from Was Slavery Constitutional Before the Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation, by Randy E. Barnett.
III. NATURAL RIGHTS AND CONSTITUTIONAOL INTERPRETATION: SPOONER'S ANALYSIS OF SLAVERY
A. Alleged Textual References to Slavery
1. Distinguishing "Free Persons" from "Other Persons"
2. The "Importation of such Persons"
3. "No person held to Service of Labour"
B. The Original Intentions of the Framers and Ratifiers: Wendell Phillips' Critique of Spooner
It would seem that the argument against slavery that follows from Spooner's views of natural law and natural rights is obvious and almost trivial. (1) Written laws, including written constitutions, that violate natural justice as defined by natural rights are not to be enforced by judges. (2) Slavery is unjust because it violates the natural rights of the slave. Therefore, (3) slavery is unconstitutional and not to be enforced by judges. Q.E.D. Yet, despite the fact that Spooner would have accepted this syllogism as sufficient to condemn slavery, [45] this was not the principal method of constitutional interpretation he brought to bear on its constitutionality. "I shall not insist," he wrote, "upon the principle ... that there can be no law contrary to natural right; but shall admit, for the sake of argument, that there may be such laws." [46] His primary interpretive strategy was more interesting.
Spooner argued that the primacy of natural justice meant that the following rule of statutory interpretation, enunciated by Chief Justice John Marshall in the 1805 case of United States v. Fisher, [47] should be applied to the constitution as well:
Where rights are infringed, where fundamental principles are overthrown, where the general system of laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects. [48]
Spooner's rendered this interpretive maxim as follows:
1st, that no intention, in violation of natural justice and natural right ... can be ascribed to the constitution, unless that intention be expressed in terms that are legally competent to express such an intention; and 2d, that no terms, except those that are plenary, express, explicit, distinct, unequivocal, and to which no other meaning can be given, are legally competent to authorize or sanction anything contrary to natural right. [49]
In short, "all language must be construed 'strictly' in favor of natural right." [50] But, given its rationale, this rule of construction is not symmetrical.
The rule of law is materially different as to the terms necessary to legalize and sanction anything contrary to natural right, and those necessary to legalize things that are consistent with natural right. The latter may be sanctioned by natural implication and inference; the former only by inevitable implication, or by language that is full, definite express, explicit, unequivocal, and whose unavoidable import is to sanction the specific wrong intended. [51]
From this interpretive starting point, we can now see Spooner's basic strategy for finding slavery unconstitutional.
To assert, therefore, that the constitution intended to sanction slavery, is, in reality, equivalent to asserting that the necessary meaning, the unavoidable import of the words alone of the constitution, come fully up to the point of a clear, definite, distinct, express, explicit, unequivocal, necessary and peremptory sanction of the specific thing, human slavery, property ' in men. If the necessary import of the words alone do but fall an iota short of this point, the instrument gives, and, legally speaking, intended to give, no legal sanction to slavery. Now, who can, in good faith, say that the words alone of the constitution come up to this point? No one, who knows anything of law, and the meaning of words. Not even the name of the thing, alleged to be sanctioned, is given. The constitution itself contains no designation, description, or necessary admission of the existence of such a thing as slavery, servitude, or the right of property in man. We are obliged to go out of the instrument, and grope among the records of oppression lawlessness and crime - records unmentioned, and of course unsanctioned by the constitution - to find the thing, to which it is said that the words of the constitution apply. And when we have found this thing, which the constitution dare not name, we find that the constitution has sanctioned it (if at all) only by enigmatical words, by unnecessary implication and inference, by innuendo and double entendre, and under a name that entirely fails of describing the thing. Everybody must admit that the constitution itself contains no language, from which alone any court, that were either strangers to the prior existence of slavery, or that did not assume its prior existence to be legal, could legally decide that the constitution sanctioned it. And this is the true test for determining whether the constitution does, or does not, sanction slavery, viz. whether a court of law, strangers to the prior existence of slavery or not assuming its prior existence to be legal - looking only at the naked language of the instrument - could, consistently with legal rules, judicially determine that it sanctioned slavery. Every lawyer, who deserves that name, knows that the claim for slavery could stand no such test. [52]
Assuming one accepts the premise that slavery is a natural in justice which violates the natural and inalienable rights of those who are enslaved, Spooner's interpretive strategy gives rise to two obvious questions. First, what about those notorious sections of the Constitution that have long been accepted as sanctioning slavery? Second, what about the evidence of the original intentions of the framers concerning the constitutionality of slavery? Spooner spent the bulk of his nearly three hundred page work addressing these issues-particularly the first one-in detail, and I simply cannot do his analysis complete justice here. Virtually each page of this portion of his book contributes an additional argument, piece of evidence, or refinement of previous arguments. Yet, for you to appreciate his approach to interpretation, I must try to give at least a flavor of his responses.
A. Alleged Textual References to Slavery
There are three passages in the original Constitution that are commonly thought to refer to and constitutionally legitimate slavery. The first is in Article I, Section 2:
Representatives and direct Taxes shall be apportioned among the several State, which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. [53]
The term, "other Persons" in this clause is interpreted as referring to slaves. The second passage is also in Article 1, but in Section 9:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding teti dollars for each Person. [54]
The term "Importation of such Persons" in this clause is interpreted as to referring to slaves. The third passage is in Article IV, section 2:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. [55]
The term "person held to Service or Labour" in this clause is interpreted as referring to slaves.
