Liberty Against Privilege: The Life and Thought of Lysander Spooner
Zwolinski discusses what makes Lysander Spooner his favorite libertarian.
Over the past several years, I’ve been writing a book with John Tomasi about the intellectual history of libertarianism. In that book, we trace contemporary libertarianism back to what we claim are its origins in mid‐19th century Britain and France.
When I tell people about this project, they often ask me who my favorite libertarian is. That’s always been a tough question for me to answer. Researching this book has provided me with the opportunity to read deeply into the works of so many fascinating and neglected figures – from Frédéric Bastiat and Gustave de Molinari in France, to Herbert Spencer and Thomas Hodgskin in Britain, to William Graham Sumner and Voltairine de Cleyre in America. Being libertarians, of course, none of these individuals agree with each other about much. But each has been a rich source of insight, entertainment, provocation, and sometimes frustration(!) in their own way.
But now, as our project draws to a close, I think I finally have an answer to the question. It’s a name that will be familiar to many libertarians, though probably not to anybody else. And even libertarians, I suspect, are familiar with only a small portion of what makes this person truly fascinating.
My favorite libertarian – at least at the moment! – is an insanely‐bearded, cantankerous, brilliant, radical abolitionist and anarchist lawyer from the late 19th century United States named Lysander Spooner.
I’m taking part in a discussion on Spooner’s ideas over at the Liberty Matters website now, and that discussion will certainly bring out a number of the reasons I have for admiring the man and his work. He was a man of deep conviction, and with an unusual power to stir those same convictions in others through his writings. He was an insightful social critic, with a keen ability to identify the root causes of a variety of apparently disconnected political and economic problems. And he was never afraid – or if he was he didn’t show it! – to put his beliefs into action. Most of us libertarians have a soft spot in our heart for the underdog individual who puts his own well‐being at risk for the cause of justice and liberty. And, again and again throughout his storied life, Spooner did just that.
Spooner wrote about a variety of topics – from slavery to intellectual property to his own proposed system of free banking. And of course a single essay cannot possible do justice to the range and depth of Spooner’s ideas on these topics. What I hope to do instead is highlight one crucially important theme that ran consistently throughout Spooner’s life. From his earliest essays straight through to his very last, and in many of the causes that drove him to move beyond writing to social activism, Spooner expressed the idea that state power is a tool that is almost always used to benefit the powerful at the expense of the poor and marginalized. What those groups need, therefore, is not more state power, but less. What they need is liberty.
You can see this idea in the most celebrated episode in Spooner’s life – his effort to compete against the United States Post Office with his own private alternative, the American Letter Mail Company. Competing with the US government in this arena was illegal, of course, and Spooner hoped the government would try to shut him down so that he might argue the unconstitutionality of the government’s monopoly before the Supreme Court. But Spooner saw in that monopoly more than just an unjust restriction of people’s economic liberty. It was that, to be sure. But it was also a way for the government to confer privileges upon an economically and politically powerful group of citizens at the expense of another, less powerful group. A government monopoly on mail made it possible to subsidize delivery in the rural South, where low volume and large distances made business relatively unprofitable, by charging higher rates in the urban North. But why should a factory worker in Chicago be forced to pay higher rates for postage merely in order that a wealthy landowner in Virginia might pay less? As Spooner saw it, the postal monopoly was doubly immoral. It furthered the unworthy goal of regressive redistribution, by the unjust means of restrictions on individuals’ freedom of labor and contract.
This same idea played an important role in another lesser known episode from Spooner’s early career. As a 27‐year‐old would‐be lawyer, one of his first public campaigns took on the government of his home state of Massachusetts. The rules of that state required non‐college graduates to study for five years in a lawyer’s office before being admitted to the bar, as opposed to only three years for college graduates. Since a college education at that time was almost entirely classical rather than practical in nature, a college degree was a luxury largely out of reach of members of the working class, and Spooner saw the Massachusetts rule as a form of unjustifiable discrimination against the working class. “No one has ever dared advocate, in direct terms,” Spooner argued, “so monstrous a principle as that the rich ought to be protected by law from the competition of the poor.” 1 Spooner’s argument carried the day, and in 1836 the restriction was repealed by the Massachusetts legislature.
