When Part First was published, it made no mention of Pro-Slavery Compact. The content of Spooner’s work made it clear that it did not constitute a direct response to Phillips’s arguments. Spooner chose not to mention his intellectual adversary by name until two years later when he specifically noted that the writing of Part Second was his way of rising to the interpretive methodological challenge set by the Garrisonian.95 After all, Phillips had titled his second work Review of Lysander Spooner’s Essay on the Unconstitutionality of Slavery. What Spooner did not do, however, was to devote Part Second to a detailed discussion of the flaws of Phillips’s observations. His work was not a “review” because Spooner simply did not consider the observations worthy of a detailed response. Instead, as its name suggested, the second volume was needed because Spooner had “other matters which . . . [he] wish[ed] to put into a sequel.”96 At times during the summer of 1847, Spooner thought that he could make Part Second his last word on the subject. By August, however, his letters to George Bradburn demonstrated that Spooner was experiencing a mixture of emotions about the product of his labors. The progress he was making made him feel as though his views about the Constitution were being vindicated. Ultimately, though, he was sufficiently frustrated by the content of his work, that, before Part Second was finished, he had already begun contemplating a third part to The Unconstitutionality of Slavery. “I cannot, in the book I am now writing,” he wrote, “reply to Phillips so much in detail as I could wish to do, without leaving out more important things.”97 Even after the publication of Part Second and repeatedly stated concerns that it was too long (he described it as “verbose, obscure, and ha[ving] some repetitions that might have been avoided”), Spooner fully intended to “close up the subject” by writing another part.98 He never intended Part Second to be a “Part Second of Two.” As he wrote to Bradburn in December 1847, “I am pleased to know of your satisfaction with what is already done— and as to your desire to have something asked on other points, I can only say, ‘Have patience, and I will tell thee all.’”99 Further correspondence and a manuscript which was only ever published as a newspaper article give us glimpses of the “other points” upon which Spooner expected to “tell all.” In 1848, The Daily Chronotype, a Boston newspaper, published Spooner’s “Unconstitutionality of Slavery in the District of Columbia.” Spooner clearly intended this to form part of the next installment of his treatise.100 However, the appearance in the Chronotype was the only publication of any of the views that would have filled part three. As I have explained elsewhere, Spooner’s reading of Article I, Section 8, Clause 17 of the Constitution, the District Clause,101 had great potential to build upon previous abolitionist interpretations because it was underpinned by solid and logical legal reasoning.102 Spooner’s main argument was that the Constitution did not distinguish between the power of Congress with regard to the District and its power over the rest of the nation. In order to gain a full appreciation of the extent to which Spooner-the-abolitionist contributed to our understanding of the boundaries of liberty, it is worth considering one particular aspect of the discussion that was contained in this unpublished part of his abolitionist treatise. Unlike the first and second parts of The Unconstitutionality of Slavery, Spooner devoted a considerable portion of his District of Columbia discussion to provisions of the Bill of Rights. He wrote that the First, Second, and Fourth Amendments “all apply to the power of Congress within the District of Columbia; and they all imply personal liberty on the part of the people.”103 In Part Second, Spooner had found it necessary to expound upon the meaning of the Tenth Amendment.104 The Tenth Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Rejecting as a “bald and glaring falsehood” the interpretation that held this to mean “that the State governments had all power that was not forbidden to them,” Spooner argued that what the Amendment actually did was to impose upon the states the same principle of limited government to which the rest of the Constitution held the federal government. He wrote, “Of necessity, therefore, instead of their having all authority except what is forbidden, they [the states] can have none except what is granted.”105 By arguing that his constitutional theory imposed limits on actions by both the federal and state governments, Spooner opened himself up to calls from the abolitionist community for him to venture an opinion on whether the Bill of Rights was a similarly limiting set of constitutional provisions. And this is exactly what happened. In 1833, in Barron v. Baltimore, the Supreme Court held that the Bill of Rights did not limit actions of the state governments.106 The abolitionist community wanted to know whether Spooner believed the opposite to be true. The correspondence in the Spooner papers relating to this issue all stems from 1849, strongly suggesting that Spooner was not the only person who believed that the manuscript published in the Chronotype was the latest, but not the last, installment of The Unconstitutionality of Slavery. 107 In the spring of 1849, the New York abolitionist Gerrit Smith (who had underwritten much of Spooner’s treatise) sought, albeit indirectly, to “draw out” Spooner on the “Amendments.”108 Spooner’s initial knee-jerk reaction was to refuse to provide more commentary. He feared that other abolitionists would freely, as he believed they had done in the past, plagiarize his arguments and profit at his expense.109 By July, however, he could no longer contain his desire to respond to Smith’s request. In a letter on July 5, 1849, Spooner began by informing Smith that the significance of the question of applying the Bill of Rights to the states paled in comparison to the importance of emphasizing that they did not apply to actions of “private persons.” “Slaveholding,” he wrote, “is not an act of the government. It is merely a private crime committed by one person against another—like theft, robbery, or murder.”110 If one insisted on drawing him out on the state-national question, however, Spooner was ready with an answer. He believed that only the Second Amendment 111 applied to “both governments.”112 In a letter on July 17, Spooner reaffirmed that this was his belief.113 He never tells us why this should be so. Instead, he asks us to wait until “my third part” is published (he states that he has written it), wherein he “prove[s] that [the Second Amendment] applies to both governments” and “that the others do not.”114 For whatever reason, Part Third never appeared.115 Thanks to the Chronotype and to Spooner’s letters, however, what we do know is that had it been published, this next component of The Unconstitutionality of Slavery would have been further evidence that the true libertarian protections of the Constitution come from within that document rather than, as Wendell Phillips alleged, from external sources.
