was established in 1862 under the Morrill Act as a Land Grant College.

A promise not honored

In 1907 the opinion was stated in the Maine congressional record that the the promise of educating the sons of farmers was never realized:

The Committee made an elaborate report in 1897 to the sixty eighth legislature. The report declared the “New England Idea” in education had meant free public schools and a compulsory degree of attendance, with higher education and professional training at the cost of the individual rather than the state; that consequently, public opinion was divided in 1862 as to the expediency of accepting the federal grant under imposed conditions: that it would not have been accepted but for the belief which was, on the whole, entertained, that the proposed college would give the industrial classes a scientific knowledge which would make farming attractive and profitable and elevate both farming and the mechanic arts to the plane of other pursuits and professions by filling their ranks with educated men” That the college owes especially its existence to the expectation that scientific farming would be promoted by the education of farmer’s sons, that expectation has not been realized, that the college was in its practical workings a school of science and technology”
Documents Legislature, State of Maine AD 1907 Morrill Act Private and Special Law 1865 University Maine

Unknown photographer [Public domain]

Expanding Costs

In the years between 1865 and 1907 there was great controversy over the expanding cost of the University. It was expected that the University would one day sustain itself but the expenses were only multiplying

In 1871 the name of the University was changed to the University of Maine

1907 From Sovereignty to Dependency

By 1907 the argument which prioritized “need and result” over the founding principles of the United States Constitution mutated into a portrait of the University as a dependent child. A Legislative discussion began with acknowledging the dislodged New England Idea and quickly moved on to a doctrine of central management and University as a dependent on its parent, the State.
A University born with a promise, not honored, but used as a strategy to break the New England Idea of individual responsibility, moved the Maine people incrementally toward dependency on the State.

In those words, the Maine Legislature portrayed the citizens of Maine as children dependent the parent state, guided by what the State determined to be “needs” and not necessarily “wants”, the latter term interpretable, in other words, as the individual right to the pursuit of happiness granted by the United States Constitution. That which the individual wants can be construed as pursuing the work of his choice, respective of his talents, what the State needs is an industrial army to serve the targeted objectives of the corporate State.

Terms of the Morrill Act

Under the terms of the Morrill Act the University had five obligations which could not be changed by succeeding Legislatures:

1 To establish a college of the described character within five years

2 To invest and reinvest the fund as provided in the act

3 To replace all losses to the fund

4 To apply the income solely to the endowment and support of the colleges

5 To purchase or erect and reserve and repair all needed buildings not otherwise provided.

The fund was derived from the sale of the federal land grant.

University of Southern Maine User:Nickline4 [CC0]

Today we know that the notion that the University would become self-sustaining was a tall tale.

In the 21st century, the University of Maine is a powerful grant recipient, with funding written in to the Maine statutes coming from every direction. I can only report on what I have discovered through independent research,which has established that the University of Maine ia a central hub of the state corporate network linking many subsidiary corporations in centrally managed economic development system.

From Home Rule to Central Management in the Blink of an Eye

1n 1969, Maine became a constitutional Home Rule State.
Contrarily, in 1976, under the Longley administration, it was deemed by the Maine Legislature that “centrally managing the economy is an essential government function” which must be done by public-private relationships.

A report titled Governor’s Task Force for Economic Redevelopment, Recommended Legislation for an Economic Development Program -110th Congress **, stated as one of two goals, the intention to eliminate a public vote on municipal bonds as provided in the Home Rule Amendment of 1969. The goal was indisputably a plot against the Maine Constitution.

The goal has not been achieved. Instead, Maine has become a state governed by boards of varying degrees of opacity, frequently a step removed from interfacing with the public.

From Small Business to the Global World Order

In the seventies, small businesses, employing no more than 100 people, composed the largest sector of the Maine economy. Maine was leading the nation in growth in that sector.*** Governor Longley and his board composed of the heads of Maine’s largest industries, reasoned that since small businesses have greater difficulty than large businesses in securing capital, the State needed to step in to facilitate access to capital. The manner in which the centralized economy was promoted followed the tried and true method used in selling the Morrill Act to Mainers. Today Maine’s centralized economy, decades removed from its beginnings, when it was sold as serving the needs of small businesses, is aggressively pursuing global corporatism on the backs of the general economy, including small business.

A Change of Character ?

In 1981, the Maine Legislature passed a statute claiming the University of Maine as an instrumentality of the state.

Was it in violation of the terms of Morrill Act in which the described character of the University was to be established within five years after the University was established, not to be changed by subsequent legislatures? At the five year mark, the Legislature’s only role was appropriating funds. Trustees oversaw University affairs. The character of the original arrangement separated education and state.

