Smith explains how Spooner reconciled his theory of nonvoting with his view that the Constitution is antislavery, and how he treated discussions of slavery during the Constitutional Convention.

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

After making some preliminary remarks in previous essays about Lysander Spooner’s The Unconstitutionality Slavery (published in two parts, 1845 and 1847), I abruptly switched to some discussions of slavery during the Constitutional Convention. I did this for a reason. I wanted to illustrate the difficult hurdle that the political abolitionists had to overcome if they hoped to mount a credible argument that the U.S. Constitution, properly understood, is antislavery.

I stressed two major themes—discussions of the three‐​fifths rule and debates over prohibiting any federal interference with the slave trade for twenty years. In both of these debates slavery was mentioned repeatedly, so the point of the discussions was never in doubt. But the words “slave” and “slavery” are never mentioned in the Constitution itself. This was probably a result of insistence by the antislavery delegates, who did not want the Constitution marred by explicit references to the despised institution, so other words, such as “all other persons,” were substituted. But there was never any attempt to conceal the meaning of these substitute expressions; they were discussed openly in state ratifying conventions and in newspapers, pamphlets, and other public media.

Nevertheless, the absence of any mention of “slaves” and “slavery” in the text of the Constitution became the bulwark of the case that the Constitution does not sanction slavery and is in fact antislavery. This argument became more difficult to prosecute after the publication, in 1840, of James Madison’s detailed notes revealed the prominent role played by discussions and compromises over slavery during the Philadelphia Convention. But champions of the antislavery interpretation did not give up. They soon found their greatest champion in Lysander Spooner, author of The Unconstitutionality of Slavery—a tract that was praised by Gerrit Smith and other members of the abolitionist Liberty Party, who used Spooner’s arguments to justify their political activities.

Spooner was not an easy ally for his abolitionist fans to figure out. Despite his considerable support for their position that the Constitution is antislavery, he refused to support any political party (including the abolitionist Liberty Party) or to vote, so his practical position aligned with the anti‐​political Garrisonians more than with the political activists. The problem here lay in Spooner’s implicit anarchism; this caused his arguments to run along two lines with different practical consequences. On the one hand, he maintained that if the Constitution is seen as a valid contract, as its supporters believed it to be, then it must be understood as antislavery, so political abolitionists could engage in political activity with a clear conscience. But if the Constitution was not a valid contract, as Spooner insisted in No Treason (1867) and in other tracts, then it lacked all moral authority and could not justify anything. The Constitution did not bind the southern states to the Union and so could not justify the charge of treason or sedition against those states. As Spooner wrote in No Treason, No. 1, two years after the northern victory:

The North has thus virtually said to the world: It was all very well to prate of consent, so long as the objects to be accomplished were to liberate ourselves from our connexion with England, and also to coax a scattered and jealous people into a great national union; but now that those purposes have been accomplished, and the power of the North has become consolidated, it is sufficient for us—as for all governments—simply to say: Our power is our right.

In proportion to her wealth and population, the North has probably expended more money and blood to maintain her power over an unwilling people, than any other government ever did. And in her estimation, it is apparently that chief glory of her success, and an adequate compensation for all her own losses, and an ample justification for all her devastation and carnage of the South, that all pretence of any necessity for consent to the perpetuity or power of the government, is (as she thinks) forever expunged from the minds of the people. In short, the North exults beyond measure in the proof she has given, that a government, professedly resting on consent, will expend more life and treasure in crushing dissent, than any government, openly founded on force, has ever done.

When Spooner’s friend George Bradburn expressed disappointment that the same man who wrote the best defense of the unconstitutionality of slavery also refused to vote for Liberty Party or other abolitionist candidates, Spooner replied:

I do not rely upon “political machinery” (although it may, or may not, do good, according as its object are, or are not, legal and constitutional)…because the principle of it is wrong; for it admits…that under a constitution, the law depends on the will of majorities, for the time being, as indicated by the acts of the legislature.

Spooner’s problems with the Constitution obviously ran deeper than the slavery controversy. He particularly objected to the taxing power vested in the federal government: “no robbery is more flagrant or palpable…than taxing men for the support of government, without their personal consent.” After Spooner joined other abolitionists in condemning the Free Soil Party, they expected him to join in calling for a convention to nominate an abolitionist candidate. But Spooner declined, and in the process he explained his stand on voting. “If I were going to vote for any candidates, I should certainly wish them to be ‘thorough abolition candidates.’” Nevertheless, Spooner’s anarchistic political principles, which few abolitionists shared, prevented him from aiding “in nominating any candidates whatever.” Although the Constitution was much better than many critics thought it to be, it was so deeply flawed that “honest men who know its true character” could not “consistently support” it.

We should not suppose that Spooner’s arguments for the unconstitutionality of slavery were insincere. True, in one sense they were superfluous, given Spooner’s belief that unjust contracts could not qualify as binding agreements; they could impose no moral obligation to commit acts that violated individual rights. Thus, even if the Constitution were proslavery, it could not obligate anyone, including judges, to enforce slavery laws, so in this sense what the Constitution may say in regard to slavery was irrelevant. But Spooner was wearing a different hat in The Unconstitutionality of Slavery. There he was speaking not as a legal philosopher but as a constitutional lawyer. He was laying down rules of interpretation for those who believed in the legitimate authority of the Constitution. Spooner compared this perspective to a non‐​Muslim who was defending a particular interpretation of the Koran. This nonbeliever, while rejecting the Koran as an authoritative source, could still maintain that it upheld certain doctrines and rejected others, so those Muslims who did believe the Koran to be divinely inspired should follow what it objectively teaches.

In the second part of The Unconstitutionality of Slavery, Spooner laid down fourteen rules of constitutional interpretation—procedural guidelines that, if consistently applied, will lead to the conclusion that the U.S. Constitution, properly understood, is antislavery. I will consider some of these rules in a subsequent essay; for now I want to indicate how Spooner dealt with the obvious fact that delegates to the Constitutional Convention explicitly discussed slavery and crafted several provisions as compromises between opposing sides. Spooner dealt with these historical facts by brushing them aside are irrelevant to the meaning of the Constitution. The legal meaning of the Constitution is an issue distinct from what the framers may or may not have intended. Here is how Spooner put it in Chapter IX (pp. 114–15), “The Intentions of the Convention.”

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. That convention were not delegated to adopt or establish a constitution; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived all its validity and obligation, as a frame of government, from its adoption by the people at large. Of course the intentions of the people at large are the only ones, that are of any importance to be regarded in determining the legal meaning of the instrument. And their intentions are to be gathered entirely from the words, which they adopted to express them. And their intentions must be presumed to be just what, and only what the words of the instrument legally express. In adopting the constitution, the people acted as legislators, in the highest sense in which that word can be applied to human lawgivers. They were establishing a law that was to govern both themselves and their government. And their intentions, like those of other legislators, are to be gathered from the words of their enactments. Such is the dictate of both law and common sense.

As Spooner saw the matter, the intentions of those who actually voted for the Constitution, not the intentions of its various framers, are the only relevant consideration in understanding what the Constitution means. This approach involved Spooner in some questionable conjectures. For one thing, the historian Charles Beard estimated that only 5 percent of American citizens actually voted one way or the other on the Constitution; and though the actual number was almost certainly higher, Spooner also gave a low estimate. Here again we see a conflict between Spooner qua constitutional attorney and Spooner qua legal philosopher. In other works, Spooner maintained that the low number of voters meant that a minority made decisions for the majority, but for the purpose of The Unconstitutionality of Slavery, Spooner accepted the conventional view of ratification and worked from there.