I. INTRODUCTION

Few except close friends and sponsors seem to have taken the time to realize that Spooner’s view of the Constitution required nothing less than a complete reinterpretation of how the Constitution had been formulated and what it authorized. His view was the truly radical one, but it offered an emotionally less satisfying alternative.7

Born two hundred years ago in Athol, in central Massachusetts—“the most unique and remarkable character” to call that town home—Lysander Spooner lived a long life during which he wrote about many aspects of the law.8 He addressed a diverse range of topics but never strayed from a strong intellectual commitment to the basic principles of libertarianism. He was unafraid to take radical positions, even if they deprived him of the fame and fortune that he clearly thought he deserved.

Sadly, to this day, the libertarian theory of constitutional interpretation that Spooner set forth in the two volumes of his most substantial (but often overlooked) work, The Unconstitutionality of Slavery, published in 1845 and 1847,9 continues to be described as “more polemical than serious.”10 In the two volumes of The Unconstitutionality of Slavery, Spooner presented a fiercely logical argument that slavery violated natural rights, which, as understood using the correct rules of legal interpretation, the U.S. Constitution did not sanction. 11

At the time, though, the alternative argument (primarily made by followers of William Lloyd Garrison) that both the nation’s supreme law and its Supreme Court were at the beck and call of “slave power” enjoyed far greater support within the abolitionist community.12 There were notable exceptions—Frederick Douglass, for example, attributed to the works of Spooner his 1850s conversion to the belief that slavery was unconstitutional.13 However, these were never the prevailing views. In the middle of the nineteenth century, the argument that the Constitution was a “covenant with death, and an agreement with hell”14 powerfully captured the imagination of slavery’s opponents.

Today, scholarly attitudes have changed very little. Writing at the same time as Spooner, Wendell Phillips, the outspoken Garrisonian orator, produced two works that laid out a method of interpretation diametrically opposed to that of Spooner. Despite the fact that they are based on assumptions about the historical intentions of the Constitution’s framers rather than on solid principles of law, Phillips’s The Constitution: A Pro-Slavery Compact [hereinafter “ProSlavery Compact”]15 and Review of Lysander Spooner’s Essay on the Unconstitutionality of Slavery [hereinafter “Review”] 16 are widely respected as solid interpretations of the pre–Thirteenth Amendment Constitution. There is a common belief that Phillips’s works “destroyed Spooner’s position.”17

This article is an effort to build on some of the other attempts, made in recent years, to change these attitudes towards the works of Phillips and Spooner.18 It emphasizes that only the latter gave us a theory of constitutional interpretation that secures the “Blessings of Liberty” for whose protection the Constitution established a distinctively limited government. In Part II, I provide an overview discussion of the works that constitute the legal philosophical debate in which Phillips and Spooner engaged in the 1840s. This is followed, in Parts III and IV, by detailed analyses of the different methods of constitutional interpretation and their implications for individual liberty employed by the two men. Finally, in Part V, I draw on a previously unpublished manuscript and Spooner’s voluminous correspondence to show that Spooner had every intention of publishing (but ultimately did not publish) even more parts of The Unconstitutionality of Slavery.

These materials demonstrate that, when properly understood, The Unconstitutionality of Slavery is a treatise that confirms that Spooner is a figure of continuing importance when engaging in twenty-first century interpretations of the U.S. Constitution. In a short postscript, I show that both the historical and libertarian aspects of this unpublished material took on new significance following the U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller. 19

Abstract

I. INTRODUCTION

II. SPOONER VERSUS PHILLIPS: AN OVERVIEW OF THEIR “GREAT DEBATE”

III. WENDELL PHILLIPS: GIVE ME HISTORY, NOT LIBERTY!

IV. LYSANDER SPOONER: GIVE ME LIBERTY . . . “[W]ITH [I]RRESISTIBLE [C]LEARNESS”

V. THE LIBERTARIAN PROMISE OF AN UNFINISHED TREATISE

VI. TWENTY-FIRST CENTURY POSTSCRIPT

VII. CONCLUSIONS

7 C. William Hill, Jr., The Place of Lysander Spooner in the American Higher Law Tradition 9 (1980) (unpublished manuscript, on file with the New York University Journal of Law & Liberty).

8 LILLEY B. CASWELL, ATHOL MASSACHUSETTS, PAST AND PRESENT 362 (1899).

9 SPOONER, supra note 3. If scholars take note of Spooner’s writings, they instead tend to focus on his much later, anarchical arguments in LYSANDER SPOONER, NO TREASON, NO. VI.: THE CONSTITUTION OF NO AUTHORITY (1870), reprinted in THE COLLECTED WORKS OF LYSANDER SPOONER, VOL. I: DEIST, POSTAL, AND ANARCHIST WRITINGS (Charles Shively ed., M & S Press 1971).

10 PAUL FINKELMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF JEFFERSON 201 n.33 (2d ed. 2001). However, it should be noted that Professor Finkelman has recently revised his description of Spooner; he now describes him as a “constitutional outlier.” Paul Finkelman, Lincoln, Emancipation, and the Limits of Constitutional Change, 2008 SUP. CT. REV. 349, 354 (2008).

11 SPOONER, supra note 3, at 56–57 (arguing that “the constitution of the United States, not only does not recognize or sanction slavery, as a legal institution . . . it presumes all men to be free . . . it, of itself, makes it impossible for slavery to have a legal existence in any of the United States” (emphasis in original)). Spooner’s theory flies in the face of both the “ugly reality” that was the enslavement of human beings and the judiciary’s “pro-slavery” readings of the Constitution. WENDELL PHILLIPS, REVIEW OF LYSANDER SPOONER’S ESSAY ON THE UNCONSTITUTIONALITY OF SLAVERY: REPRINTED FROM THE “ANTI-SLAVERY STANDARD,” WITH ADDITIONS 3 (Arno Press & The New York Times, 1969) (1847). It was this fact that led Robert Cover, in his famous work Justice Accused, to label Spooner a “constitutional utopian.” ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 154–58 (1975).

12 For an analysis of the distinction between “slavery” and “slave power” and abolitionists’ usage of them in the nineteenth century, see Larry Gara, Slavery and the Slave Power: A Crucial Distinction, in ABOLITIONISM AND AMERICAN POLITICS AND GOVERNMENT 203–16 (John R. McKivigan ed., 1999).

13 For an excellent discussion of Spooner’s influence on Douglass’s understanding of the Constitution, see PETER C. MYERS, FREDERICK DOUGLASS: RACE AND THE REBIRTH OF AMERICAN LIBERALISM 89–102 (2008).

14 DOCUMENTS OF UPHEAVAL, supra note 4.

15 WENDELL PHILLIPS, THE CONSTITUTION: A PRO-SLAVERY COMPACT: SELECTIONS FROM THE MADISON PAPERS, &c. 3 (Negro Universities Press 1969) (1844).

16 PHILLIPS, supra note 11.

17 COVER, supra note 11, at 151; A. John Alexander, The Ideas of Lysander Spooner, 23 NEW ENG. Q. 200, 206 (1950) (arguing that in the REVIEW, “Phillips demolished the Spooner argument in short order”).

18 The most prominent of these is Randy E. Barnett, Was Slavery Unconstitutional before the Thirteenth Amendment?: Lysander Spooner’s Theory of Interpretation, 28 PAC. L.J. 977 (1997).

19 128 S. Ct. 2783 (2008).

 

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