The Lysander Spooner Reader George H. Smith
The Lysander Spooner Reader George H. Smith, Ed. An Introduction, pp. vii-xix. (San Francisco, Fox & Wilkes 1992) 306 pp. “
Introduction
Lysander Spooner (1808-1887) was one of the greatest libertarian theorists of the nineteenth (or any other) century and a founding father of the modem movement. He was radical to the bone, a nonconformist among nonconformists who refused to toe any party line. Trained as a lawyer, Spooner often wrote like a lawyer, citing precedents, statutes, and legal authorities. This legalistic style enshrouds some of his works with a dry, forbidding appearance. But huddled among his legal arguments are passages of literary and philosophic brilliance. Spooner was no ordinary lawyer. He cited the Constitution when he believed it conformed with natural law; this led him to assert the unconstitutionality of chartered banks, a monopolistic post office, legal tender laws, slavery, and other offenses against liberty. In the final analysis, however, Spooner condemned the Constitution as possessing “no authority,” and this distinguished him from many radicals of his day. espoused individualist- anarchism (in substance if not in name), a radical no-government philosophy with roots deep in American history–Native American Anarchism, as Eunice Schuster has called it.[1] For Spooner, natural law and its corollary, natural rights, are the foundation of a free and just society. He was an unterrified Jeffersonian who refused to compromise the principles expressed in the Declaration of Independence. If man is endowed with inalienable rights, then no one, including government, should violate them. If government requires the consent of the governed, then a legitimate government must acquire the explicit consent of every person in its jurisdiction. If the people have a right to resist usurpations and the right to overthrow tyrannical governments, then these rights may be enforced against the American government. If such principles make it difficult for governments to function, then, as Spooner saw the matter, so much the better. Government is a standing threat to liberty, peace, prosperity, and social order.
Spooner’s contempt for government was rivaled only by his contempt for fellow libertarians who compromised their principles under cover of expediency. Pure justice is a thing of beauty, and Spooner could not abide those who knowingly defaced it. Where others saw expediency, Spooner saw only cowardice or betrayal or ambition masquerading as practicality.
According to Spooner, the five-year apprenticeship law was meant to exclude “the well-educated poor” from the legal profession and shield those “educated in comparative ease and plenty” (many of whom “are unfit for the profession”) from the effects of competition. Spooner continues:
The truth is that legislatures and Courts have made lawyers a privileged class,
and have thus given them facilities, of which they have availed themselves, for
entering into combinations hostile, at least to the interests, if not to the
rights, of the community–such as to keep up prices, and shut out competitors.[3]
A person who wishes to be a lawyer has as much right to earn his living by this means as by any other. His competence should concern only “the lawyer himself and his clients”; the government cannot legislate competence, nor should it try. A free-market legal system, Spooner contends, would break up the cliquish legal fraternity and provide better protection against malpractice. Here as elsewhere Spooner was ahead of his time:
If the profession were thrown open to all, this combination of lawyers would
doubtless be broken up–they, like other men, would hold themselves severally
responsible for their own characters alone–they would have no inducement to
wink at or attempt to hide the malpractices of others–individuals, who
should suppose themselves injured by the practice of an attorney, instead of
laying his complaints before the Bar, would lay them before the grand jury, or
some other tribunal–and . . . it is probable the community would sometimes fare
the better for it.[4]
These remarks, written when Spooner was twenty-seven, display a bold free-market radicalism. But Spooner’s libertarianism was of one piece; it was economic and political. In the same article quoted above, Spooner protests the requirement that lawyers must swear allegiance to the Commonwealth and the Constitution. His remarks are as charming as they are incisive.
The right of rebelling against what I may think a bad government, is as much my
right as it is of the other citizens of the Commonwealth, and there is no reason
why lawyers should be singled out and deprived of this right. [I]t is nothing
but tyranny to require of me an oath to support the constitution, as a condition
of my being allowed the ordinary privilege for getting my living in the way I choose.[5]
Massachusetts law required a lawyer to inform the court if he knew of “an intention to commit a falsehood.” Again, Spooner cuts to the heart of the matter:
I do not choose to be made an informer in this manner, against men with whose matters
I have nothing to do. That is not what a lawyer goes into Court for–he goes there
to defend the rights and interests of his clients, and for nothing else–and he has
a right so to do. . . .[6]
Scarcely any statute relating to the legal profession escaped Spooner’s censorious gaze. For example, lawyers were required to contribute fifty dollars to the Law Library Association. Spooner was outraged. If he needed to use the law library, he was willing to pay for it–but what if a lawyer lived too far away to make use of it, or what if a lawyer owned his own books? Unless Spooner joined the Association or used its books, that organization had no more claim to his fifty dollars than “The Missionary or Bible Society.”
