This week Matt Zwolinski joins us to talk about the fascinating life of one of the most radical libertarians of the nineteenth century: the lawyer, abolitionist, political philosopher, and entrepreneur Lysander Spooner, who believed adamantly that we have no obligation to do what the government tells us to do just because the government is telling us to do something.
Near the end of his life Spooner wrote a letter to then‐president Grover Cleveland. We discuss this letter and it’s implications on Spooner’s political philosophy, and the similarities between Lysander Spooner’s principles of natural law and contemporary philosopher Michael Huemer’s ideas on ethical intuitionism.
Aaron Ross Powell: Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I’m Aaron Powell.
Trevor Burrus: I’m Trevor Burrus.
Aaron Ross Powell: And today we welcome back to the podcast Matt Zwolinski. He’s Associate Professor of Philosophy at the University of San Diego, a co‐director of USD’s Institute for Law and Philosophy, and the founder of the Bleeding Heart Libertarians blog.
Today, we’re going to be talking about an essay by Lysander Spooner. It’s a long essay called A Letter to Grover Cleveland on – here, I will read the full title. It is A Letter to Grover Cleveland: On His False Inaugural Address, the Usurpations and Crimes of Lawmakers and Judges, and the Consequent Poverty, Ignorance, and Servitude of the People.
Aaron Ross Powell: It was written in 1886. So I mean let me just start with the very beginning of this, just the opening passage to give the tone of the essay before we move into discussing it, because Spooner has a style all his own. So this is – as the title says, he’s writing this letter to President Grover Cleveland.
So he begins by saying, “Your inaugural address is probably as honest, sensible, and consistent a one as that of any president within the last fifty years, or, perhaps, as any since the foundation of the government. If, therefore, it is false, absurd, self‐contradictory, and ridiculous, it is not (as I think) because you are personally less honest, sensible, or consistent than your predecessors, but because the government itself –according to your own description of it, and according to the practical administration of it for nearly a hundred years – is an utterly and palpably false, absurd, and criminal one. Such praises as you bestow upon it are, therefore, necessarily false, absurd, and ridiculous.” Then it goes on for 130 pages like that.
Trevor Burrus: It’s pretty much – yeah, it goes on. I read it. I was telling this to Matt. I read it in Keith Olbermann voice. That’s what I decided. That’s like, “And now with the countdown.”
Aaron Ross Powell: So Matt, who was this guy?
Matt Zwolinski: So Lysander Spooner was – he was a cranky old man by the time he was writing this. So this was – this was actualy written in 1885 and published in 1886. It was his last published work. He died in 1887.
Lysander Spooner was a – was an American 19th century lawyer, abolitionist and probably one of the most important 19th century libertarian theorists. A lot of his work was – especially early in his career was heavily focused on the law, given his background. So probably his most famous work and one of his earliest works was an 1845 essay called The Unconstitutionality of Slavery where Spooner kind of brought together his libertarianism, his belief in natural law and his concern for the constitution to make a concerted argument that slavery that existed in the United States was in fact unconstitutional.
That turned out to be a profoundly influential argument among a certain wing of the abolitionist movement and even those abolitionists who disagreed with them. People like Garrison who thought that slavery was constitutional and therefore so much the worse for the constitution had to engage with Spooner on this. So it was a major, major work.
He authored a number of other lesser known pieces throughout his life to – he had An Essay on Trial by Jury where he makes the case for what we would now describe as “jury nullification,” which had some influence.
He wrote a long essay on intellectual property. So Spooner is one of the best known I guess libertarian proponents of strong, very strong rights of intellectual property. He wrote a series of essays called No Treason which are very close in theme to the letter that we’re going to be discussing today.
Then one of my favorite things by Lysander Spooner actually is this 1875 essay that he wrote called Vices Are Not Crimes, which he published anonymously in this – it was a collection of essays on prohibition in the United States. Obviously not the 1920s prohibition but the earlier prohibition and it’s a broadly Millian argument, right? The idea is, look, there are certain things that people do that are bad, that are worthy of moral – kind of moral condemnation. But not everything that other people do that we disapprove of even with good reason ought to count as criminal and therefore be subject to kind of coercive prohibition of the law.
So it’s like Mill’s famous essay on liberty but it’s a much more hardcore kind of argument and much more explicitly grounded on the idea of natural rights that I think many libertarians will find appealing. That essay is kind of interesting because it sort of disappeared off the face of the earth for about 100 years.
As I said, Spooner published it anonymously at first and it wasn’t until Benjamin Tucker wrote his obituary at Spooner in Liberty magazine that it was discovered publicly that Spooner was the author and then even after that. It just sort of disappeared and people forgot about it and it wasn’t rediscovered until 1977.
So it’s not in the collected works, so the standard collected works of Spooner. But it’s pretty easy to come by in the web.
Aaron Ross Powell: I believe it is in Individualism: A Reader published by Libertarianism.org.
Matt Zwolinski: Of course it is. That’s an outstanding book.
Trevor Burrus: Do you know if he was able to support himself through his publishing or did he work as a lawyer most of the time?
Matt Zwolinski: He worked briefly as a lawyer. It didn’t work out too well for him.
Trevor Burrus: I feel like he would feel immoral practicing law.
Matt Zwolinski: Yeah, I mean he had a difficult relationship with the law and as I was telling Aaron earlier, he’s not exactly a people person.
Aaron Ross Powell: Yeah, you submit a brief written like this and you’re not going to get very far.