One of the striking things about these three passages, when one stops to consider the matter, is that none of them uses the term "slave." As Spooner wrote: "Not even the name of the thing, alleged to be sanctioned, is given." [56] Now we may all think we know the reasons why this word was avoided, but there is one reason that cannot be advanced. The word was not avoided because it was unknown to those who framed and ratified the Constitution or was not in common parlance at the time. Indeed, to the contrary, if one wanted to avoid any ambiguity as to the meaning of these three provisions, and one meant to refer to slaves, then "slave" would be by far the most obvious term to use. Had the framers or ratifiers wished to bind themselves and future generations by their written constitution to sanction slavery, they could have used the word that expressed this intention in no uncertain terms. And yet, for whatever reason, those who wrote and ratified this Constitution chose not to do so. And if by failing to do so, they failed to explicitly ratify and incorporate into the Constitution the natural injustice of slavery, then the reasons for their failure are immaterial. "It is not the intentions men actually had," Spooner contended, "but the intentions they constitutionally expressed, that make up the constitution." [57] Spooner finds one reason for this precept in the indeterminacy of basing legal rules on actual intentions:
Men's presumed intentions were all uniform, all certainly right, and all valid, because they corresponded precisely with what they said by the instrument itself-, whereas their actual intentions were almost infinitely various, conflicting with each other, conflicting with what they said by the instrument, and therefore of no legal consequence or validity whatever. [58]
But does this not presuppose the existence of some free-floating "plain-meaning" wholly independent of the intentions of the people who ratified it? Not really. It only presupposes that language comes to have an objective meaning within a particular community that can be discerned independently of individual opinions and usages. Indeed, were language not to have some such meaning, it is not clear how it could serve as a general medium of communication. Moreover, the process of ratification presupposes that the Constitution has meaning independent of individual intentions. As Spooner argued:
We must admit that the constitution, of itself, independently of the actual intentions of the people, expresses some certain fixed, definite, and legal intentions; else the people themselves would express no intentions by agreeing to it. The instrument would, in fact, contain nothing that the people could agree to. Agreeing to an instrument that had no meaning of its own, would only be agreeing to nothing. [59]
How then is the Constitution's meaning to be determined? "[T]he only answer that can be given," Spooner concluded,
is, that it can be no other than the meaning which its words, interpreted by sound legal rules of interpretation, express. That and that alone is the meaning of the constitution. And whether the people who adopted the constitution really meant the same things which the constitution means, is a matter which they were bound to settle, each individual with himself, before he agreed to the instrument; and it is therefore one with which we have now nothing to do. [60]
By this reasoning if the people ratified a document that failed to clearly authorize slavery and which omits all explicit reference to the practice using the most obvious and well-known term to describe it, we cannot presume that these enigmatic references are to slavery if some other meaning can reasonably be assigned to them.
It is also striking that the terms in two of these three passages refer to persons: persons held to service or labor, and the importation of such persons. Persons are people and part of "We the People" who presumably assented to the Constitution in order to "establish Justice ... and secure the Blessings of Liberty" [61] to themselves and their posterity.
[T]here is no legal ground for denying that the terms " the people of the United States," included the whole of the then people of the United States. And if the whole of the people are the parties to it, it must, if possible, be so construed as to make it such contract as each and every individual might reasonably agree to. [62]
In sum, the Constitution refers in these two clauses to "persons" and in the preamble to "We the People." Nowhere does the Constitution exclude either those persons referred to in these sections or those persons then held as slaves to be excluded from "the People." Persons who are part of the People cannot be presumed to assent to a document that would hold them in bondage. And, short of this, the government of the United States would not rest on the consent of the governed.
Even more fundamentally, creatures who are persons are in possession of certain inalienable natural rights. This much was conceded by those advocates of slavery who were compelled to argue that slaves were not people. Thus, if slaves are not people, and if it is permissible to enslave another only if that other creature is not a person, then these two passages cannot be referring to or sanctioning slavery, since they explicitly refer to "persons" and persons cannot justly be held as slaves.
But Spooner's interpretive methodology requires that the terms in these three passages be given some definitive legal meaning. How do we do so? Spooner would require us, if we can, to draw this meaning from the Constitution itself, and failing that from the ordinary meanings these terms have in law or in common usage. What else could these terms be reasonably construed as referencing other than slavery? Although I can relate to you the meanings advocated by Spooner, I cannot recount all the evidence and arguments he provides on behalf of these meanings. [63] Let us take up these passages in order.
1. Distinguishing "Free Persons" from "Other Persons"
First, what does "other persons" as opposed to "free persons" mean in Article I, Section 2? Spooner argues, at length and with considerable authority, [64] that "English law had for centuries used the word 'free' as describing persons possessing citizenship, or some other franchise or peculiar privilege-as distinguished from aliens, and persons not possessed of such franchise or privilege." [65] For instance: "A man was said to be a 'free British subject'-meaning thereby that he was a naturalized or native born citizen of the British government, as distinguished from an alien, or person neither naturalized nor native born." [66]
By this interpretation this clause refers to two classes of persons: free persons and other persons. The class of "free" persons corresponds to what Spooner calls "full citizens," both native born and naturalized, who have not for some reason been dispossessed of their rights of citizenship, perhaps because they are convicted felons, whereas the class of "other persons" corresponds to "partial citizens" or what are commonly called aliens.
The real distinction between these two classes was, that the first class were free of the government-that is, they were full members of the State, and could claim the full liberty, enjoyment and protection of the laws, as a matter of right, as being parties to the compact, while the latter class were not thus free; they could claim hardly anything as a right, (perhaps nothing, unless it were the privilege of the writ of habeas corpus,) and were only allowed, as a matter of favor and discretion, such protection and privileges as the general and State governments should see fit to accord to them [67]
By this interpretation, taxation and representation are apportioned as follows: each "full citizen" of the United States counts for one; each resident alien or "partial citizen" is counted as two-thirds a full citizen. [68] The reason for the partial taxation and representation of resident aliens, is straight-forward:
They are protected by our laws, and should pay for that protection. But as they are not allowed the full privileges of citizens, they should not pay an equal tax with the citizens. They contribute to the strength and resources of the government, and therefore they should be represented. But as they are not sufficiently acquainted with our system of government, and as their allegiance is not made sufficiently sure, they are not entitled to an equal voice with the citizens, especially if they are not equally taxed. [69]
But can these two classes be grounded in the Constitution itse1r. As evidence that this meaning is incorporated in the U.S. Constitution, Spooner looked to the power granted Congress in Article I, Section 8 "To establish an uniform Rule of Naturalization." [70]
The power of naturalization is, by the constitution, taken from the States, and given exclusively to the United States. The constitution of the United States, therefore, necessarily supposes the existence of aliens - and thus furnishes the correlative sought for. It furnishes a class both for the word "free," and the words "all other persons," to apply to. [71]
After extensive analysis of both text and general usage, Spooner concludes:
It is perfectly manifest, from all the evidence given in the preceding pages...that the word "free," when used in laws and constitutions, to describe one class of persons, as distinguished from another living under the same laws or constitutions, is not sufficient, of itself, to imply slavery as its correlative. The word itself is wholly indefinite, as to the kind of restraint implied as its correlative. And as slavery is the worst, it is necessarily the last, kind of restraint which the law will imply. There must be some other word, or provision, in the instrument itself, to warrant such an implication against the other class. But the constitution contains no such other word or provision. It contains nothing but the simple word "free." While, on the other hand, it is full of words and provisions, perfectly explicit, that imply the opposite of slavery. [72]
2. The "Importation of such Persons"
What has Spooner then to say about the meaning of the term "Importation of such Persons" in Article I, Section 9? The argument made by those asserting this to be a reference to slavery is that, because only property can be "imported," any person who is "imported" is a slave. Spooner rejects this definition of "importation." The word "applies correctly to both persons and things. The definition of the verb 'import' is simply 'to bring from a foreign country, or jurisdiction, or from another State, into one's own country, jurisdiction or State. [73] Spooner's next argument is particularly insightful:
When we speak of "importing" things, it is true we mentally associate with them the idea of property. But that is simply because things are property, and not because the word "import' has any control, in that particular, over the character of the things imported. When we speak of importing "persons," we do not associate with them the idea of property, simply because "persons" are not property.
