IV. LYSANDER SPOONER: GIVE ME LIBERTY . . . “[W]ITH [I]RRESISTIBLE [C]LEARNESS”63

By Spooner’s definition of law, it was clear that law and morals were not separate concepts. What role did natural justice play, however, in an interpretation of the U.S. Constitution? In order to answer this question, Spooner also looked to the writings of Chief Justice Marshall. He did so not, like Phillips, for vindication of the use of external evidence to support readings of the Constitution, but in order to find a rule of interpretation that would confirm the libertarian foundations of that document. He found that rule in United States v. Fisher,64 an opinion accurately described as “the Marshall Court’s most extensive discourse on interpretive methodology.”65 Although better known as an exposition on the Necessary and Proper Clause (predating McCulloch), Fisher was of relevance to Spooner because of the one passage of Chief Justice Marshall’s opinion that read as follows: Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to induce a court of justice to suppose a design to effect such objects.66 This Fisher rule, whose “reasonableness, propriety, and therefore truth” were proven by the fundamental principles of natural justice,67 formed the heart of Spooner’s original meaning method of interpreting the U.S. Constitution.68 Whether this rule is in fact one of construction and not of interpretation is subject to debate. I would argue that, properly understood, it is a rule of interpretation because it provides us with the operative presumption that Spooner uses to determine the original meaning of the Constitution. He assumes that people are fully aware of their natural rights.69 The original meaning of the Constitution is what the reasonable person would have understood it to be (this is a notion of “hypothetical” consent because Spooner realized, quite correctly, that the Constitution was not ratified by the unanimous consent of the people). And the reasonable person would not have consented to violations of his or her natural rights. Therefore, any such violations must be “expressed with irresistible clearness.”70 Wendell Phillips agreed with Chief Justice Shaw’s reasoning in Aves in its totality. Spooner, by contrast, agreed that the people had “tacitly acquiesced” to the Constitution, but only believed that they had done so because the document did not infringe on their rights unless it explicitly said so. Prior to the articulation of the Fisher rule in The Unconstitutionality of Slavery, Spooner permits only one role for positive law. A statute only becomes a (positive) law that is “binding, on the ground of contract, upon those who are parties to the contract, which creates the government, and authorizes it to pass rules and statutes to carry out its objects” if it is consistent with natural justice.71 The Fisher rule of legal interpretation is used to determine if this consistency exists. Given Spooner’s definition of law, it follows that government can only have the power that “individuals may rightfully delegate to it.” These delegations of power, he believed, should not be inconsistent with natural rights, whose inalienability gave them automatic supremacy over positive law.72 “[F]or the sake of argument,” however, he was willing to concede that such violations might indeed exist. This was not a huge concession, though, because this statement immediately followed it: “I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal rules of interpretation be observed.”73 If this then led to the conclusion that the people had delegated power to a government in such a manner that it violated their natural rights, then one could bemoan but not challenge the legality of these actions.74 The Fisher rule took on a major role because it provided an opening for explaining: (1) how originalist interpretation might be undertaken without recourse to extraneous evidence; and (2) why the use of such evidence was not a permissible way in which to understand legal rules. “The pith of this rule is,” Spooner explained, “that any unjust intention must be ‘expressed with irresistible clearness,’ to induce a court to give a law an unjust meaning.”75 But just what did “expressed” mean? In terms of the Constitution, was it any more helpful (or legal) to talk of the document’s “expressions” as opposed to its “intentions”? To Spooner there was little to distinguish the intention of the Constitution from that which it expressed. Original Intentions Original intent originalism has fallen from favor in recent years, to be replaced by an emphasis on the original meaning or original understanding of the Constitution, 76 and Spooner’s theory fits squarely into the original meaning originalism literature. Spooner does not, however, disavow the use of the words “intent” or “intentions” in constitutional interpretation. Indeed, one finds more references in The Unconstitutionality of Slavery to the intentions of the document than to its meaning. This is because, in Spooner’s mind, there really was no need to separate the two. Original intent(ion) originalism, as he describes it, is in fact what we today would call original meaning originalism. Where he departs from the way in which we traditionally understand original intent originalism is that he only imparts legal relevance to the intentions of the Constitution. The Framers’ intentions, interesting as they may be to historians, should play no role in determining the meaning of the Constitution.77 These intentions are determined, Spooner explains, from the words of the Constitution itself. Spooner argued that when someone (such as Phillips) says that the Constitution “intends” to sanction slavery, he or she really means that it “does” sanction slavery.78 In the absence of textual support for this assertion, there is a resort to the rhetoric of intent. This “personifies” the Constitution as a “crafty individual” that is “capable of both open and secret intentions.”79 The “open” intentions drawn from the text of the Constitution are mixed with “secret” ones drawn from external historical evidence of the Framers’ intentions. This does not, Spooner argues, lead to an understanding of the legal meaning of a document of law. “As a written legal instrument,” the Constitution “must have a fixed, and not a double meaning.” One cannot attribute to its text a “soul,” “motive,” or “personality,” with the exception of “what those words alone express or imply.”80 Using reasons very familiar to modern originalist constitutional theory, Spooner disavowed the historical relevance of Madison’s Notes and wholeheartedly condemned the worth of Jonathan Elliott’s compilation of the states’ constitutional ratification debates.81 “The intentions of the framers of the constitution (if we could have, as we cannot, any legal knowledge of them, except from the words of the constitution,) have nothing to do with fixing the legal meaning of the constitution.”82 The only intentions that have legal relevance are those of “The People”; we learn those from the Constitution’s text. The intentions of the constitutional conventions in Philadelphia and in the states are “at best a matter of conjecture and history, not of law, nor of any evidence cognizable by any judicial tribunal.”83 Spooner does allow for one particular, limited interpretive use of external evidence. We know what the legal meaning of a law is by looking at its text, but words are ambiguous and susceptible to multiple meanings. Therefore, he says, we use the following two rules of interpretation: 1. “no intention, in violation of natural justice and natural right, . . . can be ascribed to the constitution, unless that intention be expressed in terms that are legally competent to express such an intention;” 2. “no terms, except those that are plenary, express, explicit, distinct, unequivocal, and to which no other meaning can be given, are legally competent to authorize or sanction anything contrary to natural right.”84 In accordance with these rules, and that stated in Fisher, external evidence may be used to resolve the ambiguities of a law that is consistent with natural justice because such a use would be an additional means for ensuring the protection of individual rights.85