§10903 claims consistency with the original purpose of the University, which was as an educational institution for farming and the mechanic arts. The actions implemented by §10903 alter the character of the Institution by reformulating the University as an instrument of the State. By 1981 the State has been reinvented as the central manager of Maine’s economy, making the University an instrument of centralized State economic development policies.

1987 Tax Exempt Borrowing By The University: Who is the liable party?

Pearson Scott Foresman [Public domain]

Maine Constitution, Article IX, Section 14. Authority and procedure for issuance of bonds.

In 1987, The Maine Legislature enacted tax exempt borrowing authority for the University of Maine.

I cannot say that I have unravelled what this act actually says, as parts of the statute reads as a self contradictory maze of string along sentences. I am neither a professional accountant not lawyer and offer this analysis as a layperson, only.

In §10950. Legislative findings of fact, The University, is authorized to enter into financial transactions, in its own name, on behalf of the State.

If the University is acting on behalf of the State, one might reasonably take that to mean that the State is the liable party.

Section §10964. Actions against university, states that agents acting on behalf of the University may not be held personally liable. The University is likewise said to be acting on behalf of the State, and is incorporated as an instrument of the State, by the State. By the same relationship of rules governing employees and agents acting on behalf of the University, the University should not be held liable when acting on behalf of the State, especially if the State functions as the central manager of the economy and given that the borrowing authority granted to the University is justified as an economic development purpose, a declared State function.

And yet, the entity responsible for repaying the loan is clearly identified as the University in §10955. Terms of financing transactions 4. No state debt. The debt must be repaid from income generated by the University.

4. No state debt. Money borrowed pursuant to this chapter and evidences of indebtedness issued in connection with this chapter shall not constitute any debt or liability of the State or of any municipality or any political subdivision of the State, but shall be payable solely from the revenues of the university or any project for which they are issued, and all such evidences of indebtedness shall contain on their face a statement to that effect. The borrowing of money pursuant to this chapter and the issuance of evidence of indebtedness under this chapter shall not directly or indirectly or contingently obligate the State or any municipality or political subdivision to levy or to pledge any form of taxation or to make any appropriation for their payment and such evidences of indebtedness shall not constitute an indebtedness within the meaning of any constitutional or statutory debt limitation or restriction.

Once identified as an agent acting on behalf of the State in §10950, the University is treated as a sovereign entity, in §10955, with a caveat, the University does not have the self governing authority to act on its own behalf

When the Legislature enacted §10903 in 1981, the University was transformed from a sovereign institution to an instrument of the State. The Legislature must act on the behalf of the University, to grant the University special permission to act like a sovereign entity. The act never states that it is the State that must act on behalf of the University but the act itself is performing the function.

Section §10959. Refunding indebtedness is composed of many run-on sentences, and stringed references to “ refunding general obligation debt of the State’ a term which implies a debt of the State. Despite what is stated in §10955, it is implied that bonds incurred as a debt of the State, can be used to finance University debt, but those bonds must be repaid by the University, not through tax revenues of the State. This leads to questions as to how bonds used to fund University costs, to be paid back by the University, are structured into public referendums on bonds, which constitute a public debt. It also suggests the the ultimate liability lies with the State via the bond. If the University is “refunding indebtedness” to the State, the State is the lender to the University using funds from publicly secured bonds and/or taxation. If the University does not pay back its debt to the State, the State is still responsible for paying back the bond and/or debt.

§10959. Refunding indebtedness…..the Treasurer of State is authorized to discharge the university from an amount of its obligations to reimburse the State for debt service on general obligation debt of the State issued to finance any project or projects that is equivalent to the general obligation debt of the State actually being refunded by the issuance of bonds under this chapter.

§10952. Powers places the debt limit, in the University’s name, at $350,000,000, far exceeding the debt limit of $2,000,000 imposed on the State by the Maine Constitution. The University is treated as a public-private relationship, or a shape-shifter. Legislation structuring public-private relationships allows the entity to shift its identity as needed. The University takes on debt up to $350,000,000, in its own name, on behalf of the State, and can arguably be construed as a private entity taking on debt and not subject to the debt limitations applied to the State in the Maine Constitution.

1995 State Take Over of All Public Education in Maine

In 1995 the Maine Legislature created a new State agency, The Education Research Institute associated with the University of Maine to benefit “targeted educational research”. The statute grants the Legislature jurisdiction over the curriculum of the University of Maine and involvement in all public education in Maine, starting with pre-school.

§10. Education Research Institute

The institute shall create and maintain an information system that tracks important early care and education data for public preschool programs, kindergarten and grades one to 12. The institute shall also conduct exploratory, long-term research on education issues. [2009, c. 540, §1 (AMD).] 1995, c. 395, Pt. J, §1 (NEW) .]

The Education Research Institute is supported by public and private funding, which allows companies with large capital resources to influence public education to their advantage in both job training and culture.

