from Was Slavery Constitutional Before the Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation, by Randy E. Barnett.
I. SPOONER'S LIFE AND CAREER [7]
Lysander Spooner was born January 19, 1808, on his father's farm in rural New England near Athol, Massachusetts. Raised as one of nine children, Spooner left home to live in nearby Worcester where, in 1833, he began studying law in the offices of John Davis, a prominent Massachusetts politician who shortly thereafter served as Governor and then Senator. In Davis' absence, Spooner also studied with Charles Allen, a state senator who eventually served as Chief Justice of the Massachusetts Supreme Court.
The rules of the Massachusetts courts in those days required a student to study in a lawyer's office before admission to the bar. College graduates were required to study for three years, while non-graduates were required to do so for five years. Spooner's first act as a lawyer was to challenge what he thought was a rule that discriminated against the poor. After just three years of study, with encouragement from both Davis and Allen (who had graduated from Yale and Harvard respectively), Spooner set up his practice in Worcester in open defiance of the rules. Spooner published a petition in the local newspaper and sent copies of it to each member of the state legislature. He argued that "no one has yet ever dared advocate, in direct terms, so monstrous a principle as that the rich ought to be protected by law from the competition of the poor." [8] In 1836, the legislature abolished the restriction.
Spooner's writing career began at about the same time as his legal one, with essays criticizing Christianity from a deistic perspective. [9] Possibly in part for this reason, his law practice did not flourish and, in 1836, he left Massachusetts to make his fortune in "the West" -meaning in this case, Ohio. There, Spooner vied with other speculators of the time to buy land where future cities would spring up. He purchased a tract along the Maumee River for a town called Gilead, which today is named Grand Rapids, Ohio. But Gilead lost out to better connected rivals and a general real estate collapse, so that by 1840, Spooner returned to his father's farm.
After writing about how the banking system should be reformed to avoid the kind of speculative collapse he had experienced, [10] Spooner struck out in an entirely new direction: In 1844, he founded the American Letter Mail Company to contest the U.S. Post Office's monopoly on the delivery of first class mail. Postal rates in those years were notoriously high and several companies arose to challenge the government's monopoly. As he had when he confronted restrictions on entering the Massachusetts bar, Spooner vigorously defended his action with a pamphlet entitled, The Unconstitutionality of the Laws of Congress Prohibiting Private Mails. [11] Unfortunately, this time he was up against a more intransigent foe. Although Spooner's mail company was very successful, legal challenges by the government soon exhausted his financial resources and by July, 1844 his business was all but defunct without his ever having the opportunity to fully litigate his constitutional claims.
It was after this dispiriting experience that Spooner returned to Athol and began writing about slavery. With financial assistance from wealthy New York philanthropist and abolitionist Gerrit Smith, Spooner produced the first volume of The Unconstitutionality of Slavery in 1845. Spooner's arguments drew criticism to be sure, especially from abolitionist Wendell Phillips, [12] to which in 1847 he responded in a second, entirely new volume of the book which was appended to the first. [13] The entire work runs nearly 300 pages.
The passion of Spooner's opposition to slavery is evidenced by his conspiratorial efforts to free the captured John Brown. He had met Brown shortly before Brown's ill-fated raid on Harper's Ferry, and afterwards attempted to implement a plan in which radical abolitionists would kidnap the governor of Virginia and hold him hostage for Brown's release. The plan was never acted upon, though Spooner's associates had gone so far as to locate a boat and crew. Spooner also provided legal arguments to aid abolitionists charged with violating the Fugitive Slave Act, and his work on behalf of such defendants led him in 1854 to publish a book, Trial by Jury, [14] in which he defended as essential to a free society the jury's role as triers of both fact and law-the position sometimes referred to as "jury nullification."
Until his death in 1887 at the age of 79, Spooner eked out an impoverished existence as a writer, activist, and legal theorist. His writings were extensive, including a lengthy, though never-completed, book defending intellectual property." [15] At a memorial service in his honor the following resolution was passed:
Resolved That while he fought this good fight and kept the faith, he did not finish his course, for his goal was in the eternities; that, starting in his youth in pursuit of truth, he kept it up through a vigorous manhood, undeterred by poverty, neglect, or scorn, and in his later life relaxed his energies not one jot; that his mental vigor seemed to grow as his physical powers declined; that although, counting his age by years, he was an octogenarian, we chiefly mourn his death, not as that of an old man who has completed his task, but as that of the youngest man among us,-youngest because, after all that he had done, he still had so much service that the best we can do in his memory is to take up his work where he was forced to drop it, carry on with all that we can summon of his energy and indomitable will, and as old age creeps upon us, not lay the harness off, but following his example and Emerson's advice, "obey the voice at eve obeyed at prime."
