Spooner, Lysander (1808-1881)
Lysander Spooner was a political and legal theorist, a writer, and an abolitionist. Born in rural New England, he was raised as one of nine children and left home to live in Worcester, Massachusetts, where, in 1833, he began studying law. He served his apprenticeship in the offices of John Davis, a prominent Massachusetts politician who shortly thereafter served as governor and then senator. In Davis’s absence, Spooner also studied with Charles Allen, a state senator who eventually served as Chief Justice of the Massachusetts Supreme Court.
At the time, the rules governing Massachusetts courts required a student to study in a lawyer’s office before admission to the bar. College graduates were required to study for 3 years, whereas nongraduates were required to do so for 5 years. Spooner’s first act as a lawyer was to challenge what he thought was a rule that discriminated against the poor. After just 3 years of study, with encouragement from both Davis and Allen (who had graduated from Yale and Harvard, respectively), Spooner set up his practice in Worcester in open defiance of the rules. In 1835, Spooner published a petition “To the Members of the Legislature of Massachusetts” in the local newspaper and sent copies of it to each member of the state legislature. He argued that “no one has yet ever dared advocate, in direct terms, so monstrous a principle as that the rich ought to be protected by law from the competition of the poor.” In 1836, the legislature abolished the restriction.
Spooner’s writing career began at about the same time as his legal one, with essays criticizing Christianity from a deistic perspective. Possibly in part for this reason, his law practice did not flourish. In 1836, he left Massachusetts to make his fortune in “the West”—in this case, Ohio. While there, Spooner vied with other speculators to buy land where future cities would spring up. He purchased a tract along the Maumee River for a town called Gilead, which today is named Grand Rapids, Ohio. But Gilead lost out to better-connected rivals and a general real estate collapse, so that by 1840, Spooner returned to his father’s farm.
After writing about how the banking system should be reformed to avoid the kind of speculative collapse he had experienced, Spooner struck out in an entirely new direction. In 1844, he founded the American Letter Mail Company to contest the U.S. Post Office’s monopoly on the delivery of first class mail. Postal rates in that period were notoriously high, and several companies arose to challenge the government’s monopoly. As he had when he confronted restrictions on entering the Massachusetts bar, Spooner vigorously defended his action with a lengthy pamphlet titled “The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails” (1844).
Unfortunately, this time he was up against a more intransigent foe. Although Spooner’s mail company was successful commercially, legal challenges by the government soon exhausted his financial resources, and by July 1844, his business was all but defunct without his ever having the opportunity to fully litigate his constitutional claims.
It was after this dispiriting experience that Spooner turned his attention to the issue of slavery. With financial assistance from wealthy New York philanthropist and abolitionist Gerrit Smith, Spooner produced the first volume of his book The Unconstitutionality of Slavery in 1845. In this fascinating work, Spooner argued that, because the Constitution did not receive the express consent of those on whom it was imposed, it can only be based on presumed or “theoretical” consent. Because no one can be presumed to have consented to a violation of their natural rights, the Constitution cannot legitimately be interpreted as having this effect. From this conclusion he derived the following interpretive principle:
1st, that no intention, in violation of natural justice and natural right … can be ascribed to the constitution, unless that intention be expressed in terms that are legally competent to express such an intention; and 2d, that no terms, except those that are plenary, express, explicit, distinct, unequivocal, and to which no other meaning can be given, are legally competent to authorize or sanction anything contrary to natural right.
In short, “all language must be construed ‘strictly’ in favor of natural right.” By this standard, he contended, the oblique references in the Constitution to slavery were not explicit enough to sanction this practice if there existed an innocent meaning to these passages at the time of the founding. The bulk of his essay is devoted to a search, sometimes strained but always clever and interesting, for that innocent original meaning.