In 1997, Chapter 107-C: Maine Economic Improvement Fund was enacted in support of public private business partnerships, codifying the integration of the University of Maine and targeted interests in the private sector, and “to provide the basic investment necessary to obtain matching funds and competitive grants from private and federal sources”.

State Ownership of Intellectual Property Rights via The University of Maine

James Madison /Gilbert Stuart

University Of Maine Claims Ownership of Intellectual Property Rights

In 2004, The University of Maine System, Statement of Policy Governing Patents and Copyrights, claims the right of ownership by the University of intellectual property created by university staff and students and uncompensated individuals.

In 2011 The Supreme Court held that a researcher inventing a patent in a federally funded lab owns the patent.

The University of Maine is a State University which has been federally funded since birth, but as of today, it is still claiming rights to its ownership of intellectual property based on usage by the true author of the University’s publicly funded facilities.

In 1999, §1921. Maine Patent Program was enacted as an educational program on patenting. The University of Maine claims that it can charge “a reasonable percentage of the royalties for any successful innovation patented through the program for services provided in registering a patent.

2.Applicant’s costs and duties. An applicant accepted by the program shall pay the costs of the patent search and opinion and for patent prosecution if the final product is manufactured or licensed out of state. An applicant shall pay to the program a reasonable percentage of the royalties for any successful innovation patented through the program. [1999, c. 731, Pt. WWW, §1(NEW)

4. Fund. The Maine Patent Fund, referred to in this chapter as the “fund,” is established as a revolving, nonlapsing fund to supplement the Maine Patent Program. All money from royalties received from applicants pursuant to this chapter must be credited to the fund. Money in the fund not currently needed to meet expenses of the program must be deposited with the Treasurer of State to the credit of the fund and may be invested as provided by law. Interest on these investments must be credited to the fund. Money in the fund may only be expended in accordance with allocations approved by the Legislature.

University of Maine Statement Governing Patents and Copyrights

In 2002, the University of Maine published Statement of Policy Governing Patents and Copyrights . The terms are initially presented as they apply to faculty members, but, it follows that, slipped in, with no special heading, is a claim that the same terms apply to students and non-compensated individuals. The modifier “and/or” conditions the terms to apply to any individual whom is deemed by the University to have made significant use of University resources.

It is no more inconsistent with the founding philosophy of the United States Constitution, to make claims to authorship based on the use of facilities than it is to base it on providing a supporting service.

The Breakdown:

IV. APPLICABILITY This policy, as amended from time to time, shall be deemed a part of the conditions of employment for every employee of the University, and a part of the conditions of enrollment and attendance at the University by students. It is also the policy of the University that, by participating in a sponsored project and/or by making significant use of University Resources and/or by participating in teaching, research, or service projects, individuals (including non-compensated individuals) accept the principles of ownership of Intellectual Property as stated in this policy, unless an exception is approved in writing by the Intellectual Property Office.

The term “non-compensated individuals” is not defined in the policy. The closest definition is “Works of Non-Employees. Under copyright law, Copyrightable Works of non-employees such as consultants, independent contractors, etc.” In examples given, the terms should be handled in a contractual agreement between two parties, but the key words are “non-employees” and “such as”. These terms allow the University to lay claims to intellectual property rights of unsuspecting persons making use of the facilities, such as a student working on an independent project, who might assume that being a student at the University includes the right to use the facilities, and has no reason to suspect that in America, that by so doing, one could lose his or her intellectual property rights.

University policy makes the University the judge of a contest in which is also a player.

The terms in this section assign the University as “the decider” over contested intellectual property rights:

8. The term “University Resources” means any support administered by or through a University, including but not limited to University funds, facilities, equipment or personnel, and funds, facilities, equipment, or personnel provided by governmental, commercial, industrial, or other public or private organizations which are administered or controlled by the University. University Resources are to be used solely for University purposes and not for personal gain or personal commercial advantage, nor for any other non-University purposes. Intellectual Property that is developed with Significant Use of University Resources rather than Incidental Use of University Resources shall be considered to have been created through use of University Resources. The application and interpretation of the above terms in any particular situation rests with the Intellectual Property Office and its determination shall be final, subject to the review procedures set forth in Section VIII.

9. The term “Intellectual Property Office” refers to each campus’ cognizant administrative unit and members of the faculty retained for the specific purpose of administering the University’s Intellectual Property policy as outlined herein.

Has the University become dissociated from the idea on which it was founded, as a public Institution, with the promise to teach farmers scientific skills, embodying a quality of service to the student, and providing the student with a chance to develop the student’s faculties, and opportunities in life? Has the University abandoned the American object of government, as stated by James Madison?

