Smith discusses some early justifications of slavery and how they repudiated natural rights.

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.

According to historian Larry E. Tise, “Even though natural rights theory posed the first major challenge to proslavery thought in America, advocates of slavery were not left defenseless.”

The period between the colonials’ outspoken discontent with Great Britain and the rise of abolitionism in the 1830s witnessed an outpouring of antislavery and libertarian dogma that stimulated the promulgation of an equal amount of proslavery literature. In Virginia, Pennsylvania, Massachusetts, and England, proslavery writers countered the tide of antislavery propaganda and Revolutionary rhetoric by attempting to come to grips with natural rights theory. Each found his own appropriate solution to the dilemma and in the process provided a basis for proslavery ideology in the nineteenth century. (Proslavery: A History of the Defense of Slavery in America, 1701–1840, University of Georgia Press, 1987, p. 24.)

Some historians have claimed that positive defenses of slavery were virtually nonexistent until the rise of abolitionism during the 1830s. Until then defenders of the “peculiar institution” tended to be defensive, even apologetic, explaining that although slavery is evil, America was stuck with the institution until it could be phased out gradually. Even if slavery were left legally unhampered, it would eventually die a natural death. (Economic inefficiency was the most common justification for this prediction.) To abolish slavery quickly would cause insurmountable social and economic problems, as free, uneducated blacks found themselves unable to assimilate with the white population. One solution, of course, was to ship liberated slaves (and even free blacks) to Africa where they would be better off. These colonization schemes invariably smacked of paternalism. Even though many slaves were born in America and knew nothing of Africa, much less how to survive in a wilderness, they would supposedly be better off living in that continent, even if they didn’t want to go.

Historian Larry E. Tise challenged this common belief about proslavery arguments. He demonstrated that arguments to the effect that slavery was a “positive good” arose before the rise of abolitionism during the 1830s. They did not spring up suddenly in response to the unrelenting attacks of abolitionists. And these early proslavery arguments, like their later manifestations, typically targeted natural rights as the theory that had to be undercut before a defense of slavery could be mounted.

Some major defenses of slavery were published in America between 1772 and 1775. Not all of these were based on racist beliefs, as one might expect. Consider The African Trade for Negro Slaves, Shown to be Consistent with Principles of Humanity, and with the Laws of Revealed Religion, published in 1772 by Thomas Thompson. As an Anglican missionary for the Society for the Propagation of the Gospel in Foreign Parts (SPG), he drew on his time in Africa to point out that Africans were already enslaved before they were sold to Americans, so they might have ended up in far worse circumstances. Thompson denied that Africans were mentally inferior to whites or that they were innately barbaric or savage. His defense of slavery was based on the nature of civil society. The doctrine of equal rights and freedom is a fiction. “Absolute freedom is incompatible with civil establishments.” All civil societies have, and must have, gradations in freedom and privileges. Some people will always have more freedom than others, and slaves simply fall on the low end of this hierarchy. Hence slavery is part of a social system “designed and enacted for the public weal.”

In 1773, Richard Nisbet—a West Indian slaveowner who had moved to Philadelphia—published Slavery Not Forbidden by Scripture. Nisbet attempted to rebut accounts of the horrors and inhumanity of slavery, calling those stories so implausible as to be “refuted by every school boy.” Nisbet then advanced an argument that would become exceedingly popular among nineteenth‐​century defenders of slavery: Slaves were actually better off than many free laborers, especially in Europe.

[The West Indian slave] enjoys the singular advantage, over his brother in freedom of being attended with care during sickness, and of having the same provision in old age, as in the days of his youth. Instead of being oppressed to feed a large family, like the labourer in Europe, the more children he has, the richer he becomes; for the moment a child is born, the parents receive the same quantity of food for its support, as if it were a grown person; and in the case of their own death, if they have any reflection, they will quit the world with the certainty, of their children being brought up with the same care they formerly experienced themselves. They may be pronounced happier than the common people of many of the arbitrary governments in Europe, and even several, of the peasants in Scotland and Ireland.