Ten years later, Spooner published one of his earliest pieces of systematic social criticism – a little‐known essay revealingly entitled, “Poverty: Its Illegal Causes and Legal Cure.” According to Spooner’s analysis in that pamphlet, poverty and inequality in the United States are not inevitable, nor are they simply the result of the natural inequality of human capability and effort. They are, rather, largely the result of “arbitrary and unjust legislative enactments, and false judicial decisions, which actually deprive a large portion of mankind of their right to the fair and honest exercise of their natural powers, in competition with their fellow‐men.” 2
Spooner identified a number of specific policies as contributing to this injustice, including artificial limits on the collection of debts from corporate bodies — limits that benefit “privileged debtors” at the expense of society as a whole. 3 But his most severe criticism was directed at laws that restricted free competition in banking and interest. These laws have the effect of restricting the availability of capital, which in turn hinders poor laborers without any accumulated capital of their own from purchasing their own land or starting their own businesses. They are thus left with no alternative but to work for someone else for wages – a position that Spooner believed keeps them trapped in poverty for the long‐term.
Legal restrictions on the maximum rate of interest, for example – so‐called anti-“usury” laws – make it difficult for risky borrowers to obtain any (legal) loan at all. The consequence, Spooner notes,
is that the loanable capital of society is monopolized almost entirely by those few, those very few, who wish to borrow, and can offer the most approved security; while the mass of those, who have not capital of their own, but who, if left free to make their own contracts, would be able to obtain a portion sufficient to employ their own hands upon, are now, for the want of capital on which to bestow their labor, compelled to sell their labor to those who have, by means of the usury laws, monopolized the capital. 4
Usury laws thus hurt the working poor. But they do not help the idle rich either. After all, those with ample capital to lend would prefer to be able to lend it at the highest rate of interest that the market can bear. From where, then, does the support for such laws arise? Here as elsewhere, Spooner displays a keen awareness of the insights that would later be formalized by the public choice school of economics. Anticipating Director’s Law, Spooner notes that usury laws are supported by neither the rich nor the poor, but by the middle class businessmen “who control the legislation of the country, and who, by means of usury laws, can sparge money from those who are richer, and labor from those who are poorer than themselves – and thus make fortunes.” 5
One might suppose that those who are poor would try to use the power of the state to weaken the property rights of the rich and thereby better their own condition. But Spooner sees that the game of politics is one the poor will never win. So long as the government is strong enough to violate the property rights of its subjects, Spooner notes, “so long will [property] be perpetually infringed, invaded, and denied, by innumerable legislative devices of the cunning and the strong, which a large portion of society, the ignorant, the weak, and the poor, can neither ferret out, nor resist.” 6 Once the idea of equal rights before the law is abandoned, Spooner would later observe, “the boldest, the strongest, the most fraudulent, the most rapacious, and the most corrupt, men will have control of the government, and make it a mere instrument for plundering the great body of the people”. 7
Spooner was best known in his time (and probably still today in ours) for his role in the abolitionist movement, especially for his legal arguments concerning the unconstitutionality of slavery. And, of course, it would be difficult to imagine an institution that better illustrates Spooner’s idea of the law serving as an instrument of the strong against the weak. Chattel slavery was an institution that denied individual’s property in their own bodies and their own labor, and treated them as mere commodities to be worked to death for the profit of others. It should be no surprise that Spooner detested it.
Even here, though, with respect to this most dire violation of natural law, Spooner thought it was a mistake to look to politics for salvation. The state, itself an instrument of authority and oppression, could never be hoped to act as an instrument of liberation. If freedom was to be had, it must come from the bottom‐up, not the top‐down. This is why Spooner refused to participate in the Liberty Party – an antislavery party formed in 1840 with the goal of ending slavery through political reform. When it came to abolition, Spooner had a much more radical plan in mind.
It’s important to remember that while Spooner famously devoted a great deal of time to arguing for the unconstitutionality of slavery, in the end he didn’t really think that what the law said about slavery mattered much at all. What mattered was justice. And if the law was unjust, well, so much the worse for the law.