Authorship protected by Article 1, Section 8 of the United States Constitution

Senator Clement Clay argued in the debate over the Morrill Act that the appropriate section of the Constitution to place all matters concerning intellectual pursuits was Article 1, Section 8, pursuant to the placement of intellectual property rights in that section.

If land grant colleges had been established under section 8, would it be less likely that in this distant future, a land grant college would be making claims on intellectual property rights which arguably violate the US Constitution, Article 1, Section 8?

A patenting service is not an authorship process. The intellectual property rights claimed by the University of Maine pertaining to services and University public ownership of facilities, is consistent with Communist ideology.

By 2004 a minor in Marxist and Socialist Studies was established at the University of Southern Maine. No studies are available on the Maine Constitution at the University of Maine.

One can extrapolate how differently the future might unfold if instead of offering a minor in Marxist and Socialist Studies, the University of Maine offered a minor in the Maine Constitution, based on the United States Constitution.

Given the University of Maine’s overt disregard for the philosophy embedded in the United States Constitution, and articulated by the words of James Madison in Federalist Paper #10, explicitly stating the first object of government to be “The protection of the faculties of men” from which property rights are derived, inclusive of intellectual property rights, the University is long overdue a court challenge on this matter. Suggested retribution: a requirement that the University offer a combined minor in the United States founding documents, and the Maine Constitution.

Public Education as Economic Development

The Statement of Policy Governing Patents and Copyrights still stands today inviting a wide range of interpretations. How does the above definition of “University Resources” interact with Maine’s publicly-privately-owned TechPlace?

TechPlace is a promoted as communal resource for start-up companies. Each TechPlace is required to be associated with at least one academic institution in the state. All public academic institutions, including the University of Maine have been under the jurisdiction of the Maine Legislature since 1995, the core of which is the University of Maine where the state’s policy regarding intellectual copyrights is effectual.

5. Relationship with academic institution. A technology center shall establish a relationship with at least one academic institution in this State. The Department of Economic and Community Development shall establish guidelines for such a relationship and determine whether a technology center has met the requirements of this subsection. §15322. Technology centers

The phrase “at least one academic institution in the State” allows the possibility of an association with an academic institution in the private sector, but only if the State Department of Economic and Community Development permits it.

Tech Places are linked to the Maine Technology Institute, a public charity providing grants to private corporations developing commercial products. Although MTI is chartered as a public charity, the MTI charter authorizes the board to make a profit and own intellectual property rights.
Authorship is protected by Article 1, Section 8 of the United States Constitution as argued by Senator Clement Clay in the debate over the Morrill Act. Morrill argued that the appropriate section of the Constitution to place all matters concerning intellectual pursuits was Article 1, Section 8, pursuant to the placement of intellectual property rights in that section.

More Intellectual Property Objectives.

Under §15303-A. Maine Technology Capacity Fund, ownership of intellectual property rights is granted to the board of the Maine Technology Institute:

2. Organization. The board has all the powers and authority, not explicitly prohibited by law, necessary or convenient to carry out and effectuate the functions, duties and responsibilities of the fund, including, but not limited to:

G. Owning intellectual property, licensing intellectual property and negotiating for and collecting royalty rights or otherwise realizing a return on investment made under the fund and all programs of the institute when appropriate in order to promote the interests and investments of the State in furthering science and technology; and [2003, c. 20, Pt. RR, §7 (NEW); 2003, c. 20, Pt. RR, §18 (AFF).]

The Maine Technology Institute is yet another strange beast of Maine’s public-private centrally managed economy, which I will leave for another day..

Suffice it to say that the Maine Technology Institute, established in 1999 is joined at the hip to the Advanced Manufacturing Center at the University Of Maine, established in 2008. The Advanced Manufacturing Center functions as a University and State enterprise existing in competition with enterprises in the same field in the private sector, employing student labor, of course.

In 2019 Federal funding was matched with MTI funding to upgrade State-owned facilities at The University of Maine

More Mandated Funding From Maine Taxpayers

§10006. Endowment incentives

In 1999, the Maine Legislature created an endowment fund for the University system pledging that the taxpayers of Maine will match certain funds given to the University as private donations.

5. Matching funds available to postsecondary entities. Upon determination that the criteria established in subsection 3 have been met, the State Treasurer shall provide that matching fund…

The question is, what is the University System, an instrument of the public- private state? How do we know where it begins or ends?

Conclusion: In 2019, The Land Grant College, now known as the University f Maine is operating, with the help of the Maine Legislature, in many respects (not all) more like a corporation, serving in its own interests than as an educational institution serving the interests of students.

That is all for now, but it’s not all. There is more to come! Sign up for my email list for updates!

Thank You!

Dialogue & Discourse

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Mackenzie Andersen

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Dialogue & Discourse

News and ideas worthy of discourse. Fundamentally informative and intelligently analytical.

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