Liberty Matters

Spooner Defended


1.   Preliminaries
Lysander Spooner was by any standard a remarkable person.  I can’t resist mentioning two fascinating items that Randy Barnett omitted from his brief biography of Spooner:  his entrepreneurial operation, from 1844 to 1851, of a private mail service in illegal (or at least contrary-to-statute) competition with the U.S. Postal Service (he argued that the federal postal monopoly was unconstitutional,[41] and attributed a reduction in federal postage rates to his own efficiency in underselling the government),[42] and his attempt, in 1859, to secure John Brown’s release from prison by organizing an (in the event unsuccessful) effort to kidnap the governor of Virginia and hold him hostage against Brown’s freedom[43] (Spooner himself in the previous year had prepared a broadside encouraging opponents of slavery to foment slave insurrections, only to be discouraged by Brown himself from publishing it on the grounds that it might serve to tip Brown’s hand.[44]
Moving on to the substance of Randy’s essay:  while Randy shares my enthusiasm for Spooner’s work, he argues that Spooner’s two best-known contributions – his 1845-47 case for the unconstitutionality of slavery and his 1870 case against the authority of the Constitution – both fail.  I think that on the contrary they both largely succeed.  Let me say why.      
2.  Interpreting the Constitution
I believe there is more to Spooner’s theory of legal interpretation than the “original public meaning” approach to which Randy assimilates it.  The “original public meaning” approach, as I see it, is essentially in agreement with its rivals (original-intent on the one hand and living-constitution on the other) in taking the decisive question to be:  whose semantic intentions are to determine the meaning of contested terms and phrases in a constitution (or in any law for that matter)?  Oversimplifying somewhat, the original-intent approach says “those of the framers” (or perhaps of the ratifiers); the living-constitution approach says “those represented by society’s understanding today”; and the original-public-meaning approach says “those represented by society’s understanding at the time of adoption.”
Spooner, by contrast, does not think that anyone’s semantic intentions all by themselves are sufficient to establish the meaning of a legal provision.  Consider how he handles the Constitution’s notorious fugitive-slave clause, which provides that a person “held to service or labor in one State” and “escaping into another” must be “delivered up on claim of the party to whom such service or labor may be due.”  One of Spooner’s principal moves here is to focus on the meaning of the term “due.”  Since, he argues, by natural justice all persons are free and equal, it follows that one person’s labor cannot be “due” to another except as a result of of free consent and contract; inasmuch as “the ‘service or labor,’ that is exacted of a slave” is not “such as can be ‘claimed,’ consistently with natural right, as being ‘due’ from him to his master,” the fugitive-slave clause cannot authorize anyone’s forcible return except in the case of those who have freely contracted to perform some service and then broken the contract (which was not the case with the slaves).[45]
Here Spooner is assuming that the correct interpretation of a contested normative term like “due” must invoke the correct moral account of which things are due from one person to another (and similar treatment of normative legal terms can be found throughout his book) – not the framers’ account, not the prevailing social understanding in 1789, not the prevailing social understanding today, but the correct account. 
In short, Spooner is implicitly relying on a realist theory of reference, according to which what a term means is determined not by semantic intentions alone but by semantic intentions in conjunction with the way the world really is, whether or not it is known or believed to be that way by those using the term.  Spooner thus partly anticipates the groundbreaking approach to reference developed in the 1970s by such philosophers as Hilary Putnam and Saul Kripke,[46] according to which facts about reality can play a role in determining what we mean when we speak, even if we are unaware of those facts.  And if one takes there to be objective facts about morality and justice (as Spooner of course does), then facts about, e.g., what is really “due” from one person to another will play a role in determining what the word “due” in the fugitive-slave clause means, even if no one at the time had been aware of those facts about justice.
