III. WENDELL PHILLIPS: GIVE ME HISTORY NOT LIBERTY!

One of the most important things to understand about the Phillips-Spooner debate is that the text of the Constitution alone could not conclusively support the arguments of either Phillips or Spooner.41 For Phillips, the way in which to determine the intentions of the Framers was to look to external, historical sources. He was enamored with the historical mystique that attached to the writings excerpted in his Pro-Slavery Compact, even if they did seem to prove that the Framers had made an “agreement with hell.”42 Interestingly, the importance of Madison’s Notes43—which in 1844 Phillips heralded as the primary indication of the Framers’ evil intentions44—was significantly reevaluated in the Review.45 Indeed, by the time he wrote the Review in 1847, Phillips had made a conscious move away from his earlier endorsement of the interpretive value of the Notes. 46 Phillips even went so far as to concede that Spooner was correct in his evaluation “that those men [the Framers] were employed merely to draft the Constitution. Their office was that of clerks.”47 What Phillips would not accept, however, was that this fact completely devalued the Notes. He pointed out that the product of the Framers’ work was sent to state conventions that met “in the name of the people” in order to determine the document’s ratification.48 More importantly, this historical evidence made an essential contribution to our understanding of the all-too-often ambiguous Constitution. This was because of the central role he believed “contemporaneous exposition” played in legal interpretation and construction.49 Phillips’s faith in this historical material—a faith that prevented him from ever coming to terms with the Constitution’s genuine commitment to individual liberty—was demonstrated when he sought to counter Spooner’s arguments by showing that they did not comport with the “ugly reality” that was the judiciary’s “pro-slavery” readings of the Constitution.50 For support of his method of constitutional interpretation, Phillips triumphantly observed that there was no need to go further than the authoritative word of the Supreme Court itself. Take, for example, Chief Justice John Marshall’s opinion in Cohens v. Virginia. 51 Here, said Phillips, was an opinion that clearly legitimized consultation of external, historical sources, as evidenced by the following passage: Great weight has always been attached, and very rightly attached, to contemporaneous exposition. . . . The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed.52 Passages such as these became the evidentiary cornerstones of Phillips’s argument that only by looking at contemporaneous usage could a law be labeled as unjust or wicked: “words, when doubtful and ambiguous, are to be interpreted by the context, by the object sought, and by contemporaneous usage,”53 a methodology that justified the consultation of external materials such as Madison’s Notes. Were we to go in search of judicial vindication of this argument, then surely we would need to look no further than Marshall’s opinion in McCulloch v. Maryland, where he uses “subject,” “context,” and “intent” to determine the meaning of “necessary.”54 As Christopher Wolfe’s research shows, however, this is not an example of a Marshallian adherence to “extrinsic” intent; rather, it is one very good example of the Chief Justice’s conception of constitutional interpretation based on “intrinsic” intent.55 The following excerpt from Ogden v. Saunders 56 represents a “typical general statement”57 of Marshall’s rules of interpretation: To say that the intention of the instrument must prevail; that this intention must be collected from its words, that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers;—is to repeat what has been already said more at large, and is all that can be necessary.58 This elaborates on the intrinsic intent that Marshall pursued with the approach he adopted in McCulloch. For the Chief Justice, “interpretation is not a ‘mechanical’ process in which a set number of technical rules is applied seriatim. It is rather the prudential application of complex and overlapping rules to a given set of facts.”59 Marshall arrived at his understanding of ambiguous words by looking at the “cumulative interaction” of, amongst other things, the subject, context, and intent that were by no means independent factors.60 They were factors that could be used to interpret the Constitution in accordance with the “general” principles of the Framers.61 An understanding of one clause could not, Marshall believed, be achieved without consideration of the entire document of which it was a part.62 In Pro-Slavery Compact and Review, therefore, Wendell Phillips took aim at the “ugly reality” of a Supreme Court making decisions by expressing fidelity to a legal document that sanctioned slavery. He was not, however, attacking the justices by analyzing their work on their own terms. He used evidence of extrinsic intent in order to criticize opinions based on rules of interpretation reflecting the intrinsic nature and structure of the law. These were the intrinsic intentions of the document upon which Lysander Spooner based his understanding of the relationship between slavery and the Constitution.

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

 

41 Cf. Hans W. Baade, “Original Intent” in Historical Perspective: Some Critical Glosses, 69 TEX. L. REV. 1001, 1047 (1991) (only pointing to Spooner, rather than both Spooner and Phillips, as someone who could not “derive any positive support for his thesis” from the Constitution’s text).

42 DOCUMENTS OF UPHEAVAL, supra note 4.

43 Notes of Debates in the Federal Convention of 1787 Reported by James Madison (Ohio University Press 1966) (1840).

44 PHILLIPS, supra note 15, at 6 (stating that Madison’s Notes demonstrate that “our fathers bartered honesty for gain and became partners with tyrants that they might share in the profits of their tyranny”).

45 PHILLIPS, supra note 11, at 32–33.

46 As Phillips explains, Spooner’s writings influenced this change of mind. As Professor Baade points out, though, given the close attention paid by Phillips to the Supreme Court’s work, an additional factor was probably the Court’s opinion in Aldridge v. Williams, 44 U.S. 9 (1845), wherein Chief Justice Taney rejected the interpretive validity of Madison’s Notes. Baade, supra note 41, at 1050.

47 PHILLIPS, supra note 11, at 32.

48 Id. (emphasis in original).

49 As justification for the use of such sources, Phillips cited “the oft-repeated maxim of Lord Coke, ‘Contemporanea expositio est optima et fortissima in lege.’ (Contemporaneous exposition is of great weight and authority in the law.).” Id. at 28. Phillips also cited The Federalist No. 83, presumably referring to Hamilton’s statement that “[t]he rules of legal interpretation are rules of common-sense, adopted by the courts in the construction of the laws.” Id. at 30 (quoting THE FEDERALIST NO. 83, at 519 (Alexander Hamilton) (Benjamin F. Wright, ed., 2002)). (To read this statement as justifying a positivist method of constitutional interpretation is, however, to overlook the content of No. 83 in its entirety). Other justifications that Phillips cites include various passages from Joseph Story’s COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (Melville M. Bigelow ed., William S. Hein & Co. 1994) (1891) and numerous Supreme Court opinions. PHILLIPS, supra note 11, at 30–31.

50 PHILLIPS, supra note 11, at 3.

51 19 U.S. (6 Wheat.) 264 (1821).

52 Id. at 418; see PHILLIPS, supra note 11, at 29.

53 PHILLIPS, supra note 11, at 29.

54 17 U.S. (4 Wheat.) 316, 414–15 (1819).

55 Christopher Wolfe, John Marshall & Constitutional Law, 15 POLITY 5, 10 (1982) (emphasis added).

56 25 U.S. (12 Wheat.) 213 (1827).

57 Wolfe, supra note 55, at 7; cf. John Choon Yoo, Note, Marshall’s Plan: The Early Supreme Court and Statutory Interpretation, 101 YALE L.J. 1607, 1619 (1992) (describing Ogden as a “general statement” of Marshall’s interpretive methodology).

58 Ogden, 25 U.S. (12 Wheat.) at 332.

59 Wolfe, supra note 55, at 11.

60 Id.

61 On the occasions that Marshall did look to external evidence of intent, it was to determine the Framers’ understanding of these principles, not their views on specific clauses or issues. Id. at 10–11.

62 Id. at 8–11.

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