Smith explores some features of Spooner’s philosophy of law, as found in The Unconstitutionality of Slavery.

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.

It may seem that The Unconstitutionality of Slavery contains little of interest to libertarian readers, apart from the significant historical role it played in the abolitionist campaign to abolish slavery. I have known many libertarians who admire Spooner and have read his better‐​known tracts, such as No Treason (1867), An Essay on the Trial by Jury (1852), and other items that I reprinted in my 1992 anthology, The Lysander Spooner Reader. In contrast, I have met very few libertarians who are familiar with The Unconstitutionality of Slavery. I wanted to reprint sections from The Unconstitutionality of Slavery in my Reader, but I was overruled by the publisher—Fox and Wilkes (the publishing arm of Laissez‐​Faire Books), in the person of Roy Childs.

Roy and I had been close friends for twenty years, and we had a number of arguments on the phone about the contents of the Reader. Roy didn’t see any contemporary relevance in Spooner’s arguments that slavery was unconstitutional prior to ratification of the 13th amendment on December 6, 1865. And I got the feeling that Roy, like many people, regarded Spooner’s position on the Constitution and slavery as so indefensible that it would make readers less likely to take him seriously as an intellectual.

I agreed with Roy, to a point, but I found it odd that Spooner’s view on the unconstitutionality of slavery would strike readers as any more eccentric that his other positions. Anarchists, after all, are unlikely to find widespread agreement among the general public in a number of areas, so the best course of action would be to present their doctrines and arguments and let readers make up their own minds.

Until recently, I had trouble giving Spooner’s arguments about the Constitution a fair hearing, given how improbable his conclusion seemed. This prejudice prevented me from reading The Unconstitutionality of Slavery with the care it deserved. It may be said that I scanned parts rather than read them. Not until around six months ago, while preparing my Lib​er​tar​i​an​ism​.org essays on Spooner, did I read both parts carefully, after which I read the tracts again at least two times, while focusing on passages that struck me as especially important. On those occasions I put aside my preconceptions about Spooner’s conclusions and attempted to study his arguments as impartially as possible. Although this did not change my mind on the constitutionality controversy, it greatly increased my respect for Spooner and his arguments, and it enabled me to correct some of my previous misconceptions about his position.

But all this was irrelevant to my desire to include passages from The Unconstitutionality of Slavery in the Reader. I was not interested in delving into the slavery controversy; rather, Spooner’s book contains interesting political observations about the nature of the state and government by consent, and it develops a general legal theory based on libertarian principles. These were the selections I wanted to reprint. The philosophy of law has not received much attention from libertarian philosophers (aside from Randy Barnett and perhaps a few others), so I thought including passages by Spooner on this important topic might inspire additional work. Spooner’s comments are scattered throughout both parts of The Unconstitutionality of Slavery, so unless a person reads the book thoroughly, which is unlikely outside a small cadre of dedicated Spooner scholars, significant passages on the philosophy of law might lie unnoticed indefinitely.

In this and in subsequent essays I shall summarize some of Spooner’s basic principles in legal theory, as found in The Unconstitutionality of Slavery. To my knowledge, some of the principles can be found only in this book.

Spooner presented the following hypothetical. Suppose a being from another planet were to read the Constitution without any historical knowledge of how it was framed or previous decisions of the Supreme Court about what it supposedly means. All the alien has is the Constitution itself and a knowledge of the English language sufficient to understand what it says according to the plain meaning of words. Would this being have any reason to suppose that slavery is supported by the Constitution? No, said Spooner. The words “slave” and “slavery” never appear in the document, so the alien must interpret words in the so‐​called slavery provisions, such as “all other persons,” as not referring specifically to slaves. Indeed, these provisions admit other interpretations. If we read them as pertaining exclusively to slavery, this is because we know the provisions emerged from discussions of slavery during the Constitutional Convention, and that American courts have told us that they are slavery provisions. But these are irrelevant historical considerations, according to Spooner. The framers merely drafted the Constitution; they did not approve or authorize it. That was done (in theory) by “the people,” who elected delegates to state ratifying conventions.

Constitutions authorized by “the people” are a type of social contract in which citizens agree with other citizens to establish a form of government and abide by its decisions. We must assume that American citizens who voted for the U.S. Constitution understood what they were voting for, that they understood the meanings of the words that comprise the document. Yet we cannot travel back in time to interview voters about their subjective beliefs. The true meaning of the Constitution lies in the intent of the people who approved it (not in the intent of the framers), and there is only one reasonable way to discern that intent, viz., by interpreting its language according to the obvious meaning of words. The procedure will enable us to understand the Constitution as its early supporters understood it.

With this as his framework. Spooner formulated a number of rules of legal interpretation, many of which were based on the common law of England; and he concluded that, when we apply the correct legal reasoning to the Constitution, we cannot conclude that it is proslavery. That fact that previous judges viewed the Constitution as proslavery is irrelevant; they were either wrong or, in many cases, corrupt. Spooner had a low opinion of the moral character of most judges. This was because judges who believed in a proslavery Constitution nevertheless swore to apply its provisions, including the slavery provisions, to particular cases. This made them complicit in the crime of slavery, whatever their personal opinion of the morality of slavery may have been. Spooner believed that this is something a truly moral person would never do. The conventional view of the judicial system, according to which judges should rule impartially, following the law while putting their personal opinions aside, was anathema to Spooner. This would mean that judges should enforce the most monstrous human laws imaginable, instead of following the clear precepts of natural law. This position incurred the wrath of Wendell Phillips and other critics of Spooner, who maintained that his position on judges would make the rule of law impossible. If every judge should decide cases based on his own personal views rather than on the law, a stable legal system would be impossible. Spooner was therefore a true “no government” man—a charge that was typically leveled against the Garrisonians. Spooner was in fact an anarchist who rejected the sovereignty of law legislated by the state.

This charge was essentially correct. As I explained in previous essays, Spooner believed that the term “law,” strictly construed, should apply only to natural laws, as spelled out in a theory of natural rights. These principles flow from the nature of human beings and the requirements of social interaction; they do not depend in any way on human will or decrees. To the extent that “law” is given a broader meaning so as to include human legislation, then these “positive laws” will fall into one of three categories: Some will merely restate the principles of natural law in an explicit form; some will specify the procedures needed to put natural laws into effect; and some will contradict natural laws by authorizing the violation of individual rights. Laws in the latter category carry no moral obligation. They are backed solely by force and the threat of punishment. Morally speaking, they are no better than orders issued by a gang of thugs.