We speak daily of the "importation of foreigners into the country;" but no one infers therefrom that they are brought in as slaves, but as passengers. ... A man imports his wife and children-but they are not therefore his slaves, or capable of being owned or sold as his property. A man imports a gang of laborers, to clear lands, cut canals, or construct railroads; but not therefore to be held as slaves. [74]
On the basis of this common usage, Spooner thus reads the term "importation" in this clause to refer to persons coming into the country. [75] Whereas the term "migration" refers to persons going out of the country. "An innocent meaning must be given to the word, if it will bear one. Such is the legal rule. [76]
Spooner offers several other arguments in favor of this interpretation, but one is particularly, though typically, clever. The restriction on the "Importation of Persons" cannot refer to a restriction on Congress' power to refuse to recognize slavery, because Congress' power to naturalize anyone who enters the country is unqualified. Even if it could not bar the entry of slaves, by the slavery reading of the clause, it could free every slave thus imported upon arrival. Congress has
the perfect power to pass laws that shall naturalize every foreigner without distinction, the moment he sets foot on our soil. And they had this power as perfectly prior to 1808, as since. And it is a power entirely inconsistent with the idea that they were bound to admit, and forever after to acknowledge as slaves, all or any who might be attempted to be brought into the country as such. [77]
To argue that the power of Congress to naturalize persons held as slaves upon their entry into the county is qualified by the clause barring restrictions on importation is, once again, to assume what is at issue: that "importation of persons" refers to slaves.
3. "No person held to service of Labour"
By now I trust that those of you who are in the "Spoonerian" swing of things can easily generate an "innocent" interpretation of the passage that requires the return of a person held to service or labor in one state who escapes from into another state. Why, of course, "persons held to Service or Labour" [78] refers, not to slaves, but to indentured servants and convicts. [79] It has been estimated that a majority of early immigrants to this country came as indentured servants or convicts And Northern nonslave states had runaway servant laws akin to the runaway slave laws in slave states. [80]
Neither "service" nor labor is necessarily slavery; and not being necessarily slavery, the words, cannot, in this case, be strained beyond their necessary meaning, to make them sanction a wrong. An indented apprentice serves and labors for another. He is "held" to do so, under a contract, and for a consideration, that are recognized, by the laws, as legitimate, and consistent with natural right. Yet he is not owned as property. A condemned criminal is "held to labor" - yet he is not owned as property. [81]
Spooner also considers whether the phrase, "No Person held to Service or Labour in one State, under the Laws thereof," delegates to states the sole power to declare when someone is or is not held to service, such that, under this provision, Congress and the federal judiciary must defer to state law whenever it defines a persons as being held to service. He answers:
The simple fact, that an act purports to "hold persons to service or labor," clearly cannot, of itself , make the act constitutional. If it could, any act, purporting to hold "persons to service or labor," would necessarily be constitutional, without regard to the "persons" so held, or the conditions on which they were held. It would be constitutional, solely because it purported to hold persons to service or labor. [82]
Under this theory any person could be made a slave by state law and, by this interpretation of this clause, such "acts of legislatures would be constitutional, solely because they made slaves of the people." [83] Spooner concludes: "Certainly this would be a new test of the constitutionality of laws." [84] To the contrary, any state law purporting to authorize holding a person to service must be assessed to see if it is constitutional and such an assessment would "depend upon a number of contingencies-such as the kind of service or labor required, and the conditions on which it requires. Any service or labor, that is inconsistent with the duties which the constitution requires of the people, is of course not sanctioned by this clause…" [85]
But what of the argument that the framers of the Constitution intended these clauses to refer to slavery, and that the people ratifying the Constitution understood this as well? I turn now to Spooner's analysis of original intent.
B. The Original Intentions of the Framers and Ratifiers: Wendell Phillips' Critique of Spooner
Although Spooner persuaded some people that slavery was unconstitutional, including Frederick Douglass, [86] he failed to persuade other abolitionists, such as Garrison, or the judiciary, or posterity. Why were his arguments rejected? The most comprehensive criticism of Spooner was leveled by Wendell Phillips in his Review of Lysander Spooner's Essay on The Unconstitutionality of Slavery. [87] Whereas the self-educated Spooner slashed at slavery with a broadsword, Phillips, the Harvard-trained student of Joseph Story, assailed Spooner with a rapier. The thrust of Phillips lawyerly and elegantly-written critique was, first, that Spooner had misconstrued or distorted judicial pronouncements as authority for Spooner's interpretive presumption against unjust interpretations. Yet, although Spooner, in his reply to Phillips, supplemented his argument with additional authority, his discussion of the nature of law preceding both Parts I and II clearly shows that his defense of his interpretive principles was normative, rather than based on precedent.
Some of Phillips' polemics against Spooner's theory of interpretation, while persuasive when written, would not ring as true today as they may have sounded at the time. For example, as a reductio ad absurdum he argues that
if we construe the Constitution according to Mr. Spooner's rules, women are constitutionally eligible to the Presidency and to Congress; nothing but "extraneous and historical evidence" shields us from this result. As Mr. Spooner does not allow of this when it will fix upon a clause any meaning contrary to "natural right," he is bound to hold that woman may now legally fill these offices, or to give up his rules….[88]
He then offers capital punishment as another example of something the Supreme Court could prohibit Congress from imposing on pirates pursuant to its Article 1, Section 8 powers, should the Court be captured by members of "the Anti-Capital Punishment party." [89] "This would be legitimate on Mr. Spooner's rule, but would it not be absurd?" [90]
There is one other respect in which the passage of time has undermined Phillips' argument. In addition to the three passages considered above, Phillips contends that two additional constitutional provisions are "universally supposed to refer to and recognize Slavery."' It would be a useful test of Spooner's theory (and Phillips' critique) for the reader to put down this article and examine the Constitution to find these two provisions. No fair resorting to Madison's Notes to find them. (Those that remember the historical evidence are disqualified.) For Spooner would argue that, like the other three, these two provisions only sanction slavery if they are assumed to be about slaves based on recourse to extrinsic evidence.
Give up? Here is the allegedly "pro-slavery" [92] language: "Congress shall have Power ... to suppress Insurrections." [93] And "The United States shall guarantee to every State in this Union a Republican Form of Government; and shall protect each of them against Invasion; and...against domestic Violence." [94] Now here is Phillips' argument: "The ... articles relating to insurrection and domestic violence, perfectly innocent in themselves-yet being made with the fact directly in view that Slavery exists among us, do deliberately pledge the whole national force against the unhappy slave if he imitate our fathers and resist oppression…. [95] If we adopt the historical approach to interpret the three clauses discussed above, are we not also bound to reject what Phillips concedes to be the "perfectly innocent" interpretation of these clauses in favor of the pro-slavery interpretation? Which interpretation of the text is strained"?
