from Was Slavery Constitutional Before the Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation, by Randy E. Barnett.
INTRODUCTION
In 1843, radical abolitionist William Lloyd Garrison called the Constitution of the United States, "a covenant with death and an agreement with hell."[1] Why? Because it sanctioned slavery, one of the greatest crimes that one person can commit against another. Slavery was thought by abolitionists to be a violation of the natural rights of man so fundamental that, as Lincoln once remarked: "If slavery were not wrong, nothing is wrong. [2] Yet the original U.S. Constitution was widely thought to have sanctioned this crime. Even today, many still believe that, until the ratification of the Thirteenth Amendment prohibiting involuntary servitude, slavery previously had been constitutional, and for this reason, the original Constitution was deeply flawed.
But in 1845 one man disagreed with the conventional wisdom. That man insisted that slavery was not only a moral abomination; it was also unconstitutional. His name was Lysander Spooner and he defended this position in a book, entitled The Unconstitutionality of Slavery. [3] While rejecting his conclusion, Garrison wrote of Spooner's argument: "We admit Mr. Spooner's reasoning to be ingenious - perhaps, as an effort in logic, unanswerable." [4]
Historians of abolitionism know Spooner's name, [5] but lawyers, law professors [6] and their students generally do not. This is a pity. For Lysander Spooner deserves a place of honor among American lawyers, both for the principles for which he stood against the crowd and for the brilliance with which he defended those principles. In this Essay, though I will be unable to do his analysis complete justice, I want to describe the method of constitutional interpretation that led Spooner to his conclusion about slavery. In many ways, Spooner's interpretive approach has a very modem ring. In important respects, however, his approach is preferable to those commonly used today and worthy of study for this reason alone.
But before I present Spooner's views, I want to tell you something about the life of this remarkable individual.
[1] Resolution adopted by the Antislavery Society, Jan. 27, 1843 ("The compact which exists between the North and the South is a covenant with death and an agreement with hell."). Return
[2] Letter by Abraham Lincoln to A.G. Hodges, Apr. 4, 1864. Return
[3] LYSANDER SPOONER, The Unconstitutionality of Slavery (I 845). reprinted in 4 THE COLLECTED WORKS OF LYSANDER SPOONER (Charles Shively ed., 1971) [hereinafter WORKS]. Return
[4] LYSANDER SPOONER, The Unconstitutionality of Slavery (1860),4 WORKS, supra note 3 (This quote is taken from an unnumbered page). Return
[5] See, eg., ROBERT COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 154-58 (1975) (discussing Spooner's views on the unconstitutionality of slavery). Return
[6] A Westlaw search (Lysander +2 Spooner) conducted on March 7, 1997 turned up 37 articles by 32 authors referring to Spooner's writings on a number of subjects, some by law professors and some student notes. Most consist of no more than a sentence or two. Perhaps the most extensive discussion of Spooner's views on interpretation is contained in Hans W. Baade, "Original Intent" in Historical Perspective: Some Critical Glosses, 69 TEX. L. REV. 100 1, 1046-51 (199 1). Return