In 1836 Spooner left Worcester for the Ohio country to seek his fortune in land speculation, just in time to lose everything during the Panic of 1837. Spooner blamed the economic collapse on governmental regulation of banking and currency. In A New System of Paper Currency and other tracts, Spooner tried to show, in considerable detail, how a totally unregulated currency and banking system would work in a free market.[7]
In 1844, Spooner turned his attention to the government’s monopoly on mail delivery. He established the American Letter Mail Company, a private postal service that drastically undercut the government’s rate. Spooner defended his illegal action in a spirited pamphlet, The Unconstitutionality of the Laws of Congress Prohibiting Private Mails. The Constitution (Art. 1, Sec. 8) declares that “The Congress shall have power to establish post-offices and post roads;” however, according to Spooner, this does not justify a government monopoly on mail delivery. Indeed, government agencies are typically concerned more with feathering their own nests than with providing efficient services. Quoting Spooner:
Universal experience attests that government establishments cannot keep pace
with private enterprise in matters of business (and the transmission of letters
is a mere matter of business). Private enterprise has always the most active
physical powers, and the most ingenious mental ones. It is constantly increasing
its speed, and simplifying and cheapening its operations. But government
functionaries, secure in the enjoyment of warm nests, large salaries, official
honors and power, and presidential smiles–all of which they are sure of so long
as they are the partisans of the President–feel few quickening impulses to labor,
and are altogether too independent and dignified personages to move at the speed
that commercial interests require. They take office to enjoy its honors and emoluments,
not to get their living by the sweat of their brows. They are too well satisfied
with their own conditions, to trouble their heads with plans for improving the accustomed
modes of doing the business of their departments–too wise in their own estimation,
or too jealous of their assumed superiority, to adopt the suggestions of others–too
cowardly to innovate–and too selfish to part with any of their power, or reform the
abuses on which they thrive. The consequence is, as we now see, that when a cumbrous,
clumsy, expensive and dilatory government system is once established, it is nearly
impossible to modify or materially improve it. Opening the business to rivalry and
free competition, is the only way to get rid of the nuisance.[8]
Whereas, Lysander Spooner, of Massachusetts, that man of honest heart and acute and
profound intellect, has published a perfectly conclusive legal argument against the
constitutionality of slavery;
Resolved, therefore, that we warmly recommend to the friends of of freedom, in this
and other States, to supply, within the coming six months, each lawyer in their
respective counties with a copy of said argument.[9]
Spooner’s role in abolitionism can be understood only by placing him in the broader context of the controversies that divided that volatile and fascinating movement.[10]
The dominant figure in abolitionism was William Lloyd Garrison, editor of The Liberator. Garrison firmly believed that the Constitution sanctions slavery, even though the words “slave” and “slavery” never appear in the document. Garrison’s position was strengthened in 1840, when James Madison’s record of the Constitutional Convention was published for the first time.[11] Much that transpired during the Constitutional Convention remained hidden from Americans for fifty years, thereby permitting delegates to escape accountability through death. Madison’s detailed notes–suitably altered so as to understate his youthful nationalism–left no doubt about the place of slavery in the Constitution. It was sanctioned and protected as a means to bring the deep South into the union. This was especially apparent in three clauses: the provision that “all other persons” were to be counted as three-fifths when computing representation in the House (Art. I, sec. 2); the provision that Congress could not outlaw the slave trade until 1808 (Art. I, sec. 9); and the provision that required states to return runaway slaves to their masters (Art. IV, sec. 2). Garrison’s position was clearly and colorfully stated in 1854, when abolitionists convened in Framingham, Massachusetts to protest the return of an escaped slave, Anthony Burns. During his speech, Garrison held up a copy of the Constitution and condemned it as “a covenant with death and an agreement from hell.” Then Garrison burned a copy of the Constitution while declaring, “So perish all compromises with tyranny!” Most of the audience responded with amens.