Phillips also disputed Spooner's claim that slavery had not been expressly authorized in the Constitution with elaborate criticisms of Spooner's textual analysis of the Constitution, colonial charters, statutes, the Declaration of Independence, Articles of Confederation, state constitutions, etc. To be sure, some of Phillips' arguments are persuasive, [96] but Spooner's reply in Part 11 shows that many miss the mark. For example, to counter Spooner's interpretation of the terms "free persons" and "other persons" in Article 1, Section 2, Phillips cites numerous examples of where the word "free" or "freeman" had previously been used in other legal writings as the correlative of slave. [97] In Part 11, Spooner argues that, whenever this occurs, it is in juxtaposition, not with the words "other persons" as it is in Article 1, Section 2, but with the term "slave" or "negroes." [98] The presence of these words in each of Phillips' examples, Spooner argues, is needed to render the term "free" unambiguous. Standing alone, the words "other persons" is insufficient to do so and, therefore, we are obliged to reject an unjust interpretation of these ambiguous terms in favor of a meaning consistent with justice.
More fundamentally, Phillips hotly rejects Spooner's natural law approach in favor of a strongly majoritarian version of Austinian positivism? [99]
There can be no more self-evident proposition, than that, in every Government, the majority must rule, and their will be uniformly obeyed. Now, if the majority enact a wicked law, and the Judge refuses to enforce it, which is to yield, the Judge, or the majority? Of course, the first. On any other supposition, Government is impossible. [100]
While this is not the place to examine fully the merits of this claim, in Part 11 Spooner took issue with the assertion that either legislation or the Constitution itself necessarily reflects the will of the majority:
Only the male adults are allowed to vote either in the choice of delegates to form constitutions, or in the choice of legislators under the constitutions. These voters comprise not more than one fifth of the population. A bare majority of these voters, - that is, a little more than one tenth of the whole people, - choose the delegates and representatives. And then a bare majority of these delegates and representatives (which majority were chosen by, and, consequently, represent but little more than one twentieth of the whole people,) adopt the constitution, and enact the statutes. Thus the actual makers of constitutions and statutes cannot be said to be the representatives of but little more than one twentieth of the people whose rights are affected by their action. [101]
Moreover, in words reminiscent of modern Public Choice theory, Spooner notes that:
[b]ecause the representative is necessarily chosen for his opinions on one, or at most a few, important topics, when, in fact, he legislates on an hundred, or a thousand others, in regard to many, perhaps most, of which, he differs in opinion from those who actually voted for him. He can, therefore, with certainty, be Said to represent nobody but himself. [102]
Thus, for Spooner, the suggestion that representative government constituted rule by the majority was a mere fiction. In light of this, Spooner countered Phillips' objection to the practicality of judicial interpretation that strives to be consistent with natural justice, with a practical objection of his own:
If the principle is to be acted upon, that the majority have a right to rule arbitrarily, there is no legitimate way of carrying out that principle, but by requiring, either that a majority of the whole people, (or of the voters,) should vote in favor of every separate law, or by requiring the entire unanimity in the representative bodies, who actually represent a majority of the people." [103]
Of course, Spooner denied "that a majority, however large, have any right to rule so as to violate the natural rights of any single individual. It is as unjust for millions if men to murder, ravish, enslave, rob, or otherwise injure a single individual, as it is for another single individual to do it." [104]
Despite the occasional smugness of his tone towards Spooner, Phillips' position was not unmoved by the force of Spooner's arguments. As noted by Hans Baade, whereas in his previous pamphlet Phillips had relied
on the debates of the Philadelphia Convention as reported in Madison's Notes, Phillips now followed Spooner's lead in characterizing the Founding Fathers as mere clerks employed to draft the Constitution....
In a basic shift from the "subjective" originalist position underlying his "Pro-Slavery Compact" tract, Wendell Phillips now argues that the intent of those who had adopted the Constitution had to be ascertained not from convention reports but from contemporaneous expositions." [105]
In defense of this position, Phillips offered many learned authorities and passages from Supreme Court cases, but one stands out: Chief Justice Taney's opinion in Aldridge v. Williams" [106] decided the same year that Spooner's book was published.
In Williams, Taney rejects any reliance on "the construction placed upon [the statute in question] by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered." [107] While this statement supports Spooner's rejection of Phillips' reliance upon Madison's Notes, Phillips seizes upon Taney's further statement that "we must gather [the] intention [of the majority of both houses] from the language there used, comparing it, when any ambiguity exists, with the laws on the same subject, and looking, if necessary, to the public history of the times in which it was passed." [108] That Northern abolitionist Phillips would rely on the authority of Southerner Taney is not merely ironic. If Taney provides authority for an "objective" approach to original intent, Phillips returns the favor by providing Taney the evidence he uses in his most infamous opinion to establish that the intent, and therefore the Constitution itself, is pro-slavery." [109]
For despite Phillips effort to dispute Spooner on Spooner's terms, the principal theoretical reason for rejecting Spooner's approach Phillips shared with Chief Justice Taney in his opinion in Dred Scott v. Stanford [110]: Spooner's interpretation runs contrary to the intentions of the framers of both the Declaration of Independence and the Constitution. Referring to the Declaration's affirmation "that all men are created equal; that they are endowed by their Creator with certain inalienable rights, [111] Taney answered:
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration.... [112]
As for the Constitution, Taney interpreted its meaning in light of attitudes towards slaves held by members of the founding generation. "The duty of the court is, to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted." [113]
Thus, Taney asserted that "there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed," [114] notwithstanding the fact that the word "negro" does not appear in the Constitution. He asserts that "[o]ne of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper," [115] though, in the passage he is discussing, the Constitution refers to "persons" not slaves." He asserts that in "the other provision the States pledge themselves to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories,"' [116] though in this provision, the Constitution speaks not of slaves, but of "persons held to service." Taney never actually presents any evidence as to the meaning of these clauses, but rather assumes these clauses "directly and specifically"' [117] refer to slavery, probably because of the evidence he presents concerning the general attitudes towards and legal treatment of slaves by members of the founding generation.