Judicial Role and Overcoming the Moral-Formal Dilemma

These rules created a limited role for judges. In terms of protecting the “Blessings of Liberty” 86 of which the Constitution speaks, however, it was an extremely important role. Spooner bemoaned the fact that the judiciary, while nominally an independent branch of government, had in fact become increasingly beholden to the wishes of the other branches. The solution to this problem, he believed, was more rigorous use of judicial review; in the interests of liberty, he saw an active role for the judiciary.87 This would not be “judicial activism” (in the pejorative sense), however, because the judges would be bound by the interpretive rules outlined above. Adoption of Spooner’s theory would not create a “countermajoritarian problem” because, as Spooner wrote elsewhere, “[t]here is no particle of truth in the notion that the majority have a right to rule, or to exercise arbitrary power over, the minority, simply because the former are more numerous than the latter.”88 Enforcement of this understanding of the relationship between majorities and minorities and application of the proper rules of interpretation would of course fall to the judiciary.89 How did Spooner actually expect the judiciary to do this work when, as Phillips argued 90 and as Robert Cover famously explained in Justice Accused, 91 many antebellum judges were actually beholden to, and took an oath to uphold, laws that were clearly antithetical to their personal anti-slavery views? How was the judiciary to overcome what Cover described as this “moral-formal” dilemma?92 When reviewing Justice Accused, Ronald Dworkin offered a normative solution to the moral-formal dilemma. He suggested that antebellum judges could have employed a constitutional theory which, while “not set out in any influential work of jurisprudence…was not unknown or foreign to contemporary lawyers.” This common law theory stated that (contrary to Phillips’s claim): the law of a community consists not simply in the discrete statutes and rules that its officials enact but in the general principles of justice and fairness that these statutes and rules, taken together, presuppose by way of implicit justification.93 Dworkin can be criticized for declining to suggest reasons why judges did not use this theory. Here, however, the most important observation is that Spooner’s interpretive framework had the potential to create far fewer juridical problems than Dworkin’s proposal. To be sure, Spooner would agree that the legitimacy of positive law should be determined by reference to its presupposed incorporation of “general principles of justice and fairness.” He could never agree, however, that fidelity to the proper judicial role would come through decision-making based on a judge’s individual belief that he was correctly applying the principles that he knew that the written law “implicitly justified.” Dworkin tries to avoid this problem by saying that: These principles were not simply the personal morality of a few judges, which they set aside in the interests of objectivity. They were rather, on this theory of what law is, more central to the law than were the particular and transitory policies of the slavery compromise.94 This may be true, but it still fails to shield the judge from the most fundamental objection to a jurisprudence that is either based upon, or incorporates principles of natural law—the objection that there is no way in which to objectively identify and determine the content and boundaries of these principles. Determining the original meaning of a law by examining its words from a natural law perspective, as Spooner did, cannot completely eradicate this problem. However, the judge who refers to “general principles of justice and fairness” as they are written into positive law should encounter fewer charges of countermajoritarian decision-making. He or she might be less likely to encounter the moral-formal dilemma than the judge who presupposes that these principles guide his or her judicial work because of an understanding that positive law implicitly justifies the existence of these principles. More importantly, they serve as an additional way of ensuring that the principle goal that judges work towards when interpreting the U.S. Constitution is the limiting of government in order to protect individual liberty.