V. THE LIBERTARIAN PROMISE OF AN UNFINISHED TREATISE
95 SPOONER, supra note 2, at 156.
96 Letter from Lysander Spooner to George Bradburn (June 1, 1847) (on file with the New-York Historical Society), available at http://www.lysanderspooner.org/NY61.HTM.
97 Letter from Lysander Spooner to George Bradburn (Aug. 25, 1847) (on file with the New-York Historical Society), available at http://www.lysanderspooner.org/NY54.HTM.
98 A prominent theme contained in Spooner’s correspondence is his concern about lack of finances. It was to this that he attributed many of the flaws of Part Second. With “more time,” he wrote, “I could have improved it, but the demands of the cause, and the emptiness of my pocket, compelled me to publish now.” This suggests that there was a demand for his work that he needed to meet without delay. However, given that the letter is dominated by his complaints about lack of money, it is difficult to determine (without further research, beyond the scope of this article) just how much this demand really existed. Letter from Lysander Spooner to George Bradburn (Oct. 4, 1847) (on file with the New-York Historical Society), available at http://www.lysanderspooner.org/NY56.HTM.
99 Letter from Lysander Spooner to George Bradburn (Dec. 5, 1847) (on file with the New York Historical Society Library), available at http://www.lysanderspooner.org/NY55.HTM.
100 Lysander Spooner, Unconstitutionality of Slavery in the District of Columbia, THE DAILY CHRONOTYPE, May 12, 1848, reprinted in 5 N.Y.U J.L. & Liberty [PAGE NUMBER] (2010).
101 “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States . . . .”
102 Knowles, supra note 21, at 319–20.
103 Spooner, supra note 100.
104 Spooner did not believe, however, that it was really necessary to discuss the Tenth Amendment, because he felt (perhaps naively) that the principle of limited government that it embodied was so fundamental that it would constrain the actions of the states without needing to be stipulated in an additional provision of the Constitution. He wrote: [T]his amendment was inserted only as a special guard against usurpation. The government would have had no additional powers if this amendment had been omitted. The simple fact that all a government’s powers are delegated to it by the people, proves that it can have no powers except what are delegated. And this principle is as true of the State governments, as it is of the national one . . . .
SPOONER, supra note 2, at 272.
105 Id. at 271.
106 32 U.S. 243 (1833).
107 The issue had arisen on previous occasions, but the surviving Spooner correspondence suggests that it was not until after Part Second and the Chronotype article appeared that Spooner was strongly encouraged to address it. See Letter from George Bradburn to Lysander Spooner (Sept. 8, 1845) (on file with the New-York Historical Society), available at http://www.lysanderspooner.org/NY31.HTM.
108 Letter from Lysander Spooner to George Bradburn (Mar. 9, 1849) (on file with the N.Y. Historical Society Library), available at http://www.lysanderspooner.org/NY66.HTM#a.
109 “My answer is that if he or any body else expects to ‘draw out’ of me gratis an argument, for which I ought to be paid $100, or $200, more or less, he will probably find himself mistaken. . . . I have learned that a man must eat to live. I know too that I have given the Abolitionists nearly every valuable idea they have had for years. They have not given me bread in return. I am now literally a beggar—almost a ‘common beggar.’ If they want any more of my ideas, they must help me live. If they would have promoted, as they might, the sale of my books, or if they would have furnished me means to live and finish and publish the rest of my argument, and taken the copyright as security for their pay when it was done, I would have made no complaint. I would even have been thankful for such aid. But instead of this, they can squander thousands on men who will give them no ideas, and who have no ideas except what they steal from me. And when they want more ideas, they come to me, with all the innocence imaginable, and expect I shall stay my stomach with chips while I furnish them with ideas gratis. I’ll see ’em damned first.” Id.
110 Letter from Lysander Spooner to Gerrit Smith (July 5, 1849) (on file with the NewYork Historical Society), available at http://www.lysanderspooner.org/LT50.HTM.
111 “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST. amend. II.
112 Letter from Lysander Spooner to Gerrit Smith (July 5, 1849) (on file with the NewYork Historical Society), available at http://www.lysanderspooner.org/LT50.HTM.
113 Letter from Lysander Spooner to Gerrit Smith (July 17, 1849) (on file with the NewYork Historical Society), available at http://www.lysanderspooner.org/LT49.HTM.
114 Letter from Lysander Spooner to Gerrit Smith (July 5, 1849) (on file with the NewYork Historical Society), available at http://www.lysanderspooner.org/LT50.HTM; see also Letter from Lysander Spooner to Gerrit Smith (July 17, 1849) (on file with the NewYork Historical Society), available at http://www.lysanderspooner.org/LT49.HTM.
115 Spooner’s correspondence provides no direct clues as to why this was so, but one can surmise from his letters that the failure to publish more of The Unconstitutionality of Slavery resulted from a combination of factors—financial, personal, political, and social.