Matt Zwolinski: I could see him not getting on very well with clients. But he had a number of posts. He worked as a lawyer and he worked as a bank clerk for a while. He was poor throughout his life. He always had financial difficulties but as his life went on, he had more and more occasions to support himself by his writing.
Early on, I mean one of his earliest and most famous examples to support himself financially was the company he founded in 1844 called The American Letter Mail Company which was his own private post office set up to compete with the US government’s post office in violation of the law. This was legally prohibited and Spooner knew it was legally prohibited.
He wasn’t the only one who was doing this kind of thing. There were a lot of people who were sort of engaged in the private delivery of mail because postage was really, really expensive at the time. So people were resorting to things like sending bundles of newspapers to each other and sort of encoding their messages in the newspapers by circling and underlying various letters because it turns out it’s cheaper to mail like a big stack of newspapers to somebody than it is to mail a single letter.
But what was unique about Spooner was the fact that he did this openly and not just in the sense that he didn’t make any efforts to hide it but he actually went out of his way to publicize it. So he wrote this essay called The Unconstitutionality of the Laws of Congress Prohibiting Private Mails which set out his argument for why in fact – it ought not be regarded unconstitutional to set up your own private post office. It was a nice, simple, elegant argument.
The idea was look, if you look in the constitution, it clearly gives the US government the power to run a post office. But it doesn’t say anything about prohibiting other people from running their own post office, right? And the delegation of the power to the government is not the same thing as delegation of power to prohibit other people from engaging in that same activity.
So he was begging for a fight. He sent a letter, a copy of this pamphlet to the post master general. He said, “See how far this goes for you,” and they never did. They arrested some of his employees and sued him and every single letter that was sent through his company was a separate offense, so they were really mounting up the legal bills for him and by the time, it looked like his case might have some legs and actually go somewhere. The government basically conceded by lowering the postage rates and sort of putting them effectively out of business in that way.
So this earned Spooner the title of “father of the three‐cent stamp” because it was the idea. It’s his credit that postage rates went as low as they did.
Trevor Burrus: So the letter to Grover Cleveland was not the first time he was trying to be a bur in a public official’s career?
Matt Zwolinski: Not the first time, not the second time, not the third time. Spooner made something of a habit of this. He started his legal career actually in agitating in this way. So Massachusetts had a law, which said that if you’re a college graduate, then you had to practice – you had to work with a lawyer for three years before you could set up your own practice, whereas if you weren’t a college graduate, then you had to work with a lawyer for five years. So there’s sort of extra burden on non‐college graduated.
Spooner protested this saying that this was an [0:10:00] illegitimate restriction and basically kind of anti‐poor, right? Because the college – and college education in those days was kind of a luxury. It wasn’t like vocational training. It was something you did if you could sort of afford to spend a few years of your life not making the money.
So most people from poor and working class backgrounds didn’t go to college and Spooner thought this was sort of legalized discrimination against the poor, which is kind of an interesting theme throughout his life. I mean he’s a fierce critic of the state, as we will see in this essay.
He thinks that the state routinely oversteps the very narrow bounds of authority that it has and routinely does so in a way that supports the interest of the strong and powerful at the expense of the poor and oppressed. So there’s a real kind of left libertarian angle to Spooner’s work that runs I think just throughout his career from his earliest writings all the way up to the last.
Aaron Ross Powell: I think you’ve said – perhaps on Facebook, you’ve expressed your enthusiasm for this particular essay.
Matt Zwolinski: I love this essay.
Aaron Ross Powell: So before we get into this essay, I’m curious what makes this essay better in your mind or more fun than say his more famous, the more often anthologized ones. I’m thinking of – I mean his – the No Treason essay. The Constitution of No Authority is probably the most famous. What sets this one apart from those in your mind?
Matt Zwolinski: So I think this is – it’s a more mature work in some ways. Spooner’s thoughts evolved quite a bit throughout his career. Again, he was born in 1808, died in 1887. No Treason was written I believe 1867 to 1870. So this was at least 15 years later. So he had undergone some changes through them. He thought a bit more through things and some of that is reflected in the text.
It’s a more holistic text as well. It ties together a number of disparate themes that run throughout Spooner’s earlier work and that aren’t all in No Treason. So you get more of the economic stuff in the letter to Grover Cleveland than you would in No Treason, which is nice because again Spooner wasn’t just a legal theorist. He wasn’t just a philosopher. He had really unique and interesting ideas in a wide range of disciplines.
Then it’s just fun. I mean it’s an angry, cranky, old man. You can sort of imagine him like a – listening on the radio to this address. Like I imagine sort of huddled in the corner, just sort of like – his face turning red as he hears this and then just kind of firing off this 130‐age letter in the course of a couple of hours. He has got that tone to it and there’s just some gem quotes in here, whether you agree with the philosophical argument or not.
I mean they’re just – they’re beautifully expressed in a way that they probably wouldn’t have been if he had taken more time to be kind of thoughtful and careful about them.
Trevor Burrus: Do you have any idea why Grover Cleveland or anything about – did he have – did Grover Cleveland disappoint him or something? Did he have high hopes for Grover Cleveland or is there any reason that Grover Cleveland was the one to receive the blunt of his ire?
Matt Zwolinski: That’s a good question. I don’t know. I mean from a libertarian perspective, it doesn’t seem like there’s anything more to dislike about Cleveland than a lot of the other presidents who were alive during Spooner’s life.