[12] Garrison’s view of the Constitution led him to oppose any political activity by abolitionists. His colleague Wendell Phillips defended this position in Can Abolitionists Vote or Take Office Under the United States Constitution? (1845). Phillips notes that all officials, state and federal, are required to swear an oath “to support the Constitution of the United States”–and he maintains that no abolitionist can do so in good conscience, because the Constitution is a pro-slavery document. Nor should abolitionists vote, because voting delegates authority to an agent, and what “one does by his agent he does himself.” Phillips continues:
Of course no honest man will authorize and request another to do an act which
he thinks it wrong to do himself. Every voter, therefore, is bound to see,
before voting, whether he could himself honestly swear to support the constitution.[13]
In The Unconstitutionality of Slavery, Spooner sought to refute the Garrisonian critique of the Constitution and thereby open the door for political activity by abolitionists. Spooner was neither the first nor the last to try this, but his attempt was the most thorough and legally grounded. To establish the unconstitutionality of slavery, Spooner believed, was a necessary step in abolishing slavery. Even if the entire North became abolitionist, “they would still be unable to touch the chain of a single slave, so long as they should concede that slavery was constitutional.” Southern lawyers were noted for their strict and literal interpretation of the Constitution, so Spooner hoped to change their minds by meeting them on their own ground. He based his case on the rules of legal interpretation expounded by Sir William Blackstone and other authorities of Common Law.
According to Spooner, law, in its most basic sense, refers to natural law–“that natural, universal, impartial and inflexible principle, which, under all circumstances, necessarily fixes, determines, defines and governs the civil rights of men.” All men are endowed with equal rights to life, liberty, and property. This is “the paramount law”; indeed, strictly speaking, there can be “no law but natural law,” because no human enactments can overturn the provisions of natural justice. Legitimate governments must rest on consent; a social contract, and even that contract “cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government–which is but an association of individuals–than to a single individual.” The only “legitimate and true object of government,” is to protect natural rights. Even a majority, however large, cannot agree to a contract (a constitution) that violates “the natural rights of any person or persons whatsoever.” Such a contract “is unlawful and void” and has “no moral sanction.”[14]
This argument from natural law renders slavery immoral and unjust, whatever the Constitution might say. But Spooner does not base his constitutional argument on this premise. In interpreting the Constitution, he insists only that “the ordinary legal rules of interpretation.” be observed. Natural right, in Spooner’s argument, functions as a presumption, a beacon to guide legal interpretations. The most important rule is that all language in the Constitution “must be construed ‘strictly’ in favor of natural right,” unless there is clear and convincing evidence to the contrary. Before we can interpret constitutional provision as contrary to natural right (i.e., as upholding slavery), the terms of that provision must be “express, explicit, distinct, unequivocal, and one to which no other meaning can be given. . . . [15]
While examining the slavery clauses of the Constitution, Spooner falls back on his basic rule of interpretation. Any apparent violation of natural right must be stated explicitly and not permit another, more libertarian interpretation. For example, the fugitive slave clause refers to persons “held to service or labor.” According to Spooner, this provision, if interpreted literally, refers to indentured servants, not to slaves. And so it goes with other slavery provisions of the Constitution. Spooner was unmoved by the supposed intentions of the Constitution’s framers. The only relevant legal point is what the Constitution in fact authorizes in express language, not what its framers intended it to authorize. The Constitution never mentions slaves or slavery, so by strict rules of interpretation–indeed, by the same rules that most Southerners followed–the constitution cannot be viewed as pro-slavery.