Though Spooner was seeking the "original meaning" [118] of the Constitution, he did not think this meaning could be grounded on the original intent, either of the Constitution's framers or its ratifiers. One reason I have already mentioned, is his contention that such intentions were hopelessly conflicting and indeterminate. [119] "No two of the members of the convention would probably have agreed in their representations of what the constitution really was. No two of the people would have agreed in their understanding of the constitution when they adopted it." [120] But Spooner also rejected relying on original intentions either of the framers of the constitution or of the ratifiers, even were such intentions determinable. "It is not the intentions men actually had, but the intentions they constitutionally expressed; that make up the constitution." [121]
Spooner's reasons for rejecting the intentions of the Framers as a source of constitutional meaning - reason that are applicable both to Taney and Phillips - sound quite modern:
The intentions of the framers of the constitution...have nothing to do with fixing the legal meaning of the constitution. That convention were not delegated to adopt or establish a constitution; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived all its validity and obligation, as a frame of government, from its adoption by the people at large. [122]
Spooner rejected any reliance on Madison's then-recently-disclosed notes of the convention (or Elliot's Debates) where these notes reveal an intention that suborns the written constitution and natural justice. [123] Spooner refers to these as "meagre [sic] snatches of argument, intent or opinion, uttered by a few 'only of the members; jotted down by one of them, (Mr. Madison,) merely for his own convenience, or from the suggestions of his own mind; and only reported to us fifty years afterwards by a posthumous publication of his papers." [124] He then asks,
Did Mr. Madison, when he took his oath of office, as President of the United States, swear to support these scraps of debate, which he had filed away among his private papers? - Or did he swear to support that written instrument, which the people of the country had agreed to, and which was known to them, and to all the world, as the constitution of the United States? [125]
Assuming a majority of the convention really had intended to sanction slavery, Spooner rejects any suggestion that this intention would be binding on others. Were this the case:
Any forty or fifty men, like those who framed the constitution, may now secretly concoct another, that is honest in its terms, and yet in secret conclave confess to each other the criminal objects they intended to accomplish by it, if its honest character should enable them to secure for it the adoption of the people.-But if the people should adopt such a constitution, would they thereby adopt any of the criminal and secret purposes of its authors? Or if the guilty confessions of these conspirators should be revealed fifty years afterwards, would judicial tribunals look to them as giving the government any authority for violating the legal meaning of the words of such constitution, and for so construing them as to subserve the criminal and shameless purposes of its originators? [126]
Most thoughtful modem-day originalists will concede much of this when they are being careful. [127] Instead they assert that it is the intention of the ratifters that provides the basis of a proper interpretation [128] and, as Taney and Phillips argue, everyone in those days knew that the Constitution sanctioned slavery. Spooner rejects the suggestion that there was a consensus among the founding generation that the Constitution sanctioned slavery:
If the instrument had contained any tangible sanction of slavery, the people, in some parts of the country certainly, would sooner have had it burned by the hands of the common hangman, than they would have adopted it, and thus sold themselves as pimps to slavery, covered as they were with the scars they had received in fighting the battles of freedom. [129]
Assuming the framers of the Constitution intended to sanction slavery, Spooner offers this as the reason why they chose not to include any explicit reference to slavery. "The members of the convention knew that such was the feeling of a large portion of the people; and for that reason, if for no other, they dared insert in the instrument no legal sanction of slavery." [130]
Construing the Constitution like a contract means that, while the subjective agreement of all parties may trump any objective meaning, where there is a subjective disagreement, parties are entitled to rely on the objective meaning. [131] So
[i]f there were a single honest man in the nation, who assented, in good faith, to the honest and legal meaning of the constitution, it would be unjust and unlawful towards him to change the meaning of the instrument so as to sanction slavery, even though every other man in the nation should testify that, in agreeing to the constitution, he intended that slavery should be sanctioned. [132]
But what of Taney's argument that the slaveholders would never have consented to a constitution that did not sanction slavery [133] Such a hypothetical lack of consent does not move Spooner, because, by this argument slaveholders are presumed to have consented to this Constitution and yet nevertheless this Constitution did not sanction slavery. "The intentions of all the parties, slaves, slaveholders, and nonslaveholders, throughout the country, must be presumed to have been precisely alike, because, in theory, they all agreed to the same instrument." [134] Moreover, "when communities establish governments for the purpose of maintaining justice and right, the assent of all the thieves, robbers, pirates, and slaveholders, is as much presumed, as is the assent of the most honest portion of [the] community. [135] Thus, Spooner, concludes:
There would be just as much reason in saying that it cannot be supposed that thieves, robbers, pirates, or criminals of any kind, would consent to the establishment of governments that should have authority to suppress their business, as there is in saying that slaveholders cannot be supposed to consent to a government that should have power to suppress slaveholding. [136]
We may sum up Spooner's analysis of these three clauses as follows: even if we assume that the framers or ratifiers of the Constitution intended to reference slavery in these three passages, when the framers of the Constitution chose to speak euphemistically rather than making their intentions explicit, they simply failed - whether by intention or inadvertence - to effectively incorporate an authorization for slavery into the Constitution. These sections cannot, therefore, prevent other portions of the Constitution [137] - such as that providing for the writ of habeas corpus [138] - from being interpreted to render slavery unconstitutional. Even had everyone in the founding generation "known" that certain clauses were "intended" to sanction slavery, [139] the generally accepted meaning of the language chosen to carry out their intentions fell short of the mark. In this respect, Spooner's version of "original meaning" runs contrary to those modem originalists who base interpretation on original intent. [140] It views the framers as teachers who well-understood the scheme they adopted, rather than as wardens whose commands must be interpreted consistently with their subjective intentions." [141] Were evidence of history to overrule an innocent interpretation of the text, in Spooner's words, "it would follow that the constitution would, in reality, be made by the historians, and not by the people." [142]
Although the founding generation is today often condemned for its refusal to abolish slavery, were Spooner's interpretative method to have been adopted, slaveholders would have been the ones to condemn the framers for their failure of nerve. For they failed to legally sanction the crime they could not bring themselves to name.
[45] In Spooner's words, "no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals...." Id. at 15. Return
[46] Id. at 15-16. Return
[47] United States v. Fisher, 6 U.S. [2 Cranch] 358, 390 (1805). Return
[48] SPOONER, The Unconstitutionality
of Slavery, supra note 17, at 18-19 (quoting United States v.
Fisher) (emphasis added by Spooner). Despite the appeal to Spooner of Marshall's
formulation, near the end of his life, Spooner expressed, with his usual feistiness,
his loathing for Marshall as a judge:
John Marshall has the reputation of having been the greatest jurist the country
has ever had. And he unquestionably would have been a great jurist, if the two
fundamental propositions, on which all his legal, political, and constitutional
ideas were based had been true.
These two propositions were, first, that government has all power; and, secondly,
that the people have no rights.
There two propositions were, with him, cardinal principles, from which, I think,
he never departed.
For these reasons, he was the oracle of all the rapacious classes, in whose
interest the government was administered. And from them he got all his fame.