Aaron Ross Powell: And Spooner says that throughout. I mean he seems to say – he says in several points things that you’re not particularly worse than anyone else. You seem to be saying the right things, but you’re just either wrong or lying. He doesn’t seem to have it in particularly for this guy.
Matt Zwolinski: Yeah, I haven’t read anywhere any account of what led him to write this particular essay at this particular time, to this particular president. I mean maybe it was just he wanted to write something and saw this as a kind of news hook for his essay. But I would be interested in finding out if there was more to it than that. I can only speculate otherwise.
Aaron Ross Powell: Well then, let’s turn to it. I mean he – so we will begin – the essay is broken into a whole bunch of sections and a number of them seemed to repeat each other, but that’s one of Spooner’s styles. He’s rather repetitive at times. But we will start at the beginning.
I mean the first argument that he raises as he’s talking about Grover Cleveland saying that it’s the role of government to create and enforce these laws. He begins by saying that he’s simply wrong about that, right? That law exists independently of government, that government has no say one way or another over what the law is.
Matt Zwolinski: That’s right, that’s right. So right away in section one of the essay, you basically get Spooner arguing for a kind of anarchism. He’s not softly starting off with his argument.
So Spooner was a firm believer in natural law and you saw this earlier in his writings. It was sort of implicit in The Unconstitutionality of Slavery although again that was mostly a legal argument, right? He wasn’t saying, “Would you get rid of slavery because slavery is unjust or a violation of the natural rights of man?”
It was – he believed that but the argument that he was making there was it’s unconstitutional. Later in life, he becomes – he seems to become more radical. Ideas of natural law play a greater role in his arguments than arguments about what the constitution does or does not say.
So here in this letter, he’s making an argument for what philosophers would describe as a kind of philosophical anarchism, which is essentially a denial of the authority of the state to – in other words, a denial of the claim that the state has the right to tell you how to behave or how not to behave and that you as a citizen therefore have a corresponding obligation to obey the state’s commands just because the state commanded them.
Like many of Spooner’s arguments, it’s a fairly simple and elegant argument. The idea is look, if the government comes around and passes a law, then one of two things must be the case. Either that law is merely restating the natural law, right? So maybe the natural law says that it’s wrong to go around killing people.
So the government then comes around and says, “Hey, don’t go around killing people.” Well, OK, that’s true. But like you haven’t added anything to my obligations as a citizen by saying that. I already have an obligation not to kill people by virtue of the natural law. So in that case, the law is simply superfluous.
On the other hand, perhaps the law is not in accordance with natural law but in violation of natural law. But if that’s the case, then it’s criminal, he says. It’s not anything that we have any obligation to obey. In fact we have an obligation to disregard it or any sort of echoes of Augustine here. Unjust law is no law at all. It’s an act of usurpation.
So either the law is superfluous or it’s criminal but in neither case do we have any special obligation to do what the government tells us to do just because the government tells us to do it.
Trevor Burrus: That’s the telling little phrase in – I think it’s repeated a bunch of times in the first section which is “lawmakers, as they call themselves”. Every time he says “lawmakers,” he says, “as they call themselves”.
Matt Zwolinski: That’s right.
Trevor Burrus: Which is powerful. He probably was telling you what you to do. But is that a false dichotomy do you think? Was Spooner’s dichotomy there, is that – are there laws that are neither against justice or for justice and they just sort of describe would – left side of the road or right side of the road or even some basic properly laws like how high above your property you own or things like this. Would these be neither here – in neither of the categories that Spooner describes?
Matt Zwolinski: Right. So that’s – I think it’s exactly right. It’s more complicated than Spooner presents it here. Not I think more complicated than he realizes. I think he knows better but he’s exercising some rhetorical liberties here. But it’s really more complicated than he presents it, right? So it’s not just that either laws will restate natural law or they conflict with natural law. They might sort of add something to natural law without merely restating it or contradicting it.
So for instance, you might have a vision of natural law which says that part of the obligation of citizens is to find conventions to live – amongst each other in ways that facilitate peaceful coexistence, right? But there could be a lot of different conventions upon which one could settle [0:20:00] that would serve that goal. So the important thing then is just to sort of pick one of them and get everyone on the same boat, like driving on the right hand side of the road.
It doesn’t matter whether you drive on the right hand side of the road or whether you drive on the left hand side of the road. Either one of those allows people to drive down the street, without getting into head‐on collisions, but it matters a lot that everybody is doing the same thing.
So you might think there’s a role for government there in setting that convention and in a way kind of giving a certain sort of specificity to the natural law, right? This is something – I mean this is something that’s fairly commonplace in the natural law tradition. You see this in Aquinas, going back as far as Aquinas, right? He says that you’ve got – the natural law could be stated at a variety of different levels of specificity, right?
At the most general, most abstract, the natural law simply says do good and avoid evil, which is true.
Trevor Burrus: Very un‐determinative though.
Matt Zwolinski: That seems like a good rule, but it doesn’t really do much to settle questions about resolving the kinds of conflicts we face with each other in society. So you can go further than that through abstract reasoning alone, right? By reflecting on scripture if you’re Aquinas or just using your reason and thinking about the human condition. But even that kind of abstract reasoning will only take you so far.
At some point, you need to sort of settle up on conventions that are going to pick out particular ways of implementing these abstract rules and that seems like on the natural law approach a perfectly legitimate rule for government.