Philosopher and legal theorist David Lyons shows how the realist theory of reference, coupled with an objective theory of justice, applies to constitutional interpretation:
Imagine that you and I disagree about the substantive requirements of social justice. We then differ as to how the concept of justice applies; we differ, that is, about the principles of justice. This is possible if the concept of justice admits of different interpretations, or competing conceptions.... Now consider a constitutional example.... [A] court applying the just compensation clause would not necessarily decide a case as the original authors would have done.... Instead, a court would understand the Constitution to mean precisely what it says and thus to require just compensation. A court would need to defend a particular conception of just compensation ... against the most plausible alternatives.... Contested concepts do not seem confined to morality and law. Their properties are at any rate similar to those of concepts referring to natural substances or phenomena, such as water and heat. On a plausible understanding of the development of science, for example, the caloric and kinetic theories of heat are (or at one time were) competing conceptions of the concept heat.... If, as most people would agree, ‘heat’ refers to a determinate physical phenomenon, there can be, in principle, a best theory of heat. This implies that there can be a best conception of a contested concept. This suggests, in turn, that contested concepts in the Constitution might have best interpretations.... Now if the idea that the Constitution includes contested concepts is correct, then to apply the Constitution in terms of their best interpretation is, in effect, to apply doctrines whose application is called for by the original Constitution. But, just as interpretation of the concept heat requires more than mere reflection, any interpretation of this type inevitably draws upon resources that are neither implicit in the text nor purely linguistic. It ... requires that courts applying ‘vague clauses’ of the Constitution interpret ‘contested concepts,’ which requires reasoning about moral or political principles.[47]
While I doubt that Lyons was aware of Spooner, I take him to be essentially reformulating Spooner’s position in light of contemporary developments in philosophy of language.
Thus in reply to Randy’s charge that the context of the Constitution’s communicative content forbids a Spoonerite reading, I reply, with Spooner, that that context must include not only the social understandings prevailing in 1789 but also objective facts about justice according to which the services of slaves are not “due” to their masters (and so on for the Constitution’s other contested terms).
3.  Rejecting the Constitution
From defending the Constitution, in 1845, against the charge of being a pro-slavery document, Spooner famously passed, in 1870, to rejecting the Constitution as a document of “no authority.”  Randy remarks:  “Why Spooner changed his mind about the Constitution is unknown.”
If what’s in question is a change of mind about the interpretation of the Constitution, then I don’t think Spooner did change his mind.  In his 1870 assault on the Constitution, Spooner still notes that his strictures apply only to the Constitution “not as I interpret it, but as it is interpreted by those who pretend to administer it[48] (Spooner’s emphasis) and adds that “the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize.”[49]  In short, he continues to regard the Constitution, properly interpreted, as having a pro-liberty content. 
Nor is the fictional nature of the Constitution’s consent-based authority a new discovery of Spooner’s in 1870, since in the earlier work he had already described the “assent and intention of the people” on which the Constitution claims to rest as “a thing of assumption, rather than of reality,” and had pointed out that without that assumption (which he admits is false) “the constitution itself is denied, and its authority consequently invalidated.”[50]  Just as he still maintains in 1870 the constitutional interpretation he had defended in the 1840s, so as early as the 1840s he has already anticipated the view of constitutional authority that he will elaborate in 1870.
What Spooner changes his mind about between 1845 and 1870, I think, is neither the interpretation of the Constitution nor its authority, but rather its utility.  He tells us explicitly:  “whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.”[51] 
Randy thinks he sees in Spooner’s Unconstitutionality of Slavery a way to defend the Constitution against Spooner’s Constitution of No Authority – namely, by maintaining that “a law can bind in conscience if it does not violate the rights of those on whom it is imposed – so their consent is unnecessary – and if it is necessary to protect the rights of others – so it is obligatory for the same reasons our rights are obligatory.”  To this claim, Spooner would make two replies.
