Lysander Spooner’s Originalism:

Readers of this blog know I have a thing for Lysander Spooner. This traces back to my reading No Treason: The Constitution of No Authority while an undergraduate at Northwestern. Much later as a law professor, I became acquainted with his other works. Indeed, it was his book, The Unconstitutionality of Slavery, that started my movement towards originalism. This movement eventually culminated in Restoring the Lost Constitution: The Presumption of Liberty, which I dedicated to James Madison and Lysander Spooner. Now Helen Knowles, a political science professor at SUNY Oswego and an emerging Spooner scholar, has produced a new work on Spooner’s debate with Wendell Phillips over the meaning of the Constitution. Her paper Securing the ‘Blessings of Liberty’ for All: Lysander Spooner’s Originalism can be downloaded from SSRN. Here is the abstract:

On January 1, 1808, legislation made it illegal to import slaves into the United States; eighteen days later, in Athol, Massachusetts, Lysander Spooner was born. In terms of their influence on the abolition of slavery, only the first of these events has gained widespread recognition. The importance of Spooner’s reading of the U.S. Constitution as a document that did not sanction slavery has been overlooked; his abolitionist work continues to be disparaged as the incoherent ramblings of an unserious polemicist. As this essay demonstrates, this conclusion about Spooner’s mid-nineteenth century work, The Unconstitutionality of Slavery, is unfortunate, because his observations about the relationship between law and individual liberty are timeless.

Drawing on his writings (including a previously unpublished manuscript) and voluminous correspondence, with supporting material from abolitionist newspapers and periodicals, I focus on Spooner’s contribution to a mid-1840s debate about constitutional interpretation. Spooner’s natural-rights based reading of the Constitution’s original meaning never matched the popularity of fellow abolitionist Wendell Phillips’s emphasis on the Framers’ original pro-slavery intentions. Phillips won the day with conclusions that seemed to vindicate the Garrisonian condemnation of the Constitution as a covenant with death, and an agreement with hell. However, Phillips’s conclusions about the law were underpinned by a misleading emphasis on political history. They could not match the fiercely logical, and legal emphasis of Spooner’s conclusions. In this respect, only Spooner offered an approach faithful to the Constitution’s guarantee to protect the Blessings of Liberty.

I am now in the middle of writing a new book on the original meaning of the 9th & 14th Amendments, and the proper role of the courts in using these Amendments to protect liberty. As part of my research on the 14th Amendment, I have been reading other abolitionist constitutional theorists including William Goodell, Theodore Dwight Weld, James Birney, Joel Tiffany, and Frederick Douglass. All but Douglass were lawyers. I am finding that Spooner was influential on them all and that, taken as a whole, their works are both more persuasive and sophisticated than they are typically credited. Indeed, I find them more careful and powerfully reasoned than most of today’s constitutional analysis. Not only that, but there is a direct connection–via John Bingham–between the text of the Fourteenth Amendment and these abolitionist writers’ arguments concerning (a) U.S. citizenship, (b) the Privileges and Immunities Clause of Article IV, (c) the Due Process Clause of the Fifth Amendment, and (d) the duty of protection that every government owes those from whom it demands obedience. These four lines of argument led to the four working parts of Section 1 of the Fourteenth Amendment, and helps explain their original public meaning. This connection was first described by Jacobus tenBroek in his masterly little book, Equal Under Law, which regrettably is out of print.