Trevor Burrus: If it is somewhat reductivist though because I was thinking as I was reading this, I was thinking – he says things unapologetically. It’s as clear as day to him things that are not clear to anyone – most other people and if I was to say, “Oh, you want to know about libertarianism,” and I said, “You should read this,” and they would just read it and they say, “This guy is a nut job who reduces everything down to very basic categories.” If that is – if the reduction part is somewhat true, what is the value we find in the way that he does forcibly explain even if the reductivist categories – where is the value of the reduction there?
Matt Zwolinski: Well, so, he has got – I mean I think there’s still a basic point to that argument, right? Which holds even once we notice that things are more complicated than he presents them, which is that – most of us believe that there are moral standards independent of government, right? Most of us think that it’s not wrong to kill people just because the government says it’s wrong to kill people.
So if you take those natural laws seriously, then what Spooner does here is he shows us that those natural laws put a tremendous – put a very strong constraint on the legitimate scope of governmental activities. Not maybe – it maybe goes too far to say that there’s nothing at all the government can do. But it certainly narrows the field, right? And rules certain things out if they are in conflict with these basic moral duties.
What I like about Spooner really throughout this essay is that he makes very vivid what seems to me to be a key libertarian idea which is that the moral rules that apply to us as individuals apply to governments too. You don’t get any special magic exemption from the rules of morality just because you and a bunch of your buddies get together and call yourself a government.
You’re still human beings and you’re still bound to treat the other human beings with whom you live in the same ways that you would be bound if you were just a private citizen. So if it’s wrong for me as a citizen to take your stuff without your consent and spend it on what I think is a really good cause, then it’s at least prima fascia wrong for the government to do that too.
If you want to say that there’s something special about the government that makes it OK, then there’s a very heavy burden of proof on you to explain why that should be the case. So that’s a theme that runs throughout Spooner’s writings which I think is really, really super important for understanding the way libertarians see the world.
I see a lot of parallels actually between the kind of moral argument Spooner makes in his essay and the kind of arguments that Mike Huemer makes in his recent book The Problem of Political Authority. In both cases, you have somebody who’s trying to argue for very extreme conclusions, right? Huemer like Spooner is an anarchist and – but they try to get there by way of what they take to be fairly commonsensical moral beliefs. They don’t start off with asking you to accept any crazy stuff about – you know, God spoke to me last night and – or, you know, accept this absolute prohibition on such [Indiscernible].
They’re just saying, “Look, you think it’s wrong to steal from people? OK. Why does [Indiscernible] right?” You think it’s wrong for me to like order you to kill somebody? Why do we think war is OK then?
Aaron Ross Powell: So we had Huemer on the podcast quite a way back, I believe, and …
Trevor Burrus: About a year ago I think.
Aaron Ross Powell: But his arguments are coming from – he’s a moral intuitionist. So we have these intuitions about morality and we should – I mean I’m totally …
Aaron Ross Powell: … as somewhat true. They’re true if our intuitions are good enough. But Spooner doesn’t seem to argue that way. I mean he – in section two, he basically says like look, these natural rights – we have this natural law as a science. This isn’t something – we don’t have these free‐floating intuitions. There is a science of this stuff and he then challenges Grover Cleveland saying, “If there is no science of justice, how do you know that there is such principle as justice?” So I guess the question is, “How does he argue for that science of justice?” because that’s a little different from simply pointing to common sense moral beliefs. How does he ground this science?
Matt Zwolinski: Yeah. He doesn’t do much to ground it. It’s mostly assertion on his part. Spooner has an earlier essay called Natural Law, which is his most sustained treatment of these – the more kind of meta‐ethical questions about the foundations of morality. But even there, it’s a really brief essay, unfinished I believe. It doesn’t provide what I think contemporary philosophers would regard as anything close to an adequate answer to that question.
My own reading of Spooner is that we should take his claims about the scientific nature of natural law with a grain of salt. It’s really – I don’t think it plays a strong role in the argument. I think it’s – it sounds like Spooner and Huemer are approaching these questions from two very different frameworks, right? Huemer is this wishy‐washy intuitionist and Spooner is this rigid natural lawyer.
But in fact I think they’re much more similar than they appear, I think. If you look into the kinds of reasons Spooner gives for believing that certain principles are true principles of natural law, it looks an awful lot like what Huemer is doing when he calls it intuitionism. In both cases, they’re trying to appeal to widely‐shared moral beliefs.
In fact, that’s kind of the argument that Spooner gives for claiming that certain principles are principles of natural law. It’s like look, everybody knows this, right? This is common sense.
This is a sort of common theme in natural law theory, which is that the natural law is not difficult to discern. We can figure out what it is. We don’t have to wait for God to tell us. We could just look around the world, think about it and not even think about it all that hard, and will arrive at these correct beliefs about what the natural law says.
Trevor Burrus: It struck me as interesting that in section three – in the first two sections, he tends to come out as full throttle anarchist as you possibly could be. In section three, he says, “Sir –” I got the Keith Olbermann thing.
“Sir, if any government is to be a rational, consistent, and honest one, it must evidently be based on some fundamental, immutable, eternal principle; such as every man may reasonably agree to, and such as every man may rightfully be compelled to abide by, and obey. And the whole power of the government must be limited to the maintenance of that single principle.”
So he then comes and says that the government does have this job, that it has to be maintaining justice. But doesn’t it need taxation and some sort of powers over people in order to do any job that he sort of disavows in the first two sections of the work?
Aaron Ross Powell: Or is – I mean was he a voluntarist?
Trevor Burrus: Is that government though?
