In 1855, Lewis Tappan, a New York abolitionist, wrote to Louis Alexis Chamerovzow, the Secretary of the British and Foreign AntiSlavery Society, about abolitionist organizations in the United States. Writing about the founders of the American and Foreign Anti-Slavery Society, Tappan observed that they initially:
conceded that they could not constitutionally touch the slavery question in the States except by agreement and persuasion; but in the progress of its history not a few began to believe that something more could be done, that slaveholding was not only sinful but illegal and unconstitutional, and within the power of the people of the U.S. through the national legislature and judiciary.20
It was appropriate that he only gave as an example the work of Lysander Spooner. As I have shown elsewhere, in the 1830s, abolitionists who disagreed with the Garrisonian condemnation of the Constitution offered modest and cautious arguments that the document permitted but did not actually sanction slavery.21 More radical theories of constitutional interpretation took hold during the 1840s, but only Spooner’s could claim a methodologically rigorous, absolutist commitment to the position that slavery was unconstitutional.
Into the 1850s, Spooner’s arguments were beginning to attract some prominent abolitionists, including Frederick Douglass. By the middle of that decade, however, his work still stood alone in its logical and legal integrity. Unfortunately for Spooner, and indeed for the abolitionist community at large, too many people were eager to dismiss his work because it was based upon a conception of law and a notion of the judicial role that looked beyond what American judges were actually doing. It was impossible to deny that Spooner’s work championed individual liberty. However, the title of “Prophet of Liberty, Champion of the Slave” ultimately went to Wendell Phillips,22 the Boston Brahmin who, ironically, interpreted the Constitution as offering no protection for individual liberty.
In November 1842, Phillips made his first public pronouncement that the Constitution should be abandoned. He was met with considerable hostility, in large part because he chose to offer these views at a meeting in Boston’s “Cradle of Liberty,” Faneuil Hall. The meeting was called to discuss the imprisonment in Boston of George Latimer, a fugitive slave. Phillips argued that the truly guilty parties in the affair were those who failed to accompany their criticism of fugitive slave laws with criticism of the U.S. Constitution. This document, he said, was the “chain which binds you to the car of slavery”; it made “white slaves” out of its adherents.23
To the outrage of the audience he proclaimed that the “spirit of liberty” is “chained down by the iron links of the United States Constitution.”24 He argued that it prevented people, even if they were so willing, from rising in defense of Latimer.
Two years later, when the debate between Phillips and Spooner formally began—upon publication of Pro-Slavery Compact—Phillips was able to shore up his interpretive position with what he considered to be irrefutable evidence that the Constitution was a “covenant with death.”25 Produced for the American Anti-Slavery Society, the book was a compendium of selections from various historical documents, most prominently James Madison’s recently published Notes of Debates in the Federal Convention of 1787. Phillips argued that these works demonstrated “most clearly all the details of that ‘compromise,’ which was made between freedom and slavery, in 1787.”26
The following year, Spooner responded with The Unconstitutionality of Slavery [hereinafter Part First].27 He argued that the Constitution in no way sanctioned slavery; the peculiar institution was in fact unconstitutional; and the use of historical documents to prove otherwise was a fraudulent exercise. In Spooner’s opinion, the only legitimate reading of the nation’s supreme law was one that adhered to the original meaning of its text.28
In 1847, Phillips responded with the Review. 29 The final word in this debate came from Spooner’s pen, just a few months later, when he wrote The Unconstitutionality of Slavery: Part Second [hereinafter Part Second],30 in which he provided additional evidence for the argument made in Part First. What are the legitimate sources to consult when interpreting the law? This was a question to which Phillips and Spooner had very different answers. Only the answer provided by Spooner offered any hope of securing the “Blessings of Liberty” for which the Constitution existed to protect.
However, before proceeding to an analysis of their different interpretive methodologies, it is necessary to gain an understanding of the contrasting definitions of “law” from which these two men worked. In keeping with William Blackstone’s argument that slavery was inconsistent with natural law, Lord Mansfield famously wrote in Somerset v. Stewart that slavery could only be supported with the force of positive law. 31 Besides being an opinion “that molded American constitutional development for ninety years,”32 Somerset’s Case was pivotal with regard to Phillips’s understanding of the relationship between slavery and American law. As a “concise definition” of the positive law to which Mansfield had referred, Phillips admiringly quoted from Commonwealth v. Aves, 33 wherein Chief Justice Lemuel Shaw commented on Mansfield’s reasoning:
[B]y positive law, in this connection, may be as well understood customary law as the enactment of a statute; [and] the word is used to designate rules established by tacit acquiescence, or by the legislative act of any state, and which derive their force [and authority] from such acquiescence or enactment, and not because they are the dictates of natural justice, and as such of universal obligation.34
To this definition Phillips added the following:
Positive law is the term usually employed to distinguish the rules, usages, and laws which are made by man, from those which God has implanted in our nature. It matters not whether these rules and laws are written or unwritten, whether they originate in custom, or are expressly enacted by Legislatures. In a word, positive means arbitrary, and is used as opposed to moral. 35
When combined, these two definitions show that, to Wendell Phillips, law represented the following principles:
(1) fidelity to custom/tradition and/or text;
(2) an emphasis on rules; and
(3) a legal irrelevancy of moral obligations. Out of these principles emerged an unwavering commitment to majority rule and a limited conception of the proper judicial role.