In 1773, an anonymous writer published Personal Slavery Established, a critique of Benjamin Rush and other members of Philadelphia’s growing antislavery movement. The slave trade was not “manstealing,” according to this writer. On the contrary, it was a positive good. Slavery liberated blacks from a savage life in their native lands and transported them to a civilized Christian country, “compelling them to the enjoyment of a more refined state of happiness.” The slave trade should therefore be viewed as a “generous disinterested exertion of benevolence and philanthropy.”

In A Forensic Dispute on the Legality of Enslaving the Africans (1773), another defender of slavery, Theodore Parsons (a senior at Harvard), continued the attack on natural rights that had become common among his ideological colleagues. He argued that the “principle of natural equality, which is so zealously contended for by the advocates of universal Liberty” is inconsistent with the nature of society. No society can permit every person to enjoy perfect liberty; on the contrary, the nature of society “requires various degrees of authority and subordination; and while the universal rule of right, the happiness of the whole, allows greater degrees of Liberty to some, the same immutable law suffers to be suffered only in less degrees by others.” Africans should enjoy only the amount of freedom that “concomitant circumstances being considered tends to happiness on the whole.

According to Parsons, if we concede the right of a father to direct the behavior of his children, then we must also concede the right of a slaveholder to direct the behavior of his slaves. Given the racial inferiority of blacks, slaves are to their masters what children are to their fathers. Both groups ultimately benefit from guidance by their superiors. Moreover, Africans come from a backward, uncivilized culture where they are subject “to the tyrannizing power of lust and passion,” so their “removal to America is to be esteemed a favor.” To transport Africans from “the state of brutality, wretchedness, and misery…to this land of light, humanity, and christian knowledge, is to them so great a blessing.”

Although militant defenses of slavery—those that defended slavery as a positive good—became less frequent after 1775, owing to the popularity of natural‐​rights theory at the outset of the Revolution, they were revived during the 1830s, as defenders of slavery took a more aggressive stand against the abolitionist movement. Quoting Larry E. Tise (Proslavery, pp. 31–32) once again:

The liberating influence of the ideology of the American Revolution was powerful in the extreme, hushing in its wake any need of viewing society from the proslavery perspective of a Saffin, Nisbet, or Parsons. Americans were committed to building a nation on the foundation of freedom they had created in their late War for Independence. Whereas talk of liberty and equality had been alarming to some before the war, in the exultation of victory nothing seemed more appropriate than the institutionalization of freedom in American society. And most Americans came to believe that slavery was one of the imperfections that had to be gradually extinguished….In an era captivated by a countervailing system of thought [to proslavery arguments], a proslavery perspective had no place.

Thus, contrary to the claims of some modern leftist historians, the doctrine of natural rights did not exclude blacks (or women). On the contrary, when Lockeans spoke of “man’s rights,” they were usually clear that they meant the rights of every person (the human species), regardless of race or gender. (Of course, whether they applied this universal principle consistently is another matter.) Virtually every militant defender of slavery understood that the Lockean version of natural rights must be rejected and put aside before a positive defense of slavery can get underway. This is why an attack on natural rights runs throughout the proslavery literature.

This also explains, at least in part, why abolitionists (and antislavery types generally) made self‐​ownership, which they regarded as the fundamental natural right, the bedrock of their crusade for emancipation. As illustrated by some of quotations above, proslavery writers typically appealed to some version of utilitarianism, maintaining that slavery serves a greater social good—that it tends to promote the “public weal” (Thompson) and “happiness on the whole,” (Parsons), And lest they concede that the freedom of some should be sacrificed for the welfare of others, many of the defenders of slavery maintained that even slaves are better off and happier than then would have been in Africa. As often happens in utilitarian calculations, the calculator ended up with precisely the conclusion that he wished to justify. Indeed, according to some of their accounts, slavery provided blacks with a nearly ideal welfare state—security from cradle to grave and free medical care. Southern slaves were supposedly better off than free laborers in the North, yet I don’t know of a single free laborer who voluntarily signed up to be a slave.

I have provided this brief overview of proslavery arguments as a prelude to my discussion of Lysander Spooner’s arguments for the unconstitutionality of slavery. Spooner did more than ground his opposition to slavery on natural law and natural rights. As we shall see, Spooner also integrated these doctrines into his theory of constitutional interpretation.