Matt Zwolinski: Yeah. Well, these are excellent questions. Spooner never described himself as a voluntarist. I don’t believe he ever described himself as an anarchist either. The position that he [0:30:00] puts forward in this essay is – it clearly puts him in the realm of what we would – again, what we would now describe in philosophy as philosophical anarchism which is where you’re denying that the state has any kind of special authority.
But you can do that without denying that the state should exist, right? So philosophical anarchism is a kind of anarchism, but it’s different from say the kind of anarchism that you find expressed in the writings of someone like Murray Rothbard, right?
So Rothbard thinks quite explicitly that not only does the state lack legitimate authority in the sense that Spooner claims. So he’s a philosophical anarchist too but he goes further and says that the state is a criminal association that ought to be disbanded and replaced and Rothbard presents this with his very robust vision of what things would look like if we did away with the states.
We could provide for all our needs, all the needs that the state – the legitimate needs that the state provided for us, we could provide for ourselves through voluntary combination, through kind of free market system of defense.
Spooner never really gets into any of that stuff. Spooner never talks really about abolishing the states. There are hints in this essay about defense being provided by voluntary means. Kind of get together and you protect me, I protect you. But there’s no talk of like a market in defense.
There’s no real talk really of abolishing the state. It’s just – the idea seems to be that it’s OK for the state to exist as long as it conforms itself with the principles of natural law. But if it does that, it sort of isn’t going to really be like a state anymore because it’s only going to have the power to act as any other voluntary organization would, which means that if it’s going to raise revenue to protect your natural rights, then it has to do so with your consent and not this kind of airy‐fairy consent where it’s like we just assume that you consent because after all, you’re still living in the territory of the United States.
But no, actual, individual, explicit consent is necessary in order for taxation to be anything other than robbery. So it’s – yeah, the state can exist but it can exist just as a sort of private club.
Trevor Burrus: Yeah, I got that too. I got the individual consent. I was trying to find where he was going and I understand it’s more of a polemic than a – it’s a systematic building of a philosophy. So I think he’s maybe – has limited consent or allows for contractual and then there’s this part in section seven where he says, “If every man, woman, and child in the United States had openly signed, sealed, and delivered to you and your associates, a written document, purporting to invest you with all the legislative, judicial, and executive powers that you now exercise, they would not thereby have given you the slightest legitimate authority.”
He talks about being able to sell yourself into slavery and whether or not you can do that and what – but he is talking about the powers that the government currently has. He says no one could have. No organization of people could have it. I think it’s his point there.
Matt Zwolinski: Yeah, yeah. So Spooner is – it’s interesting because he has a number of different arguments all leading up to the same conclusion that the state lacks legitimate authority, right? So you got that first argument that the law is either superfluous or it’s criminal.
Then he backs that up with another argument, kind of historical argument, right? Against the social contract theorists, which say that, look, the state derives its just powers from the consent of government. The response to that – one response to that is, well, I never consented to anything, right? I never signed any social contract. I didn’t endorse the constitution.
So if the authority of the state is supposed to rest upon some actual act of consent and that actual act of consent never happened, then the state doesn’t have any authority.
Aaron Ross Powell: And he even knocks down. I mean one could say, well, if you vote, that’s an act of consent by the very act of participating in that. But he knocks that one down too and kind of calls out the absurdity of saying that if you’re one of [Indiscernible] 50 millions of people. He says if you’re one of these 50 million and you happened to vote for something, it’s absurd to think that you had a meaningful choice in the matter.
Matt Zwolinski: Yeah, which is – I mean it’s a great argument. I mean that’s I think a perfectly good argument against a certain kind of social contract theory. But then it traversed the argument that you brought up as – I think the third argument, which goes beyond the historical argument and says that look, even if contrary to face we had signed this social contract, it would be illegitimate and void because the rights that we are supposed to have given up in that social contract are in fact inalienable, which means we can’t through an act of will give those rights up. So it’s null and void and the transfer of authority never goes through.
Aaron Ross Powell: I mean he says – quoting him again in section seven, he says, “It is a natural impossibility for any man to make a binding contract, that shall invest others with any right whatever of arbitrary, irresponsible dominion over him.”
So yeah, we just can’t – and that’s – and I think one of the interesting things is he then spends a large chunk of the essay after that, showing how the state is irresponsible and arbitrary and how it’s not bound – it doesn’t even make a pretext being bound by the rules, that it’s written down for itself. And that most of the stuff that it then does is in now way, shape or form related to what it claims to exist for, which is protecting our rights and enhancing the good of the individuals and the public good.
Aaron Ross Powell: Yeah, that’s right, that’s right. The inalienability stuff is really interesting I think and in some ways a kind of underappreciated element in the libertarian intellectual tradition, especially by academic philosophers who are by and large familiar with libertarianism through the work of Robert Nozick, his Anarchy, State and Utopia, and in that book, Nozick comes out against the idea of inalienability and says that – you know, look if in a – in a free society, if people want to sell themselves into slavery, then there’s no reason why they shouldn’t be able to do that.
So it endorses the idea of slavery contracts which seems at first glance like – that ought to be what the libertarian position is, right? You have a right to something, whether it’s a right to – a property right in your car or a right in your own – like a right to your kidney or a right to free speech.
We think that most of those rights, the right to your car and the right to your kidney, we think ought to be transferable. If you want to give those rights up to somebody else in exchange for money or services, then there’s no reason why you shouldn’t be able to do that.
So why shouldn’t we say the same thing about other rights? Why shouldn’t we say you could sell your right to free speech or sell your right to live an autonomous life of freedom, right, by putting yourself into a slavery contract?