In a letter to his friend George Bradburn, Spooner indicated that his “theory of voting” did not allow him to support any political party, even one that was antislavery. Bradburn was annoyed. How could it be “that such notions are held by him, who wrote the ‘Unconstitutionality of Slavery”‘? Spooner replied:
I do not rely upon “political machinery” (although it may, or may not, do good,
according as its objects are, or are not, legal and constitutional) . . . because
the principle of it is wrong; for it admits . . . that under a constitution, the
law depends on the will of majorities, for the time being, as indicated by the acts
of the legislature.[16]
Spooner could not sanction the Constitution and the government it established. Although the Constitution is “a thousand times better . . . than it is generally understood to be,” it is so seriously flawed that “honest men who know its true character” should not sanction it.[17] Wendell Phillips was indeed correct when he charged that “Mr. Spooner’s idea is practical no-governmentalism.[18]
Thus, Spooner was neither a Garrisonian nor a political abolitionist. As Lewis Perry has observed, Spooner “was a maverick abolitionist who belonged to none of the familiar factions in the movement.”[19]
In A Defence for Fugitive Slaves (1850), Spooner presents an argument that he would later expand into one of his most famous works, An Essay on the Trial By Jury (reprinted in this volume). Americans who assisted runaway slaves were subject to prosecution under the Fugitive Slave Laws. Spooner regards these laws as unconstitutional and unjust; therefore, anyone prosecuted under them should be exonerated by the jury.
If an indictment be found, the jury who try that indictment, are judges of the law, as well as the fact. If they think the law unconstitutional, or even have any reasonable doubt of its constitutionality, they are bound to hold the defendants justified in resisting its execution.[20]
According to Spooner, a judge represents the government, where as a jury represents the people. And the people, speaking through a jury, have a right to assess laws as well as facts. Should a jury find a law unjust or unconstitutional, it should effectively nullify that law by refusing to convict the defendant.
In An Essay on the Trial By Jury, Spooner presents a good deal of historical material to support his case for jury nullification. Did early American law conform to Spooner’s view, as he claims? The distinguished legal historian Lawrence M. Friedman writes:
In American legal theory, jury power was enormous, and subject to few controls. There was a maxim of law that the jury was judge both of law and of fact in criminal cases. This idea was particularly strong in the first Revolutionary generation, when memories of royal justice were fresh. In some states the rule lasted a long time, and in Maryland, the slogan was actually imbedded in the constitution. But the rule came under savage attack from some judges and other authorities. . . . It . . . threatens the power of judges.[21]
After Brown had been captured and sentenced to hang, Spooner hatched a plan to kidnap Governor Henry Wise of Virginia and hold him as hostage in exchange for Brown. This plan went nowhere, however, owing to lack of funds.[23]
Spooner was adamant in his belief that the right forcibly to resist unjust laws is inalienable. The constant fear of an uprising by the people is the only thing that keeps rulers from becoming tyrannical. As Spooner puts it:
The right and the physical power of the people to resist unjustice, are really the
only securities that any people ever can have for their liberties. Practically no
government knows any limit to its power but the endurance of the people. And our
government is no exception to the rule. But that the people are stronger than the
government, our representatives would do any thing but lay down their power at the
end of two years. And so of the president and senate. Nothing but the strength of
the people, and a knowledge that they will forcibly resist any very gross transgression
of the authority granted to their representatives, deters these representatives from
enriching themselves, and perpetuating their power, by plundering and enslaving the people.[24]
Spooner’s dissent from orthodox abolitionism is nowhere more apparent than in No Treason, perhaps his greatest work (and reprinted in this volume.) Nearly every abolitionist supported the North during the Civil War. This was true even of Garrison, a professed pacifist who had previously called for free states to secede from the Union. Garrison, who viewed the Civil War as a struggle between “free men and a desperate slave oligarchy,” wrote:
All my sympathies and wishes are with the [Northern] government, because it is entirely
in the right, and acting strictly in self-defense and for self-preservation. This I can
say, without any compromise of my peace-principles.[25]
Spooner attacks these common beliefs in No Treason, where he undertakes a remarkable and devastating analysis of the Constitution and its moral authority (it had none, according to Spooner). He clearly distinguishes the evil of slavery from the right of secession–a right that was embodied in the American Revolution.
[T]he 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 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 natural right of all men, at all times, and under all circumstances.[26]
Spooner stood nearly alone among radical abolitionists in his defense of the right of the South to secede from the Union. Then, as if anticipating revisionist historians, he denies that the war had been fought over slavery. Rather, the war erupted “for a purely pecuniary consideration, to wit, a [Northern] control of the markets in the South; in other words, the privilege of holding the slave-holders themselves in industrial and commercial subjection to the manufacturers and merchants of the North (who afterwards furnished the money for the war.)”[27] Spooner’s extensive treatment of this theme is surely one of the most fascinating pieces of writing from the Civil era.