In the spirit of that resolution let us now consider Lysander Spooner's approach to constitutional interpretation that led him to conclude that slavery was unconstitutional. [16]
[7] Except as noted, the biographical information in this section comes from Shively, Biography, in 1WORKS, supra note 3, at 15-62. For an intellectual biography focusing more on the evolution of Spooner's views, see James J. Martin, Lysander Spooner, Dissident Among Dissidents, in MEN AGAINST THF STATE 167-201 (1970). Return
[8] I WORKS, supra note 3, at 18. Return
[9] See LYSANDER SPOONER, The Deist's Immortality, and An Essay On Man's Accountability For His Belief (1834). reprinted in I WORKS. supra note 3; LYSANDER SPOONER, The Deist's Reply to the Alleged Supernatural Evidences of Christianity (1 836), reprinted in I WORKS, supra note 3. Return
[10] See LYSANDER SPOONER, Constitutional Law, Relative To Credit, Currency, and Banking (1843), reprinted in 5 WORKS, supra note 3; LYSANDER SPOONER, Poverty: Its Illegal Causes, and Legal Cure (I 846), reprinted in 5 WORKS, supra note 3. Return
[11] See LYSANDERSPOONER, The Unconstitutionality of the Laws of Congress Prohibiting Private Mails (1844), reprinted in I WORKS, supra note 3. Return
[12] See WENDELL PHILLIPS, REVIEW OF LYSANDER SPOONER'S ESSAY ON THE UNCONSTITUTIONALITY OF SLAVERY (1847) (reprint ed. 1969) [hereinafter PHILLIPS, REVIEW OF SPOONER]. Phillips' essay ran 95 pages and was subsequently republished in 4 MASS. Q. REV. 3 (1851). Phillips' critical reaction to Spooner's essay was predictable insofar as "the chief target of Lysander Spooner's monograph ... had been Wendell Phillips's tract espousing the contrary thesis of the Constitution as a pro-slavery compact." Baade, supra note 6, at 1049 (referring to THE CONSTITUTION: A PRO-SLAVERY COMPACT: OR SELECTIONS FROM THE MADISON PAPERS [Anti-slavery Examiner - No. XI, 1844; 2d ed. 1845] which had been authored by Phillips). Nonetheless, the popularity and influence of Part I of Spooner's book within abolitionist circles, if no other, is evidenced both by the length and obvious care of Phillips' reply, by his reference therein to Spooner's "much-praised essay," (PHILLIPS, REVIEW OF SPOONER, at 69), and by the fact that Phillips published his pamphlet "at his own expense." CARLOS MARTYN, WENDELL PHILLIPS: THE AGITATOR 216 (1890). Return
[13] Although Spooner and Phillips were locked in debate, given the close timing and multiple publications of their respective essays, the number of revised editions in which additional matefial was added, and the rarity and imprecision of citation practices in those days, it is not entirely clear at any given point who was responding to which work of the other. Phillips does once mention a "second edition" by Spooner (PHILLIPS, REVIEW OF SPOONER, supra note 12, at 53), but the reference to which he refers in Spooner appears in a footnote in Part I (of the 1860 revised edition) - a footnote apparently added in a "second edition" which appeared sometime before Part 11 was published in 1847. Although James J. Martin says Part II was initially published in 1846 and then attached to Part I in 1847, he consults the 1856 edition of Part II, owing to the fact of "the 1846 edition being especially scarce." MARTIN, supra note 3, at 180 n.52. In contrast, on the page facing the reproduction of the 1860 edition, Charles Shively notes that "Part II first appears in 1947, both separately and with Part I." 4 WORKS, supra note 3. Moreover, 1847 is its copyright date. Perhaps Martin, not having seen the 1946 edition confused a "second edition" of Part I appearing in 1846 with Part II. Moreover, throughout Phillips' essay, he never refers to any page number in Part II of Spooner's book. In contrast, several arguments in Part 11 of Spooner's book, indeed entire chapters, are clearly