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

63 SPOONER, supra note 2, at 19.

64 6 U.S. (2 Cranch) 358 (1805).

65 Yoo, supra note 57, at 1619.

66 Fisher, 6 U.S. (2 Cranch) at 390, quoted in SPOONER, supra note 3, at 18–19.

67 SPOONER, supra note 2, at 155.

68 Although Fisher dealt with statutory rather than constitutional construction and interpretation, Spooner would argue that there was no legal difference between the two: “A constitution is nothing but a contract, entered into by the mass of the people, instead of a few individuals. This contract of the people at large becomes a law unto the judiciary that administer it, just as private contracts, (so far as they are consistent with natural right,) are laws unto the tribunals that adjudicate upon them. All the essential principles that enter into the question of obligation, in the case of a private contract, or a legislative enactment, enter equally into the question of the obligation of a contract agreed to by the whole mass of the people. This is too self-evident to need illustration.” SPOONER, supra note 2, at 65.

69 SPOONER, supra note 2, at 141, 153. For a useful, and concise discussion of the differences between interpretation and construction, see Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 NW. U. L. REV. 923, 973–74 (2009).

70 SPOONER, supra note 2, at 190.

71 Id. at 8.

72 Id. at 8, 14.

73 Id. at 16–17.

74 Id. at 17–19. In both parts of The Unconstitutionality of Slavery, Spooner defines and provides detailed analysis of numerous rules of interpretation. See id. at 60–65, 155–205. In this article I only identify the most important of these rules.

75 SPOONER, supra note 2, at 190 (emphasis in original).

76 Some influential works that are part of the ever-growing body of literature on this subject are Lawrence B. Solum, Semantic Originalism (Univ. of Ill. Coll. of Law, Ill. Pub. Law & Legal Research Paper Series, No. 07-24, 2008), available at http://ssrn.com/abstract=1120244; RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION (2004); KEITH E. WHITTINGTON, CONSTITUTIONAL INTERPRETATION:2010]

TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW (1999); KEITH E. WHITTINGTON, CONSTITUTIONAL CONSTRUCTION: DIVIDED POWERS AND CONSTITUTIONAL MEANING (1999).

77 SPOONER, supra note 2, at 121.

78 Id. at 57–58.

79 Id.

80 Id. at 58

81 Id. at 116–18 (quoting JONATHAN ELLIOTT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, at iii (Jonathan Elliot ed., 2nd ed. 1836) (1830)).

82 SPOONER, supra note 2, at 114.

83 Id. at 21.

84 Id. at 58–59 (emphasis in original).

85 Id. at 190–91.

86 U.S. CONST. pmbl.

87 SPOONER, supra note 2, at 15.

88 LYSANDER SPOONER, AN ESSAY ON THE TRIAL BY JURY (1852), reprinted in THE COLLECTED WORKS OF LYSANDER SPOONER, VOL. II: LEGAL WRITINGS (I) 207 (Charles Shively ed., M & S Press 1971).

89 See Larry M. Hall, The Political Thought of Lysander Spooner, at 125 (1986) (unpublished M.A. thesis, University of Tennessee-Knoxville) (on file with the New York University Journal of Law & Liberty); SPOONER, supra note 2, at 130. I discuss Spooner’s intended role for the judiciary in more detail in Helen J. Knowles, “The Pen Is Mightier Than The Sword”: Lysander Spooner’s Constitutional Response to Increasing Abolitionist Violence in the 1850s (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1465876.

90 See WENDELL PHILLIPS, Removal of Judge Loring, (Feb. 20, 1855) in SPEECHES, LECTURES, AND LETTERS 159 (James Redpath, 3d ed. 1868) (1863) (rejecting Judge Greely’s defense that he did not violate any positive Massachusetts law and that he acted in accordance with the U.S. Constitution in upholding the Fugitive Slave Law of 1850).

91 COVER, supra note 11.

92 Id.

93 Ronald Dworkin, The Law of the Slave-Catchers, TIMES LITERARY SUPPLEMENT, Dec. 5, 1975, at 1437 (book review).

94 Id.

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