But – so that got Nozick a lot of criticism from people like Sam Freeman who kind of characterized libertarianism as a sort of new feudalism because of this idea. But actually I think the mainstream view of the libertarian intellectual tradition is one which holds certain rights to be inalienable in the sense that you just – you cannot transfer them. You cannot legitimately transfer them to another person in exchange for any consideration. So you got that in Spooner. You get that in Murray Rothbard quite explicitly and you get that in a lot of the earlier Catholic natural law theorists from whom Rothbard kind of selectively drew.
But it’s a puzzling idea. I mean it’s a very common idea in the libertarian and intellectual tradition, but it’s quite puzzling as to why we would think it to be true. Spooner never really gives us much of an argument here for why certain rights should be inalienable. It’s just kind of an assertion.
Aaron Ross Powell: I mean isn’t in a sense even baked into our common law contract tradition that – so we don’t allow what’s called specific performance in breach of contract. Like if I make a contract to build a house for Trevor and then I fail to do so, the courts aren’t allowed to force me to build him a house.
Trevor Burrus: But that would be the court – the reason they can do that is because then the third party of the state would be basically enslaving you.
Aaron Ross Powell: Right, but there’s – underlying it is this notion that you – like you can pay the damages but you can’t be enslaved. That seems like what – I mean that’s awfully similar to this. It’s not – I could – so it would be perfectly legitimate for me to say, look, I’m going to work a certain term of years for you and if I decline, if I back out halfway through, I may have to pay you some damages or repay you a portion of what you’ve paid me. But no contract of any kind, setting aside the issues of social contract or libertarian tradition, would allow you to force me to continue to finish out my term.
Matt Zwolinski: Yeah, that’s right. That’s absolutely right. But it’s not obvious why that should be the case, right? I mean so you – because in a sense, we’re limiting – by saying that that’s the case, we’re limiting your ability to enter into certain kinds of contracts, right? We’re saying you can’t do this even if you really, really want to, even if it would be mutually beneficial, even if it’s an authentic expression of your autonomous will and so forth.
It’s not clear why we should do that, right? You think like, OK, well look, you make a contract to do something for me and then you decide you don’t want to do it. If we allowed the specific performance, then that would involve forcing you to do this thing that you don’t want to do. You really don’t want to mow my lawn anymore and we think, “Ah, there’s something yucky about the state forcing you to do something you don’t want to do.”
But the state is going to force you to do something you don’t want to do anyway, right? It’s going to force you to give me money. You don’t want to give me money for [0:40:00] damages for violating your contract, but we don’t think that’s bad. So why is it OK for the state to force you to do that but not for – to force you to do the thing that you said you didn’t want to do?
I mean there might be a good argument for that. I’m not coming down one way or another on the side of inalienability but it’s tricky. It’s a difficult issue and it’s I think a little under‐theorized in a lot of the people who endorse it.
Trevor Burrus: Aaron had asked the question with – we talked about Spooner’s concern of basically giving anything up to the state and what happens in those situations and this is another thing of whether or not – I always wonder if this is the kind of argument that we should – because he has basically – he has an argument throughout that – give them an inch and they will take a mile or maybe it’s give them an inch and there’s nothing after that that precludes them from taking a mile, which seems like a slippery slope argument. There are well‐known problems with slippery slope arguments that are never exactly inevitable.
That’s a historical question and he says that in section eight. He says, “To say, as the advocates of our government do, that a man must give up some of his natural rights, to a government, in order to have the rest of them protected—the government being all the while the sole and irresponsible judge as to what rights he does give up, and what he retains, and what are to be protected—is to say that he gives up all the rights that the government chooses, at any time, to assume that he has given up; and that he retains none, and is to be protected in none, except such as the government shall, at all times, see fit to protect, and to permit him to retain.”
Is this going too far? I mean this doesn’t seem to be the actual historical case of – I mean there are some governments that take all your rights and he kind of goes back and says the government can’t take all your rights [Indiscernible] suck you dry as a taxpayer and a soldier. But I mean is he going too far?
Aaron Ross Powell: Well, but he then spends quite a while arguing that the government basically has taken all your rights. I mean he – later like in section 12, he has also I think five different ways that the government systematically denies our most important rights. So I think – I mean I don’t think that he – my sense is he’s not saying like we’ve given them an inch. It’s they’ve already taken everything there is. You just maybe don’t recognize it yet.
Matt Zwolinski: Yeah. I’m a kind of moderate libertarian but I actually like this argument. I thought it was pretty good because the way I read it is, is not that – not that government has necessarily taken all the rights. We don’t live under despotism in the United States now or then.
Trevor Burrus: I mean [Indiscernible] Spooner. I’m not sure if we do or don’t and he wasn’t even [Indiscernible] America.
Matt Zwolinski: There’s a difference no matter how unjust you think the government of the United States might be right now. There’s a difference between the United States and North Korea and I’m glad I live in the former and not the latter. But Spooner’s point is look, so you enter into this agreement with the United States, with the government to give up some of your rights and you also give the power to the government to decide when a particular right that it wants to claim is one that you’ve actually given up or not.
Well, if you’ve given the other party to your contract the absolute power to judge the terms of the contract, then you’ve essentially given up all of your rights and even if the other party doesn’t actually take them, even if they’re nice, right? And they only tax you a little bit or they only regulate you a little bit. The point is there’s nothing really stopping them from going as far as they might like to go.