Lysander Spooner offered a very different definition of the law. Indeed, in an 1846 letter to George Bradburn, a close acquaintance, Spooner concluded that Phillips’s criticism of his book served to demonstrate that Phillips “is no lawyer. . . . He lacks one indispensable requisite of a lawyer—to wit, a knowledge of the purpose of law.” Why was this important? As Spooner proceeded to explain, “It is an old saying that a man cannot know the law, until he knows the reason of the law.”36 Phillips, Spooner concluded, did not know “the reason of the law” and cared little about respecting the classic libertarian commitment to the political primacy of the individual. In Part First, after bemoaning the fact that “popular opinions” of both “the true definition of law” and “the principle, by virtue of which law results from” were “very loose and indefinite,” Spooner asserted that law is “an intelligible principle of right, necessarily resulting from the nature of man.”37
Departing sharply from Phillips, he did not see law as “an arbitrary rule, that can be established by mere will, numbers or power.”38 He would not accept that the morality of a law was irrelevant, because whether or not something was in fact a “law” could only be determined by judging its concordance with the dictates of natural justice, dictates which spoke of the “moral obligations” of individuals.39 The “principle, by virtue of which law results” is “the rule, principle, obligation or requirement of natural justice,” whose true origins lie in individuals’ natural rights. From this line of reasoning emerges the conclusion that “[t]he very idea of law originates in men’s natural rights.”40
II. SPOONER VERSUS PHILLIPS: AN OVERVIEW OF THEIR “GREAT DEBATE”
20 Letter from Lewis Tappan to L.A. Chamerovzow (Apr. 13, 1855), quoted in A SIDE-LIGHT ON ANGLO-AMERICAN RELATIONS, 1839–1858: FURNISHED BY THE CORRESPONDENCE OF LEWIS TAPPAN AND OTHERS WITH THE BRITISH AND FOREIGN ANTI-SLAVERY SOCIETY 357, 359 (Annie Heloise Abel & Frank J. Klingberg eds., 1927) (emphasis added).
21 Helen J. Knowles, The Constitution and Slavery: A Special Relationship, 28 SLAVERY & ABOLITION 309 (2007).
22 The inscription on the bronze statue of Phillips, dedicated in 1915 and situated in the Boston Public Garden, reads “Prophet of Liberty, Champion of the Slave.”
23 Wendell Phillips, Remarks at Faneuil Hall Meeting (Oct. 30, 1842), reprinted in THE LIBERATOR #45, Nov. 11, 1842 (on file with the New York University Journal of Law & Liberty).
26 Id. at 3. In addition to Madison’s Notes, Phillips excerpted a speech given by Luther Martin to the Maryland legislature; the debates from the state ratification conventions in Massachusetts, New York, Pennsylvania, Virginia, North Carolina, and South Carolina; the Federalist, numbers forty-two and fifty-four; the debates in the first Congress; the address of the executive committee of the AA-SS, given by William Lloyd Garrison at that organization’s tenth anniversary celebration in 1844; a letter from Francis Jackson to Governor George N. Briggs (1844); and extracts from speeches given by Daniel Webster and John Quincy Adams (1844). Pro-Slavery Compact is, as Stanley Burton Bernstein has written, a “scissors-and-paste pamphlet.” Stanley Burton Bernstein, Abolitionist Readings of the Constitution 148 (1969) (unpublished Ph.D. dissertation, Harvard University) (on file with the New York University Journal of Law & Liberty).
28 Id. at 57–58.
31 (1772) 98 Eng. Rep. 499 (K.B.).
32 HAROLD M. HYMAN & WILLIAM M. WIECEK, EQUAL JUSTICE UNDER LAW: CONSTITUTIONAL DEVELOPMENT 1835–1875, at 88 (1982).
33 35 Mass. 193 (1836).
34 Id. at 212 (quoted in PHILLIPS, supra note 15, at 85 (the italics were added by Phillips, and the words in brackets represent those that he failed to include in the quotation)).
35 PHILLIPS, supra note 15, at 85.
36 Letter from Lysander Spooner to George Bradburn (Mar. 5, 1846) (on file with the New-York Historical Society), available at http://www.lysanderspooner.org/NY51.HTM. On April 12, 1908, the New York Herald reported that Benjamin R. Tucker’s Unique Bookstore (which stocked libertarian and anarchist volumes), in New York City, was lost to fire. Amongst the destroyed materials were manuscripts entrusted to Tucker by Spooner, one of his mentors. JAMES J. MARTIN, MEN AGAINST THE STATE: THE EXPOSITORS OF INDIVIDUALIST ANARCHISM IN AMERICA, 1827–1908, at 273 (Ralph Myers Publisher 1970) (1953); WENDY MCELROY, THE DEBATES OF LIBERTY: AN OVERVIEW OF INDIVIDUALIST ANARCHISM, 1881–1908, at 20 (2003). Although Spooner’s ‘papers’ did not survive, approximately four hundred letters did—although where they were actually stored is not clear. Transcripts of the majority of Spooner’s letters are available online at www.lysanderspooner.org. The originals are held at the New-York Historical Society in New York City, New York and at the Boston Public Library in Boston, Massachusetts.
37 SPOONER, supra note 3, at 5.
39 The “true and general meaning” of law, he wrote, is “that natural, permanent, unalterable principle, which governs any particular thing or class of things. The principle is strictly a natural one; and the term applies to every natural principle, whether mental, moral, or physical. Thus we speak of the laws of mind; meaning thereby those natural, universal and necessary principles, according to which mind acts, or by which it is governed. We speak too of the moral law; which is merely an universal principle of moral obligation, that arises out of the nature of men, and their relations to each other . . . .” Id. at 5–6.
40 Id. at 6.