LYSANDER SPOONER, A Letter to Grover Cleveland 87 (1886). reprinted
in I WORKS, supra note 3. Return
[49] SPOONER, The Unconstitutionality
of Slavery, supra note 17, at 58-59. When he added the second part
of the work in 1947, Spooner identified, defended and applied the following
fourteen rules of interpretation:
(1) In the interpretation of the Constitution, as of all other laws and contracts.
the intention of the instrument must prevail;
(2) The intention of the Constitution must be collected from its words;
(3) We must, if possible, give a word the same meaning appropriate to the subject
of the instrument itself;
(4) Where technical words are used, a technical meaning is to be attributed
to them;
(5) The sense of every word, that is ambiguous in itself, must, if possible,
be determined by reference to the rest of the instrument;
(6) A contract must never, if it be possible to avoid it, be so construed, as
that any one of the parties to it, assuming him to understand his rights, and
to be of competent mental capacity to make obligatory contracts, may not reasonably
be presumed to have consented to it;
(7) Any unjust intention must be expressed with irresistible clearness to induce
a court to give a law an unjust meaning;
(8) Where the prevailing principles and provisions of a law are favorable to
justice, and general in their nature and terms, no unnecessary exception to
them. or to their operation, is to be allowed;
(9) Be guided, in doubtful cased, by the preamble;
(10) One part of the instrument must not be allowed to contradict another, unless
the language be so explicit as to make the contradiction inevitable;
(11) The Constitution ought never be construed to violate the law of nations,
if any other possible construction exists;
(12) All reasonable doubts must be decided in favor of liberty;
(13) The instrument must be so construed as to give no shelter or effect to
fraud;
(14) Never unnecessarily impute to an instrument any intention whatever which
it would be unnatural for either reasonable or honest men to entertain.
Id. at 157-205. Spooner's elaboration, defense, and application of these
rules are excerpted in Lysander Spooner, The Unconstitutionality of Slavery,
28 PAC. L.J. 1015 (1997) [hereinafter MCGEORGE EXCERPT]. Return
[50] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 17-18. Return
[51] Id. at 59. Return
[52] Id. at 59-60. Return
[53] U.S. CONST. art. I. § 2 (emphasis added). Return
[54] U.S. CONST. art. I. § 9 (emphasis added). Return
[55] U.S. CONST. art. IV. § 2 (emphasis added). Return
[56] SPOONER, The Unconstitutiotiality of Slavery, supra note 17, at 59. Return
[57] Id. at 226. Return
[58] Id.. Return
[59] Id. at 222; see id. at 220 ("[I]f the intentions could be assumed independently of the words, the words would be of no use, and the laws of course would not be written."). Return
[60] Id. at 223. Spooner
thought that general rules of interpretation were needed to choose among the
various meanings of language:
[T]he same words have such various and opposite meanings in common use, that
there would be no certainty as to the meaning of the laws themselves, unless
there were some rules for determining which one of a word's various meanings
was to be attached to it, when the word was found in a particular connection....
Their office is to determine the legal meaning of a word, or, rather, to select
the legal meaning of [a] word, out of all the various meanings which the
word bears in common use.
Id. at 162. But the rules of interpretation must themselves be selected
to enhance the fit between constitutional meaning and justice, for "unless the
meaning of words were judged of in this manner, words themselves could not be
used in writing laws and contracts, without being liable to be perverted to
subserve all manner of injustice....
Id. at 163. "[T]he rules are but a transcript of a common principle of momlity,
to wit, the principle which requires us to a good motives and good designs to
all the words and actions of our fellow-men, that can reasonably bear such a
construction." Id. at 164. Return
[61] U.S.CONST. preamble. Return
[62] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 188. I shall consider, below, Spooner's response to the objection that the slave holders cannot be presumed to have agreed to a constitution under which slavery was unconstitutional. See infra notes 128-31 and accompanying text. Return
[63] See generally SPOONER, MCGEORGE EXCERPT, supra note 49. Return
[64] SPOONER, The Unconstitutionalily of Slavery, supra note l7, at 44-54, 247-55, 265-70. Return
[65] Id. at 74. Return
[66] Id. at 45. Return
[67] Id. at 247. Return
[68] Spooner offers a lengthy explanation of why the term "free persons" was preferable to the term "citizen." See id. at 251-55 . Return
[69] Id. at 242-43. Return
[70] U.S. CONST. art. I, § 8, cl. 4. Return
[71] SPOONER, TheUnconstitutionality of Slavery. Supra note 17, at75. Indeed one authority which Spooner mentions in support of the distinction between "free persons" -meaning citizens and aliens is Madison's explanation of the Naturalization Clause in Federalist No. 42 in light of the privileges and immunities clause found in the Articles of Confederation. Madison "takes it for granted that the word 'free' was used in that political sense -that is, as distinguishing 'citizens' and the 'inhabitants' or 'people' proper, from aliens and persons not allowed the franchises enjoyed by the 'inhabitants' and 'people' of the States." Id. at 53. Spooner was arguing that the word "free persons" meant citizens as distinct from aliens, not because Madison intended this meaning, but because Madison's usage was evidence of this commonly accepted meaning and, therefore, of its legal meaning. Return
[72] Id. at 268. in
a footnote, Spooner adds the following observation:
I doubt if a single instance can be found, even in the statutes of the slaveholding
States themselves, in force in 1799, where the word free was used,
(as the slave argument claims it was used in the constitution,) to describe
either white persons, or the mass of the people other than slaves, (that
is, the white and free colored,) as distinguished from the slaves, unless
the statute also contained the word slave, or some other evidence, beside
the word free itself, that that was the sense in which the wordfree was
used. If there were no such statute, it proves that, by the usage of legislation,
in 1789, even in the slaveholding States themselves, the word free was
insufficient, of itself to imply slavery as its correlative.
Id. at 268 n.X. Return
[73] Id. at 81. Return
[74] Id. at 81-82. Return
[75] Spooner might also have offered the following innocent meaning of these terrns: "importation" refers to the activity of one person bringing another into the country, whereas migration refers to a person who smks on his or her own behest to enter the country. This would answer those who might think, contrary to Spooner. that the term "migration" refers not only to emigration but to immigration as well. In contrast, notice that the pro-slavery reading of this clause would apply to "migration" as well as "importation," though it is difficult to imagine how chattel slaves can possibly "migrate" or be taxed when they do. Return
[76] Id. at 82. Return
[77] Id. at 87. Return
[78] U.S. CONST. art. IV, § 2. Return
[79] See ABBOT EMERSON SMITH, COLONISTS IN BONDAGE: WHITE SERVITUDE AND CONVICT LABOR IN AMERICA, 1607-1776 336 (1947) ("If we exclude the Puritan migrations of the 1630's, it is safe to say that not less than one-half, nor more than two-thirds, of all white immigrants to the colonies were indentured servants or redemptioners or convicts. . . ."). Return
[80] ROBERT J. STEINFELD,
THE INVENTION OF FREE LABOR: EMPLOYMENT RELATION IN ENGLISH AND AMERICAN LAW
AND CULTURE 1350-1870 11 (1991).
