Lysander Spooner: Libertarian Pioneer

By Carl Watner

[This article was originally published in REASON magazine in March 1973, pp. 20-23.]

One of the most interesting Individualists to have lived, both on a biographical and philosophical plane, was Lysander Spooner. Here was a man who lived his ideas, fought for them, and suffered their consequences. Although he may not have won the battle in his lifetime, his name was symbolic of victory. Lysander was the admiral of Sparta who destroyed the Athenian fleet, ending the Peloponnesian War. [1]

Spooner was born in 1808 of New England farm toilers and trained himself for a career in the law. His career was to be a series of disputes about the legality and conduct of contemporary government: his public petition, TO THE MEMBERS OF THE LEGISLATURE OF MASSACHUSETTS, concerning requirements for admission to the bar in that state, which he openly flaunted; his court case claiming that the State of Ohio could not obstruct navigable interstate streams; his commercial and constitutional challenge against the United States Postal Service in 1844, which resulted in the reduction of postage; and his abolitionist stance before and during the Civil War.

He was a great pamphleteer, and his numerous writings include articles titled “The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails,” “No Treason, Nos. I, II and VI,” “An Essay on the Trial by Jury,” “The Unconstitutionality of Slavery” and “Constitutional Law, Relative to Credit, Currency, and Banking.” Many of these articles originally appeared in Benjamin Tucker’s individualist organ, LIBERTY.

Spooner’s last piece appeared between June 20, I885, and March 26, I886, and was entitled, “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.” [2] In many ways this work was the crowning glory of Spooner’s life. It presented the full range of his political ideas and drew upon his prior writings. It was the primary source referred to in writing this article.

Recently Ayn Rand has published a letter entitled “Representation without Authorization.”[3] Not only is her subject, the principles of political representation, one in which Spooner was greatly interested, but Spooner’s approach and conclusions sharply illustrate the difference arising among libertarians today; for example, the contrast between those who favor a limited government and those who favor no-government or anarcho-capitalism.

CONTRACT LAW AND AGENCY PRINCIPLES

As a lawyer, Spooner was fully knowledgeable of contract law and the principles of agency. He stressed that any contract in which a man gives up his natural, individual rights is void, because it is an inherent impossibility for a man to alienate himself from such rights. [4] Further, the fundamental principle underlying a principal-agent relationship is a written document serving as a power of attorney or authorization. In this manner, a principal is fully responsible to third parties for the actions of his agent.

Applying these ideas to the national government, Spooner concluded that the government and the Constitution on which it is allegedly based, is illegitimate.[5] The Constitution cannot be interpreted as a social contract because the general laws of agency prohibit such a construction and the type of government that would result. Political representation is based on majority rule and the secret ballot. A legislator claims to be a representative of his constituency; yet he cannot show which voters selected him because of the secret ballot; nor can he produce any power of attorney substantiating his claim that he is in fact their representative; nor can he in good faith lay claim to represent those who voted against him, since they were obviously opposed to his selection. Similarly, the Constitution was only approved by a small number of men when it succeeded the Articles of Confederation. Nor can supporters of the Constitution show legal proof that people living today accept it. Spooner asserted that no government may claim to rest on the consent of the governed unless it has first secured the individual consent of every man who is required to contribute either by taxation or personal service to its support.

All this, or nothing, is necessarily implied, because one man’s consent is just as necessary as any other man’s.

There is, therefore, no alternative but to say, either that the separate, individual consent of every man, who is required to aid, in any way, in supporting the government, is necessary, or that consent of no one is necessary.

All this, or nothing, was necessarily implied in the Declaration made in 1776.