So if you retain any freedom at all, you retain it only at the discretion of the government and so you’re really in what republican political theorists would describe as a condition of servitude, right? Servitude doesn’t mean necessarily that your master is ruling over you at every single moment, telling you what to do and what not to do. It just means that it’s always at your master’s discretion to tell you what to do and what not to do.
So you can’t count on that freedom. You can’t claim it as a matter of right.
Aaron Ross Powell: This has always struck me as one of the arguments against social contract thinking – for justifying the state’s power or at least an argument for why even if we can’t provide a strong reason for inalienability, we ought to think that inalienability should be present especially when we’re talking about a social contract is that – I mean the way that the government operates, its very nature, it’s – in any other contractual situation.
If I sign a contract with you to do something in exchange for money or whatever, one of the things that you can’t do is then just change the terms of the contract down the road. We both have agreed to this thing and it’s going to be enforced and what the state does – I mean Spooner says they do it under the table all the time. They just ignore terms of the contract but even officially, the state by the nature of lawmaking changes the terms of the contract all the time. I have no idea what that contract is going to look like in the future that even if I – say I did sign it.
Like, I became a citizen and signed a social contract. I don’t know what it’s going to look like 20 years from now and voting if I’m 1 of 50 million people or 1 of 300 million people is not a meaningful way for me to have much say over that. So that seems to push us towards this inalienability ought to be baked in just as a precaution given how totally weird the social contract it.
Matt Zwolinski: Right, right. Yeah, I mean this becomes especially problematic when you start thinking about consent in terms of tacit consent, right? So the idea that you find in Locke where – by continuing to reside in a country after a certain age, you thereby tacitly consent to – well, what exactly? What are the terms to which you are agreeing and what are the limits on those terms? If it’s tacit, if nobody is actually presenting the agreement to you and asking for your explicit consent, it’s very difficult to pin down with any precision what it is you’re agreeing to and what rights you’re reserving to your self and not delegating to the government.
Trevor Burrus: I think that the – we definitely have to get to – I think it’s section 11. That’s page 23 of the PDF that I – well, I’m not sure it’s the same one. We will put a link up on the show notes. But since it is election season forever and ever and evermore, until the end of our days, we have to definitely get to the part. We get to the bottom of 22 where he lists all his favorite political – pieces of political piffle.
Again, remember this is to Grover Cleveland. “And yet you have the face to make no end of professions, or pretences, that the impelling power, the real motive, in all this robbery and strife, is nothing else than ‘the service of the people,’ ‘their interests,’ ‘the promotion of their welfare,’ ‘good government,’ ‘government by the people,’ ‘the popular will,’ ‘the general weal,’ ‘the achievements of our national destiny,’ ‘the benefits which our happy form of government can bestow,’” and it goes on and on and on and on.
Aaron Ross Powell: Hoping change and …
Trevor Burrus: He says, “Sir, what is the use of such a deluge of unmeaning words, unless it be to gloss over, and, if possible, hide, the true character of the acts of the government? Such ‘generalities’ as these do not even ‘glitter.’ They are only the stale phrases of the demagogue, who wishes to appear to promise everything, but commits himself to nothing.”
I think that pretty much says everything about what we’re listening to right now in terms of presidential elections. But again, he has that special flair to – and I don’t even know if all those come from – with Cleveland’s speech. I don’t know if he was just making them up. It wasn’t clear. I couldn’t find a copy of Cleveland’s speech but they probably did.
That gets into the section there of the meaning of the politicians, which he gets into some interesting public choice analysis about what the robbers do between each other.
Matt Zwolinski: Yeah, there’s a lot of anticipation of the sort of public choice idea that politicians are no different from ordinary human beings. They have the same kind of motivations that other human beings have and if we give them large amounts of power, we ought to expect that they will use that power in a way that will benefit themselves and those to whom they’re closely connected. That’s another theme that just runs throughout Spooner’s work.
So like on – I think this is section nine for instance, one of the passages where Spooner articulates this idea. He says, “Sir, do you not know that in this conflict, between these ‘various, diverse, and competing interests,’ all ideas of individual ‘rights’—all ideas of ‘equal and exact justice to all men’—will be cast to the winds; that 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?”
Trevor Burrus: I have that one double red highlighted, so yes, we – that’s one of my favorites too.
Matt Zwolinski: A good quote. Yes, this idea of plunder. It’s a common term throughout the 19th century really. You find this a lot in Bastiat for example. He talks about the idea of legal plunder in the law and in other essays. It’s really a very public choice idea. I mean the idea of plunder is the idea of using the power of the state to enrich your self at other people’s expense and these 19th century libertarians saw very clearly that that’s – despite all the flowery rhetoric about serving the common good, that’s what the state actually does when you put power in its hands.
Aaron Ross Powell: So far, we’ve only touched on the first portion of this very long essay. [0:50:00] I mean after the sections that we’ve talked about, he goes on to spend quite a while talking about monetary policy and then quite a while talking about the obligations of contract. We encourage all of you to read the whole thing because it’s terrific and like Trevor said, we will put a link to it in the show notes.
But taken as a whole – I know you’re a fan of this essay but also you’re skeptical of parts of it. So where do you think Spooner goes wrong? What arguments are not very convincing?
Matt Zwolinski: Right. So I think – first of all, for readers taking up this essay for the first time, the really important sections are probably the first I would say 13 or so. If you read the first 13 sections, and they’re all fairly short, you will get a very good sense of the major ideas in Spooner’s work. The stuff after that is interesting but of secondary importance.