Under colonial, and later state, servant statutes an elaborate set of provisions
safeguarded the master's right to the servant's labor during the term of service.
These statutes established procedures by which masters could recover runaway
servants; subjected runaways to additional servitude, in some cases to multiple
additional days of service for each day's absence; and authorized masters to
administer corporal punishment to disobedient servants.
Id. at 11. By the way, in Steinfeld's words, "[l]arge numbers of servants
continued to be imported as late as 1819 .... But in 1820, after nearly two
centuries, the mass importation of indentured servants abruptly came to a halt."
Id. (emphasis added). Return
[81] SPOONER, The Unconstitutionaliry of Slavery, supra note l7, at 70. Return
[82] Id. at 71. Return
[83] Id. Return
[84] Id. Return
[85] Id. at 72. Return
[86] A speech given by Frederick Douglass in Glasgow, Scotland in March of 1860 concisely tracks most of Spooner's major arguments, cites the same passage from Marshall's opinion in United States v. Fisher, and adopts Spooner's interpretive presumption. See Frederick Douglass, The Constitution of the United States. Is it ProSlavery or Anti-Slavery?, reprinted in PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 207 (1992) ("[Tlhe intentions of those who framed the Constitution, be they good or bad. for slavery or against slavery, are to be respected so far, and so far only, as will find those intentions plainly stated in the Constitution.... It was what they said that was adopted by the people, not what they were ashamed or afraid to say, and really omitted to say."). See also WILLIAM S. McFEELY, FREDERICK DOUGLASS 205 (1991) (Douglass' "arguments were those of Lysander Spooner and William Goodell as he had acknowledged at the time of his change of heart about the Constitution in 1851"). Return
[87] PHILLIPS, REVIEW OF SPOONER, supra note 12. In this volume Phillips pairs Spooner with William Goodell, author of another book arguing that slavery was unconstitutional, though Phillips does not particularly focus on Goodell's arguments. See WILLIAM GOODELL. AMERICAN CONSTITUTIONAL LAW AND BEARTNG UPON AMERICAN SLAVERY (1945). Goodell, by the way, relies on the Ninth Amendment (id. at 93) and other provisions of die Bill of Rights as embodying a "'spirit' of security to personal rights, and of consequent hostility to slavery." Id. at 92. Return
[88] PHILLIPS, REVIEW OF SPOONER, supra note 12, at 53-54. Return
[89] Id. at 54. Return
[90] Id. Regardless of the history, Phillips is clearly on weaker textual ground here since, unlike slavery, the Constitution explicitly refers to capital punishment. See, eg., U.S. CONST. amend. V ("nor shall any person be twice put in jeopardy of life or limb"). Return
[91] Id. at 26. Return
[92] Id. at 68. Return
[93] U.S. CONST. art. I, § 8 (emphasis added). Return
[94] U.S. CONST. art.IV, § 4(emphasis added). Return
[95] PHILLIPS, REVIEW OF SPOONER, supra note 12, at 26-27 (emphasis added). Return
[96] A comprehensive tally of all the philosophical, textual, and historical issues in dispute and which man got the better of the other in each would be an enormous undertaking that I shall not attempt here. Return
[97] See PHILLIPS, REVIEW OF SPOONER, supra note 12, at 42-43. Return
[98] See supra note 72 and accompanying text. Return
[99] PHILLIPS, REVIEW OF SPOONER, supra note 12, at 8 n.* (citing John Austin, Jurisprudence (1832)). Return
[100] Id. at 10. Return
[101] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 153. Spooner goes on to observe that, because only a bare majority is required for a quorum. in practice the opinions of only a fortieth of the people need be represented in statutory legislation. Id. Return
[102] Id. at 154. Return
[103] Id. at 154-55 n.*. Return
[104] Id. Return
[105] Baade, supra note 6, at 1049-50. Phillips now defended reliance on Madison's Notes as "fair and legitimate evidence of the sense in which the Constitution was accepted" by the state conventions. PHILLIPS, REVIEW OF SPOONER supra note 12, at 33. Return
[106] Aldridge v. Williams. 44 U.S. [3 How.] 9 (1945). Phillips also cites for authority, Chief Justice Marshall'sopinion in TheAntelope, 23 U.S. [10 Wheat.] 66 (1815), the case in which Marshall ordered the return to their foreign "owners" of at least some of the slaves captured by pirates who had been apprehended by a United States revenue cutter. The passage by Marshall, which Phillips cites (PHILLIPS, REVIEW OF SPOONER, supra note 12, at 23), reads, in part: "That it [the slave trade] is contrary to the law of nature, will scarcely be denied.... Whatever might be the answer of the moralist to this question, a jurist must seek its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent of the world, of which he considers himself a part." The Antelope, 23 U.S. at 66. In contrast, Spooner excoriates Phillips' teacher, Justice Story, for his opinion in Prigg v. Pennsylvania, 41 U.S. [16 Peters) 539 (1842), in which Story rejects all appeals to "uniform rules of interpretation" or "rules of interpretation of a general nature" to reach a pro-slavery outcome on historical grounds. See SPOONER, The Unconstitutionality of Slavery, supra note 17, at 282, Appendix A. Return
[107] Williams, 44 U.S. at 24. Return
[108] See PHILLIPS, REVIEW OF SPOONEP, supra note 12, at 30 (quoting from Taney's opinion in Aldridge v. Williams, 44 U.S. [3 How.) 9 (1845)) (emphasis added). Return
[109] See Baade, supra note 6, at 1051 (referring to "the embracement of Wendell Phillips's constitutional theory by a Southern-dominated Supreme Court"). Return
[110] Dred Scott v. Sandford, 60 U.S. 393 (1857). Return
[111] THE DECLARATION OF INDEPENDENCE para. * (U.S. 1776). Return
[112] Dred Scott, 60 U.S. at 410. Return
[113] Id. at 405 (emphasis added). Return
[114] Id. at 411. Return
[115] Id. Return
[116] Id. Return
[117] Id. Return
[118] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 218 ("It is the original meaning of the constitution itself that we are now seeking for...."). Return
[119] See supra note 56 and accompanying text. Return
[120] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 122. Return
[121] Id. at 226. Return
[122] Id. at 114. Return
[123] Id. at 117-18
n.*:
"Elliot's Debates," so often referred to, are, if possible, a more miserable
authority than Mr. Madison's notes. He seems to have picked up the most of them
from the newspapers of the day, in which they were reported by nobody now probably
knows whom.... [Spooner then quotes from prefaces to several volumes in which
the sources of information are described.] It is from such stuff as this, collected
and published thirty-five and forty years after the constitution was adopted-stuff
very suitable for constitutional dreams to be made of-that our courts and people
now make their constitutional law. in preference to adopting the law of the
constitution itself. In this way they manufacture law strong enough to bind
three millions of men in slavery. Return
[124] Id. at 117. Return
[125] Id. For what
it is worth, Madison, in response to a representative arguing against the constitutionality
of the first national bank, offered the following as guides to interpreting
the powers granted to the general government by the Constitution:
[1.] An interpretation that destroys the very characteristic of the Government,
cannot be just.