The whole Revolution, therefore, as a Revolution, was declared and accomplished by the people, acting separately as individuals, and exercising each his natural rights, and not by their governments in the exercise of their constitutional powers.…

Thus 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 had lived. And this principle was asserted, not as a right peculiar to themselves, or to that time, or as applicable only to the government then existing; but as a universal right of all men, at all times, and under all circumstances.…

This principle was a true one in 1776. It is a true one now. It is the only one on which any rightful government can rest. It is the one on which the Constitution itself professes to rest. If it does not really rest on that basis, it has no right to exist; and it is the duty of every man to raise his hand against it. [6]

AGENCY RULES APPLIED TO GOVERNMENT

Miss Rand presents representative government as being based on the principle that man is a rational being and that man is able to choose and bear the responsibility for the course of his life.[7] “Politically this principle is implemented by a man’s right to choose his own agents, i.e., those whom he authorizes to represent him in the government of his country”. [8] However, in Spooner’s analysis, there is no distinction between political representation and representation for any other purpose. Agents acting in any capacity whatsoever, either political or commercial, must still abide by the rules of agency which require an agent to produce the authority of his principal. Nor may an agent represent two principals whose interests conflict. At law, if a person purportedly acts as an agent, and subsequently is unable to produce a power of attorney in order to disclose his principal, then that alleged agent is said to have acted solely in his own name, and must ratify and suffer the consequences of his actions and contracts. Of course, if individuals acted in their own name and performed coercive acts such as government agents perform, they would be treated as criminals. Thus, Spooner concluded that government is a secret band of robbers and murderers who are bound by that faith which prevails among confederates in crime.

Men honestly engaged in attempting to establish justice in the world, have no occasion thus to act in secret; or to appoint agents to do acts for which they (the principals) are not willing to be responsible.

The secret ballot makes a secret government; and a secret government is a secret band of robbers and murderers.…

This is the kind of government we have; and it is the only one we are likely to have, until men are ready to say: We will consent to no Constitution, except such an one as we are neither ashamed nor afraid to sign; and we will authorize no government to do any thing in our name which we are not willing to be personally responsible for.[9]

AYN RAND’S ANALYSIS COMPARED

The methods used in the process of political representation are not called into question by Miss Rand. She does not challenge the use of the secret ballot, nor the failure of personal responsibility to attach to political representatives, when they are unable to produce a written document disclosing their principals. However, she does conclude her letter by stating: “No organization has the right to speak for or to act in the name of anyone but its own members. No organization may be taken as an agent for an individual without his personal knowledge or consent”.[10] Spooner would have wholeheartedly agreed, but apparently Miss Rand does not apply this principle to the concept of government as we know it today; for governments as organizations are certainly in violation of her statement.

Spooner consistently maintained that the existence of a lawmaking government or any government, unless voluntarily organized and supported, was a violation of men’s rights. Since it is impossible for men to delegate their natural rights (because such rights are inalienable), it is impossible for ‘A’ to delegate his right of lawmaking to ‘B’, and in return agree to abide by ‘B’s’ laws. Nor can ‘A’ delegate such authority to ‘B’ in order to compel ‘C’ to obey ‘B’s’ laws. Neither lawmaking nor judicial powers can be delegated. [11]

At the same time that Spooner spoke out against improper delegation of power, however, Spooner was willing to admit that men may voluntarily associate together for the end of maintaining justice. Such a justice enforcing association would have to rest on the previously outlined principles of agency. Every man has certain judicial powers or rights. He has by nature the right to judge and enforce his own rights, to judge of or redress his own wrongs. But, in doing so, a man must only act in accordance with his own judgment and conscience, subject to his own personal responsibility if he commits an error injurious to another.

If a man chooses to enter into a voluntary association for the maintenance of justice, he still must be personally responsible for his actions and those of his agents. Particularly those who exercise judicial powers must be at all times responsible for their own actions and decisions. Such so-called “judges” would be personally responsible for any errors resulting in injuries to others. In Spooner’s eyes, a tribunal of justice acting under such instructions should consist of several judges to lessen the probability of any error being made, and all proceedings should be reduced to writing for the protection of the interested parties.