This is probably the only major piece not to be included in The Collected Works of Lysander Spooner. Vices Are Not Crimes owes its modern revival to Carl Watner, who unearthed it, and to Janice Allen, who published it (TANSTAAFL, 1977) for the first time in more than a century. Were it not for this joint labor of love, one of Spooner’s finest essays might have remained buried indefinitely between the covers of an obscure book.
Vices Are Not Crimes is as fresh as the day it was written, for it speaks directly to the current persecution of drug consumers, sexual nonconformists, and others who pursue their happiness in illegal ways. Indeed, most modern tracts on personal liberty pale in comparison to Spooner’s uncompromising and unapologetic defense.
According to Spooner, every mentally competent person over ten years of age–regardless of race, sex, religion, or personal proclivities–is equally possessed with natural rights, including the right to pursue happiness. A government should protect this right (assuming we take the Declaration of Independence seriously), but this is impossible if a government also tries to punish vice. A government can do one or the other but not both, any more than it can protect both liberty and slavery.
No one is morally perfect, so if a government were to punish all vices impartially, “everybody would be in prison for his or her vices,” leaving “no one left outside to lock the doors upon those within.” Only one possibility remains: a government might punish only select vices. But, Spooner contends, it is “utterly absurd, illogical, and tyrannical” for a group to punish the vices of others while demanding liberty for their own.
The violation of rights is the bright line by which Spooner separates vices from crimes. Crimes violate rights; vices do not. Vices may be self-destructive or offensive, but–like all peaceful, voluntary activities–they should remain outside the province of law and government. Such vices include “gluttony, drunkenness, prostitution, gambling, prize-fighting, tobacco-chewing, smoking, and snuffing, opium-eating, corset-wearing, idleness, waste of property, avarice, hypocrisy, &c., &c.” If practitioners of these and other vices cannot be reformed voluntarily, if they go “on to what other men call destruction,” then they “must be permitted to do so.”
The essence of Spooner’s argument runs deep in the individualist tradition. For example, two centuries before Spooner, John Locke had argued that a ruler should not try to stamp out sin. Why? Because sins as such “are not prejudicial to other men’s rights, nor do they break the public peace of societies.”
Spooner begins with rights but does not end there. Vices Are Not Crimes contains a wealth of insightful observations about the highly contextual nature of virtue and vice. Spooner shows great respect for the unique character and circumstances of each individual, and he studiously avoids that pretentious moralizing that so often mars works of this kind. People must make decisions in their quest for happiness, and some may choose better than others. But virtue and happiness cannot flourish unless a person is free “to inquire, investigate, reason, try experiments, judge, and ascertain for himself. . . .” Coerced virtue is a contradiction in terms.
The language of rights, consent, and social contract-the vocabulary of Lysander Spooner–was no longer popular among Northern intellectuals, for this had been the language of treason and secession. The word “union” (which suggested a confederation of sovereign states) gave way to “nation”; and “The United States are” (the verb preferred by James Madison, among many others) became “The United States is. . . [29]
After the war, a speaker at William and Mary College declared: “We at the North, all learned that there was in our . . . Government a power of which we never divine, as being the great incarnation of a nation’s rights, privileges, honor and life.” According to the historian John Motley, “no individual is anything in the midst of this great revolution”; and, in the words of Walt Whitman, the war taught America that “a nation cannot be trifled with.[30]
Lysander Spooner no longer spoke the language of his countrymen, and he watched the power of government accelerate at an astonishing rate.[31] Spooner was swimming against the current of opinion, but he never gave up. His friend and colleague Benjamin Tucker gave him a fitting tribute:
He died at one o’clock in the afternoon of Saturday, May 14 [1887], in his little room
at 109 Myrtle Street, surrounded by trunks and chests bursting with the books, manuscripts,
and pamphlets which he had gathered about him in his active pamphleteer’s warfare over
half a century long. . . . Some time or other the story of this glorious life of eighty
years will be told in detail as it deserves.[32]