As far as where I think Spooner goes wrong, I mean there are a lot of things that I disagree with Spooner about – so for instance, I think – I’m sort of ambivalent on the issue of intellectual property. I’m not sure first of all what the right way of thinking about intellectual property rights is, whether one ought to take a kind of natural rights approach to it or whether that’s the kind of thing that we just have to think about in purely consequentialist terms.
But even if I buy into a natural rights analysis, I’m not sure that Spooner’s analysis of it is quite the right one. Again, he has got a very strong position on intellectual property rights such that if you create an idea, you come to own that idea in perpetuity, not just for the rest of your life but you can actually bequeath it to your children, right? So that – on to the end of time, you and your descendants will own the right to that book you wrote or the song you hummed [0:51:58] [Inaudible].
Aaron Ross Powell: So we owe Spooner royalties after all of this.
Matt Zwolinski: Yeah.
Trevor Burrus: Until the heat death of the universe, yes.
Matt Zwolinski: So I think he’s not entirely plausible on intellectual property and property in general too. I think Spooner is probably more of an absolutist than I would – I think is warranted. So Spooner’s theory of property and like physical objects and land and artifacts and things like that is actually explicated in his essay on intellectual properties. So there’s a good reason to read that essay even if you don’t care about intellectual property per se and it’s a broadly Lockean theory of property which I think is attractive in many respects.
But he modifies the Lockean idea in a couple of important ways. First he places much less emphasis on labor than Locke did. It’s about discovery for Spooner rather than labor. So you don’t necessarily have to work the land. If you’re just the first person to encounter it and put a fence around it, then that’s enough to get you titled and I think – maybe that’s a justifiable move. I think that might be – the labor mixing thing in Locke has probably caused more problems that it has created than it solved
But the other move is to ditch the Lockean proviso. Quiet explicitly he rejects the idea that there’s any proviso upon the appropriation of natural resources and just to remind you, the Lockean proviso says that it’s OK to appropriate resources for the common for your own private use, right? You can put a fence around a plot of land, cut down a tree and make a house out of it and so forth, so long as you leave enough and is good for others.
The idea being that look, God gave the earth to mankind in common. It’s here to support all of our lives. It’s not just here to be your own little private dominion. So it’s fine for you to support your own life with the fruits of the earth. After all, that’s what it’s there for, but you have to allow other people to do the same thing.
So the Lockean proviso plays this pretty important role in limiting initial appropriation. Spooner rejects that and thinks there’s no proviso. So I think that’s problematic. I think there are good reasons to be troubled by the idea of property even from a broadly libertarian perspective. I think Herbert Spencer’s discussion of property in the original edition of Social Statics, that I found to be a much more persuasive account and Spencer is explicitly anti‐Lockean in that essay. You might think Spencer and Locke would be on roughly the same side.
But Spencer says, look, first of all, those of you who are living here in England in the middle of the 19th century, who are appealing to Locke in order to justify your own property rights, that only works if the property rights that we have today actually came about through a process of peaceful labor mixing and exchange. Guess what. That’s not how we got here, right? We got here through blood, conquest and theft. So even if Locke was right, that wouldn’t do a darn thing to justify the rights we actually have because they didn’t come about in the way that Locke said they had to come about.
Second of all, the other problem and the deeper more fundamental problem with the Lockean account is when you enclose land that was previously open to the commons, you’re restricting the liberty of other people, right? You’re saying like here’s this piece of land that you used to be able to walk across and use however you want and now you can’t do it anymore. If you try to, I’m going to shoot you, right? I’m going to use violence against you to stop you from using that land.
That’s something Spencer says that ought to be kind of troubling to a libertarian, especially if you think, “Well, like, where’s the end of this? What happens if all the property in the world is appropriated by private hands?” So somebody who’s born into it without any property now sort of exists at the will of the property‐owning classes of mankind, right?
It’s like if you don’t own any property, you can only stand on the surface of the earth if you get the consent of one of the property owners and that looks like a – kind of a condition of serfdom almost, which as libertarians, we kind of ought to be troubled by.
So I think – I mean that’s – again, that’s a problem. I don’t know that it’s an insurmountable problem. I’m not saying let’s abolish property rights or anything like that. But I think that Spencer’s analysis of property rights is a much more nuanced and sophisticated one than the kind that you get in Spooner.
Trevor Burrus: But on the other hand, why should people read Spooner then or read this essay at least if nothing else?
Matt Zwolinski: Again, I can’t underestimate just how much fun it is. I mean Aaron and I were talking earlier that we could easily spend the entire hour just reading juicy quotes from this essay. There’s so much good stuff in here and I have big stars written all over my copy of the text.
So it’s a lot of fun and again, I think it – there are ideas in here which contain at the very least important insights even if we don’t want to follow Spooner as far as he goes with those ideas in the kind of absolute strident way that Spooner wants to take them. We must I think recognize that there’s – he’s on to something and we need to think really carefully about what it is he’s on to, what the implications are of what he’s on to and then what the limitations are of what he’s on to.
So there are some real important insights in here that I think express some deep ideas in the libertarian intellectual tradition, which even if at the end of the day you disagree with those ideas, and you want – you’re not a libertarian. You reject all this stuff. I think this is just a really provocative – thought‐provoking piece that will get you to think about government, about voting, about the nature of political power in a way that you probably wouldn’t have done so, had you not read this essay. So in that sense, it’s a real educational experience.
Aaron Ross Powell: Thank you for listening. If you have any questions, you can find us on Twitter, @FreeThoughtsPod. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, find us on the web at www.Libertarianism.org.