Smith discusses Spooner’s contention that the Constitution carries no moral authority but that it still can be understood as antislavery.

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.

In 1867, Lysander Spooner published the first part of No Treason, an all‐​out assault on the claim that the authority of the United States government rested on consent and that the southern states therefore committed “treason” when they seceded from the Union. Spooner wrote:

Manifestly this one thing (to say nothing of others) is necessarily implied in the idea of a government’s resting on consent, viz: the separate, individual consent of every man who is required to contribute, either by taxation or personal service, to the support of the government. All this, or nothing, is necessarily implied because on man’s consent is just as necessary as any other man’s. If, for example, A claims that his consent is necessary to the establishment or maintenance of government, he thereby necessarily admits that B’s and every other man’s are equally necessary; because B’s and every other man’s rights are just as good as his own. On the other hand, if he denies that B’s or any other particular man’s consent is necessary, he thereby necessarily admits that neither his own, nor any other man’s is necessary; and that government need not be founded on consent at all.

The American Revolution upheld this principle of individual consent as a universal right, according to Spooner. The “whole Revolution turned upon, asserted, and, in theory, established the right of each and every man, at his discretion, to release himself from the support of the government under which he and lived.” Spooner proceeded, in part two of No Treason, to maintain that the “whole authority of the Constitution” was of “no validity” unless it also was based on the individual consent of those who explicitly agreed to submit to the government it established. But this was not the case. The Constitution “was a usurpation and a lie” in this sense. “The most that can be inferred from the form, ‘We, the people,’ is, that the instrument offered membership to all ‘the people of the United States’; leaving it for them to accept or refuse it, at their pleasure.”

The number who actually consented to the Constitution of the United States, at the first, was very small. Considered as the act of the whole people, the adoption of the Constitution was the merest farce and imposture, binding upon nobody.

Moreover, those who actually consented to the Constitution could bind nobody except themselves. They could no more make political contracts that obligated future generations than they could make marriage or business contracts that were binding on future generations.

How are we to reconcile this analysis with Spooner’s argument, presented around 20 years earlier (1845 and 1847, in The Unconstitutionality of Slavery) that the Constitution is antislavery? This might suggest to the casual reader that, in 1845, Spooner upheld the validity of that document, only to change his mind later. Indeed, Charles Shively, in his Introduction to The Collected Works of Lysander Spooner, suggested that Spooner’s views became more radical during the 20‐​year interval. But this is surely wrong. There is abundance evidence in The Unconstitutionality of Slavery that Spooner held the same views at both times. As I noted in a previous essay, Spooner did not accept that validity of the Constitution in his earlier tract; he merely argued that, as a procedural matter when the Constitution is interpreted according to widely accepted rules of interpretation, it emerges as antislavery.

In The Unconstitutionality of Slavery, Spooner clearly repudiated the claim U.S. Constitution was authorized by the people. This was a theory but not a fact.

But in this country, “the supreme power” is acknowledged, in theory, to rest with the people. Our constitutions purport to be established by “the people,” and, in theory, “all the people” consent to such government as the constitutions authorized. But this consent of “the people” exists only in theory. It has no existence in fact. Government is in reality established by the few; and these few assume the consent of all the rest, without any such consent being actually given. Let us see if such be not the fact.

After taking into account the percentage of males that could actually vote for the Constitution and similar factors, Spooner concluded that only one fortieth of “the people” are needed to pass binding legislation. In fact, owing to an additional factor, the politician may “be said to represent nobody but himself.”

Yet the statutory and constitutional law, that is manufactured in this ridiculous and fraudulent manner, is claimed to be the will of “the supreme power of the state;” and even though it purports to authorize the invasion, or even the destruction, of the natural rights of large bodies of the people,—men, women, and children,—it is, nevertheless, held to have been established by the consent of the whole people, and to be of higher authority than the principles of justice and natural law. And our judges, with a sanctimony as disgusting as it is hypocritical, continually offer these statutes and constitutions as their warrant for such violations of men’s rights, as, if perpetrated by them in their private capacities, would bring upon them the doom which they themselves pronounce upon felons.

After emphasizing the moral inability of governments, including democratic governments, to override the sovereignty of natural law, Spooner claimed that all this was irrelevant to his arguments for the unconstitutionality of slavery. They are “not claimed to have anything to do with the question of the constitutionality or unconstitutionality of slavery, further than this, viz., that they indicate the rule of interpretation that should be adopted in construing the constitution.” The Constitution is a type of contract, so it should be interpreted according to the common principles of contract law, whatever its validity may be. Spooner’s arguments pertain to the rules by which the Constitution should be interpreted, not to the moral authority of the document itself. The fundamental rule of interpretation, which Spooner quoted repeatedly from a decision of the Supreme Court, is this:

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. [Spooner’s emphasis.]

Spooner continued:

The whole question of the constitutionality or unconstitutionality of slavery, is one of construction. And the real question is, only whether the rules, applicable to the interpretation of statutes, and all other legal instruments, that are enforced by courts as obligatory, shall be applied also to the interpretation of the constitution? or whether these rules are to be discarded, and the worst possible meaning of which the words are capable put upon the instrument arbitrarily, and for no purpose but to sustain slavery? This is the question, and the whole of it.

Although Spooner was not aware of any challenges to his basic rule of interpretation, according to which statutes and other legal enactments should be interpreted as pro‐​freedom unless they contain explicit and unmistakable language to the contrary, he had encountered objections to some its implications, so he decided to lay down a number of subsidiary rules. I shall summarize some of these rules in my next essay; for now I wish to mention one that relates to the problem of consent and a social contract, discussed above.

According to Spooner, the preamble of the Constitution states the overall purpose of the document and so should guide our understanding of the rest of the document. Thus the meaning of the preamble “is to be determined before we proceed to the rest of the document”; and the first thing we need to know is “who are the parties to it.” And if we assume that all the people of the United States “are parties to the constitutional contract,” we may also assume that no portion of the population, however small, would ever “consent to a constitution that should ever make them slaves, or assist in keeping them in slavery.”

But what if it is replied that slaves, having never consented to the Constitution, were never parties to it? Spooner had a clever reply to this argument.

But this reasoning would disfranchise half the population; for there is not a single constitution in the country—state, or national—to which one half of the people who are, in theory, parties to it, ever, in fact and in form, agreed. Voting for and under a constitution are almost the only acts that can, with any reason at all, be considered a formal assent to a constitution. Yet a bare majority of the adult males, or about one tenth of the whole people, is the largest number of “the people” that has ever been considered necessary, in this country, to establish a constitution. And after it is established, only about one fifth of the people are allowed to vote under it, even where suffrage is most extended. So that no formal assent to a constitution is ever given by the people at large. Yet the constitution themselves assume, and virtually assert, that all “the people” have agreed to them, else the instruments themselves are at once denied, and, of course, invalidated altogether. No one, then, who upholds the validity of the constitution, can deny its own assertion, that all “the people” are parties to it. Besides, no one, unless it be the particular individuals who have not consented, can take advantage of the fact that they have not consented.

We therefore see how Lysander Spooner used the theory of the social contract, regardless of how it had failed in practice, against those Americans who claimed that slaves could not have been among “we the people.” They had never consented, true, but neither had most other people.