The American Spectator

After first reading about this case at a Red State post by Erick Erickson, I wrote about it for the Washington Examiner last Friday. Erick followed up with a new post that includes links to the others, and I do urge you to read it, my column, and his first post, all within the linked post above. That said…. What is happening here is that California has a nasty habit of what amounts to stealing patents. It uses patented products or procedures without paying for them, and then turns around and licenses all other in-state users of the product or procedure — and then, when challenged, cites the 11th Amendment’s “sovereign immunity” to say that it can’t be challenged.

Sovereign immunity is important, but I argue that it must be read in conjunction with other parts of the Constitution (and statutes) that seem to limit it in at least some small ways. Otherwise, states could control all commerce they want to muscle into, which is clearly antagonistic to both the spirit and, in some respects, the letter of the Constitution.

The Supreme Court has not decided whether to consider the pending case on this issue. Instead, it has asked the Solicitor General to weigh in on the subject. Considering that the Constitution gives Congress the specific power to make rules governing patents, and considering that in 1992 Congress passed a law prohibiting states from infringing on patents, and that the law was signed by the current president’s father, and that the law is still on the books, it makes sense that Solicitor General Paul Clement should weigh in by defending the federal government’s existing law and thus supporting the small-business patent-holder against the intellectual property theft by California. Sovereign states are immune from slip-and-fall lawsuits by people from another state — but not immune from abiding by national laws involving basic rights of property and contract.