First: while the requirements of objective justice may bind in conscience, a statutory law with the same content as what justice requires does not itself bind in conscience.  In Spooner’s words:  “If [laws] command men to do justice, they add nothing to men’s obligation to do it, or to any man’s right to enforce it. They are therefore mere idle wind, such as would be commands to consider the day as day, and the night as night.”[52]
Second: while the Constitution, correctly interpreted by Spoonerite principles, may be a libertarian document, it is no accident that it has not traditionally been so interpreted; the actually nonconsensual nature of the United States government creates an incentive structure that renders such a government exceedingly unlikely to remain bound by any even slightly libertarian reading of its own powers.  As Spooner noted in 1852, the only way that the administrators of the legal system can be “restrained from seeking their own interests, and the interests of those who elected them, at the expense of the rights of the remainder of the people” is by curtailing their “authority in the enactment and enforcement of laws” – and not simply by regaling them with paper prohibitions urging them to exercise their authority in nice ways.[53]
4.  Other Issues
While Spooner’s views on the Constitution – its interpretation, its authority, and its utility – will no doubt rightly continue to occupy us as we proceed in this conversation, I hope we will also have a chance to talk about some of Spooner’s other ideas.  These include positions I am willing to defend: Spooner’s view that an unjust law is not a law; his support for jury nullification and opposition to voir dire (particularly topical in light of recent reports of racially discriminatory abuse of voir dire);[54] his views on property rights and the rectification of land theft; his theory of class conflict; his curse-on-both-your-houses attitude toward the Civil War; his bottom-up approach to political change; and his anticipation of the set of positions known nowadays as “left-libertarianism” or “free-market anti-capitalism.”  They also include positions where I think Spooner went astray: his defense of intellectual property (copyrights and patents); his severely minimalist approach to the grounding of a natural-law ethic; and some of his specific economic and political proposals.  I’d also be interested in discussing the relation between Spooner’s and Hayek’s theories of law, where I think each has something to learn from the other.
[41.] Lysander Spooner, The Unconstitutionality of the Laws of Congress, Prohibiting Private Mails (New York, 1844). Online </titles/2231>.
[42.] Spooner, Who Caused the Reduction of Postage? Ought He to Be Paid? (Boston, 1850) . Online </titles/2290#lf1531-01_head_034>.
[43.] Janet Kemper Beck, Creating the John Brown Legend: Emerson, Thoreau, Douglass, Child and Higginson in Defense of the Raid on Harpers Ferry (Jefferson, NC:  McFarland, 2009), pp. 127-29
[44.] Spooner, To the Non-Slaveholders of the South: A Plan for the Abolition of Slavery (n.p., 1858). Online </titles/2181>.
[45.] Spooner, The Unconstitutionality of Slavery, Part I (Boston, 1845), pp. 81-82. Online </titles/2206>.
[46.] Hilary Putnam, Philosophical Papers, vol. 2: Mind, Language and Reality (Cambridge, 1979); Saul Kripke, Naming and Necessity (Harvard, 1980).  Those familiar with Ayn Rand’s work on reference may notice a similarity here as well; see Roderick T. Long, “Reference and Necessity: A Rand-Kripke Synthesis?,” Journal of Ayn Rand Studies 7.1 (2005), pp. 209-28.
[47.] David Lyons, “Constitutional Interpretation and Original Meaning,” pp. 85-99; in Social Philosophy & Policy 4.1 (Fall 1986), pp. 75-101.  For my own attempt to develop this approach as a reading of Spooner, see my working paper “Inside and Outside Spooner’s Natural Law Jurisprudence,” available online at: <>.
[48.] Spooner, No Treason, no. VI: The Constitution of No Authority (Boston, 1870), pp. 22-23). Online </titles/2194>.
[49.] Ibid., p. 59.
[50.] Spooner, The Unconstitutionality of Slavery: Including Parts First and Second (Boston, 1847), p. 225.
[51.] Constitution of No Authority, op. cit., p. 59.
[52.] Spooner, 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 (Boston, 1886), p. 4.  Online </titles/2224> . For a contemporary elaboration of this point, see Charles W. Johnson, “Liberty, Equality, Solidarity: Toward a Dialectical Anarchism,” online at:  < “A Place for Positive Law A Contribution to Anarchist Legal Theory,” online at:  <>.
[53.] Spooner, An Essay on the Trial by Jury (Boston, 1852), p. 217.  Online </titles/2181>. For the contrast between constitutions as sets of paper prohibitions and constitutions as institutions embodying real-world incentive structures, and the superiority of stateless legal orders over governmental ones as instances of constitutionalism in the second sense, see my “Market Anarchism As Constitutionalism,” in Roderick T. Long and Tibor R. Machan, eds., Anarchism/Minarchism: Is a Government Part of a Free Country? (Aldershot: Ashgate, 2008), pp. 133-54.
[54.] See my “Black Jurors Need Not Apply,” Center for a Stateless Society (22 October 2015), online at: <>.