Thus, even if the Fugitive Slave Act of 1850 made it a crime to shelter runaway slaves, that didn’t make it immoral to do so. Quite the contrary. In his essay, “A Defense of Fugitive Slaves,” Spooner wrote that “the rescue of a person, who is assaulted, or restrained of his liberty, without authority of law, is not only morally, but legally, a meritorious act;” everyone should “go to the assistance of one who is assailed by assassins, robbers, ravishers, kidnappers, of ruffians of any kind.” 8
In 1858, Spooner went further. In a broadside entitled, “To the Non‐Slaveholders of the South: A Plan for the Abolition of Slavery,” Spooner argued that since slaves had a natural right to their liberty, then “so long as the governments, under which they live, refuse to give them liberty or compensation, they have the right to take it by stratagem or force.” Furthermore, Spooner argued, it is the duty of all who can to assist them in this endeavor. Non‐slaveholding Southerners therefore ought to help slaves to run away, to hire them as laborers, and to sell them guns and teach them how to use them. Spooner went on:
We especially advise the flogging of individual Slave‐holders. This is a case where the medical principle, that like cures like, will certainly succeed. Give the Slave‐holders, then, a taste of their own whips. Spare their lives, but not their backs. The arrogance they have acquired by the use of the lash upon others, will be soon taken out of them, when the same scourge shall be applied to themselves. A band of ten or twenty determined negroes, well armed, having their rendezvous in the forests, coming out upon the plantations by day or night, seizing individual Slaveholders, stripping them and flogging them soundly, in the presence of their own Slaves, would soon abolish Slavery over a large district. 9
Spooner apparently planned to distribute this broadside widely, but when John Brown beat him to the punch by conducting his failed raid on Harper’s Ferry, Spooner aborted his plan. He then turned his attention to another, equally audacious plan to secure Brown’s freedom. He planned an attack up the Chesapeake Bay and James River that would culminate in the kidnapping of governor Henry Wise of Virginia on his evening walk, who would then be held for ransom in exchange for Brown’s release.
In what was probably a fortunate turn of events for Spooner, he was never able to raise sufficient support to put his plan into motion. Still, Spooner remained a committed radical for the rest of his life, not just in the cause of abolition, but in other causes of social justice as well. In 1880, Spooner published “Revolution: The Only Remedy for the Oppressed Classes of Ireland, England, and Other Parts of the British Empire,” in which he argued that the oppressed Irish peasantry were morally entitled to engage in violent revolution against their rulers.
Apart from its radicalism, one of the most striking features of this essay is its analysis of the issue of historical injustice in the context of a libertarian theory of property rights. Spooner argued that the Irish landlords should be dispossessed of their holdings, and that the lands should be returned to the peasantry. After all, he argued, those lands “were originally taken by the sword, and have ever since been held by the sword…and robbery gives no better title to lands than it does to other property.”
Nor did the fact that the thefts took place long in the past change matters for Spooner.
Every successive holder not only indorses all the robberies of all his predecessors, but he commits a new one himself by withholding the lands, either from the original and true owners, or from those who, but for those robberies, would have been their legitimate heirs and assigns. 10
Here Spooner raises a vital and difficult issue that, to my mind, has still not received a satisfactory treatment from libertarians. It is an indubitable fact that most if not all currently existing property titles are tainted by historical injustice. You may have bought your land legitimately from the previous owner, and she from the owner before that, but follow the chain back far enough and, sure enough, you will come to a point where someone took it from someone else without asking. And of course, in some cases we don’t have to travel very far back in time at all. If taxes are unjust, then the subsidies they finance are unjust, and so too are the property titles begat by those subsidies. In a corporatist world such as ours, the taint of government force is nearly ubiquitous.
It is also, I think, an indubitable fact that these historical injustices have pernicious distributive effects. Certain classes of people benefit from them while other classes suffer. And it does not seem too implausible to suppose that the classes that benefit on the whole will be those with the economic and social wherewithal to make them effective manipulators of the political machinery, while those who lose will tend to be the economically and social marginal.
But what, then, should we do about all this? In the case of temporally distant injustices, many of the perpetrators and (original) victims are long dead. And even in the case of more recent injustices, it seems impossibly difficult to sort out who is liable to whom and for what. Are you a net beneficiary of government theft, or a net victim? Are you a maker or a taker? How many miles do you drive on the government’s highways?
It’s an impossible question. But it’s also one that demands an answer. For to ignore the problem because it’s too difficult to resolve is, in its own way, to settle upon an answer. “Let bygones be bygones. Sure, a lot of awful stuff was done in the past, but that’s over now. Let’s just agree to respect property rights and abide by the rule of law starting now.”
I’m not sure if that’s the correct answer. It might be. But I also think it’s an answer that sounds awfully convenient when given by one of the people who has emerged at the top of the murderous and rapacious mess that is our collective history. I suspect that Spooner would feel the same.
1. To the Members of the Legislature of Massachusetts The Collected Works of Lysander Spooner (Vol. 1, p. 16) Indianapolis, Indiana: Liberty Fund.
10. Revolution, p. 126. Here Spooner echoes Herbert Spencer, who in the original 1851 edition of his Social Statics, asked rhetorically, “How long does it take for what was originally a wrong to grow into a right? At what rate per annum do invalid claims become valid?” (Social Statics, Chapter IX).