[2.] Were a meaning is clear, the consequences, whatever they may be, are to
be admitted; where doubtful, it is fairly triable by its consequences.
[3.] In controverted cases, the meaning of the parties to the instrument, if
to be collected by masonable evidence, is a proper guide.
[4.] Contemporary and concurrent expositions are a reasonable evidence of the
meaning of the parties.
[5.] In admitting or rejecting a constructive authority, not only the degree
of its incidentality to an express authority is to be regarded. but the degree
of its importance also; since on this will depend the probability or improbability
of its beifig left to construction.
1 THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES 1896 (1791).
Notice that Madison speaks, perhaps ambiguously. of the meaning, not
the intentions, of the parties to the instrument. Thus, "contempomry
and concurrent expositions" may be evidence only of how certain words or teffns
were commonly used, not whether they were intended to be used in some other
manner. But any such meaning must be squared with the overall scheme of government
established by other parts of the Constitution. For additional examples of interpretive
methods used by the founding generation, see H. Jefferson Powell, The Original
Understanding of Original Intent, 98 HARV. L. REV. 885 (1985); Baade, supra
note 6. Return
[126] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 118. Return
[127] See, eg., Richard
S. Kay, Adherence to The Original Intentions in Constitutional Adjudication:
Three Objections And Responses, 82 Nw. U. L. REV. 226, 247 (1988):
[T]he role of "The People" was played by the special ratifying conventions
in the individual states. The drafters at the Philadelphia Convention could
claim no such mandate from "the people." Some supporters of the Constitution
went so far as to disparage the importance of the Convention, except insofar
as it was able to place a proposal before the state conventions.
Id. Return
[128] See, e.g., id. ("The inquiry into original intent, therefore. should focus on the intentions of the various ratifying bodies who possessed the constituent authority."); see also Richard S. Kay, "Originalist" Values and Constitutional Interpretation, 19 HARV. J.L. & PUB. POL'Y 335, 338 (1996) ("The relevant actors were not the actual drafters of the language, but the members of the ratifying conventions that gave it the force of law."). Return
[129] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 119. Return
[130] Id.; see id. at 201 ("We have abundant evidence that this fraud was intended by some of the framers of the constitution. They knew that an instrument legalizing slavery could not gain the assent of the north. They therefore agreed upon an instrument honest in its terms, with the intent of misinterpreting it after it should be adopted. The fraud of the framers, however, does not of itself, implicate the people."). Return
[131] See Randy E.
Barnett, The Sound of Silence: Default Rules and Contractual Consent,
78 VA. L. REV. 821, 858-59 (1992) ("[I]n contract law, we protect a party's
reliance on objective appearances, unless it can be shown that the parties shared
a common subjective understanding of a terFn."). Cf E. ALLAN FARNSWORTH, CONTRACTs
§ 7.9, at p. 511 (2d ed. 1990):
The court does indeed carry out their intentions in those relatively rare cases
in which the parties attached the same meaning to the language in question.
But if the parties attached different meanings to that language, the court's
task is the more complex one of applying a standard of reasonableness to determine
which party's intention is to be carried out at the expense of the other's.
And if the parties attached no meaning to that language, its task is to find
by a standard of reasonableness a meaning that does not accord with any intention
at all.
Id. Return
[132] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 123. Return
[133] See, e.g., Dred Scott v. Sandford, 60 U.S. 393, 416 (1857): "[I]t cannot be believed that the large slave - holding States regarded [slaves] as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State." Of course, none of the states ratified the constitution, only the people of each state in convention, and therefore Spooner is more careful than Taney when he refers to the consent of slaveholders, rather than "slaveholding states." Moreover, Spooner also notes that slaveholders were themselves a minority among the people of so-called slaveholding states. See SPOONER, The Unconstitutionality of Slavery, supra note 17 at 125 . Return
[134] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 215. Return
[135] Id. at 186. Return
[136] Id. The passage
continues:
If this argument were good for anything, we should have to apply it to the state
constitutions, and construe them, if possible, so as to sanction all kinds of
crimes which men commit, on the ground that the criminals themselves could not
be supposed to have consented to any governments that did not sanction them.
Id. Return
[137] See id. at 270-77 (discussing the "power of the general government over slavery").. Return
[138] U.S. CONST. art. 1, § 9. Return
[139] In this regard, Spooner
observed:
Why ... do not men say distinctly, that the constitution did sanction slavery,
instead of saying that it intended to sanction it? We are not accustomed to
use the word "intention," when speaking of the other grants and sanctions of
the constitution. We do not say. for example, that the constitution intended
to authorize congress "to coin money," but that it did authorize them to coin
it.... The reason is obvious. If they were to say unequivocally that it did
sanction it, they would lay themselves under the necessity of pointing to the
words that sanction it; and they are aware that the words alone of the constitution
do not come up to that point.
SPOONER, The Unconstitutionality of Slavery, supra note 17, at 57. Return
[140] Richard Kay, for example,
distinguishes between "original understanding"-which corresponds to Spooner's
"original meaning" - and "original intentions" versions of originalism. Original
understanding "differs from the . . . 'original intentions' version by eschewing
reliance upon the supposed subjective intentions of the enactors of the Constitution."
Kay, "Originalist " Values and Constitutional Interpretation, supra note
129, at 337. Kay favors the latter when the two come in conflict:
[L]egitimacy concerns may oblige us to choose a constitutional meaning that
was intended by the enactors. even when that meaning was not inferable from
an examination of the text, either on its face or in the context of the time
of enactment."
Id. at 338. For Spooner, who grounds the legitimacy of the Constitution on the
natural rights that persons bring to the compact and on their consent, "legitimacy
concerns" cut in the other direction. Return
[141] See generally Randy E. Bamett, The Relevance of Framers' Intent, 19 HARV. J.L. PUB. POL'Y 403 (1996). Return
[142] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 284, Appendix A. Return