To be sure, Spooner’s arguments drew criticism, especially from abolitionist Wendell Phillips, to which in 1847 he responded in a second, entirely new volume of the book that was appended to the first. The entire work runs nearly 300 pages. Together they persuaded Frederick Douglass to abandon his Garrisonian opposition to the Constitution as “a covenant with death and an agreement with hell” and embrace Spooner’s abolitionist reading.
The passion of Spooner’s opposition to slavery is evidenced by his conspiratorial efforts to free the captured John Brown. He had met Brown shortly before Brown’s ill-fated raid on Harper’s Ferry, and afterwards he attempted to implement a plan in which radical abolitionists would kidnap the governor of Virginia and hold him hostage for Brown’s release. The plan was never acted on, although Spooner’s associates had gone as far as to locate a boat and crew.
Spooner also provided legal arguments to aid abolitionists charged with violating the Fugitive Slave Act, and his work on behalf of such defendants led him in 1854 to publish another book, Trial by Jury, in which he defended as essential to a free society the jury’s role as triers of both fact and law—the position sometimes referred to as jury nullification.
Despite its having resulted in the abolition of slavery, the Civil War and its forcible suppression of the South seems to have greatly radicalized Spooner. Whereas his earlier works on the unconstitutionality of the postal monopoly and of slavery implicitly assumed the legitimacy of the Constitution, or appeared to, after the war Spooner explicitly rejected the Constitution in what is today probably regarded as his best and most libertarian essay, No Treason: The Constitution of No Authority (1870). He began this monograph with these words:
The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago… . Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead… . And the Constitution, so far as it was their contract, died with them.
Until his death in 1887 at the age of 79, Spooner eked out an impoverished existence as a writer, activist, and legal theorist. His writings were extensive, including a lengthy, although never completed, book defending intellectual property and an essay titled “Vices Are Not Crimes.” His reputation as an individualist anarchist and his opposition to all forms of oppression and injustice have made him a hero to all libertarians. At a memorial service in his honor, the following resolution was passed:
Resolved: That while he fought this good fight and kept the faith, he did not finish his course, for his goal was in the eternities; that, starting in his youth in pursuit of truth, he kept it up through a vigorous manhood, undeterred by poverty, neglect, or scorn, and in his later life relaxed his energies not one jot; that his mental vigor seemed to grow as his physical powers declined; that although, counting his age by years, he was an octogenarian, we chiefly mourn his death, not as that of an old man who has completed his task, but as that of the youngest man among us,—youngest because, after all that he had done, he still had so much service that the best we can do in his memory is to take up his work where he was forced to drop it, carry on with all that we can summon of his energy and indomitable will, and as old age creeps upon us, not lay the harness off, but following his example and Emerson’s advice, “obey the voice at eve obeyed at prime.”
He is buried in Forest Hill Cemetery in Boston, where a monument to him was erected by his admirers in 1999.
Barnett, Randy E. “Was Slavery Unconstitutional Before the Thirteenth Amendment?: Lysander Spooner’s Theory of Interpretation.” Pacific Law Journal 28 (1997): 997–1014.
Cover, Robert M. “Formal Assumptions of the Antislavery Forces.” Justice Accused: Antislavery and the Judicial Process. New Haven, CT, and London: Yale University Press, 1975. 149.
Martin, James J. “Lysander Spooner: Dissident among Dissidents.” Men against the State. Colorado Springs, CO: Ralph Myles Publisher, 1970. 167–201.
Phillips, Wendell. Review of Lysander Spooner’s “Essay on the Unconstitutionality of Slavery.” Boston: Andrews, 1847 .
Shively, Charles, ed. The Collected Works of Lysander Spooner. 6 vols. Weston, MA: M & S Press, 1971.
Smith, George H., ed. The Lysander Spooner Reader. San Francisco: Fox & Wilkes, 1992.
Weicek, William M. “Radical Constitutional Antislavery: The Imagined Past, the Remembered Future.” The Sources of Antislavery: Constitutionalism in America, 1760–1848. Ithaca, NY: Cornell University Press, 1977. 249–275.
Originally published .