TRUE CHARACTER OF GOVERNMENT

By way of comparing his ideas to contemporary governments, Spooner concluded that there never was a single court of justice in the United States; [12] nor had the Treasury of the government ever an honest dollar in its till.[13] So long as governments depend on coercion, justice cannot be obtained; nor can money used in support of the government be shown to have been obtained voluntarily. If taxation without consent is not robbery, as government advocates maintain, then Spooner deduced that any band of robbers have only to declare themselves a government, and thus their robberies would be legalized.[14] And this is essentially what government is, according to Spooner, robbery under the guise of taxation in one form or another. The true character of government assumes that all human rights of the people are thrown into one large hotch potch, and this heap is then thrown to the lawmakers and members of Congress, for each to carry off as large a portion as possible. The political parties which participate in this plunder are thus standing armies of robbers-each trying to rob each other and prevent themselves from being robbed. [15]

Spooner had great respect for the Common Law and heritage derived from the English struggle for liberty. His theories rested on two primaries: no taxation without representation and trial by jury. The first meant securing the voluntary consent of every man who must support the government, and the second meant a jury trial by peers. Spooner’s legal ethics were summed up in his pamphlet on NATURAL LAW; OR THE SCIENCE OF JUSTICE: A TREATISE ON NATURAL LAW, NATURAL JUSTICE, NATURAL RIGHTS, NATURAL LIBERTY, AND NATURAL SOCIETY; SHOWING THAT ALL LEGISLATION WHATSOEVER IS AN ABSURDITY, A USURPATION, AND A CRIME. Justice is the only principle that any man can rightfully enforce upon others or consent to have enforced against himself. Men may compel each other to obey this law of justice, but outside this realm, no man or group of men may lay claim to violate individual rights. Individual liberty means freedom from all human coercion so long as a person lives honestly, hurts no one, and gives to every man his due. [16]

If men accept a lawmaking government as legitimate, Spooner pointed out, then they must then forego all claims to their individual rights. Once it is conceded that any man or body of men have the powers to make laws, in contrast to the natural law of justice, and can compel other men to obey them, then every vestige of man’s natural liberty is gone.[17] If only one right is arbitrarily taken from men, then all the rest of their rights may suffer. There is no right that the government of the United States considers inviolable. [18] The government does not recognize a man’s right to his own life, for it engages in conscription; it does not recognize a man’s right to his property, for it engages in taxation; and it does not recognize a man’s right to make his own contracts, for it enforces legal tender laws. Such actions only tend to re-enforce the argument that the major enemy of man’s right is government. Nor has government changed since Spooner’s day.

Spooner’s analyses are as pertinent today as when written. He would not accept government for what it claimed to be. He analyzed government from its own legal framework, and saw that it was nothing but usurpation. He blazed a trail which others had started before him, and which libertarians today are still on. Governments must be killed by ideas; not by force. Libertarians today can certainly use the strength and logic of Spooner’s ideas to kill the idea of government and its mystique.

Carl Watner is a student of the works of Spooner. He is interested in corresponding with readers interested in Spooner’s ideas. He may be contacted directly at 1112 Race Street, Baltimore MD 21230.

NOTES AND REFERENCES

[1] This and the following biographical data is based on information supplied by Charles Shively in his “Critical Biography of Lysander Spooner” which appears in Volume One of THE COLLECTED WORKS OF LYSANDER SPOONER.
[2] This and the entire known works of Spooner have been reprinted by M & S Press, Weston, Massachusetts, 1971, in their six volume set, THE COLLECTED WORKS OF LYSANDER SPOONER. When no reference is given, other than a section number reference is made to “A Letter to Grover Cleveland”.
[3] THE AYN RAND LETTER, Vol. 1, No. 21, July 17, 1972, published by The Ayn Rand Letter, Inc., 201 East 34th Street, New York, New York 10016. This is referred to below as RAND LETTER.
[4] Section 7.
[5] See “No Treason, No. VI”, particularly Section 8 of this work.
[6] “No Treason, No. I,” Section 4.
[7] RAND LETTER, p. 1.
[8] RAND LETTER, p. 1.
[9] “No Treason, No. VI,” Section 9.
[10] RAND LETTER, p. 4.
[11] Section 16.
[12] Section 17.
[13] Section 6.
[14] Section 6.
[15] Section 10.
[16] NATURAL LAW; OR THE SCIENCE OF JUSTICE, Section 1, Chapter 1. Also see Sections 3, 4 and 11 of “A Letter to Grover Cleveland.”
[17] Section 12.
[18] Section 12.