capitalism

Spooner, Lysander (1808–1887) 489
Unfortunately, this time he was up against a more intransigent
foe. Although Spooner’s mail company was successful
commercially, 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 turned
his attention to the issue of slavery. With financial assistance
from wealthy New York philanthropist and abolitionist
Gerrit Smith, Spooner produced the first volume of his book
The Unconstitutionality of Slavery in 1845. In this fascinating
work, Spooner argued that, because the Constitution did
not receive the express consent of those on whom it was
imposed, it can only be based on presumed or “theoretical”
consent. Because no one can be presumed to have consented
to a violation of their natural rights, the Constitution cannot
legitimately be interpreted as having this effect. From this
conclusion he derived the following interpretive principle:
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.
In short, “all language must be construed ‘strictly’ in
favor of natural right.” By this standard, he contended, the
oblique references in the Constitution to slavery were not
explicit enough to sanction this practice if there existed an
innocent meaning to these passages at the time of the
founding. The bulk of his essay is devoted to a search,
sometimes strained but always clever and interesting, for
that innocent original meaning.
To be sure, Spooner’s arguments drew criticism, especially
from abolitionist Wendell Phillips, to which in 1847
he responded in a second, entirely new volume of the book
that was appended to the first. The entire work runs nearly
300 pages. Together they persuaded Frederick Douglass to
abandon his Garrisonian opposition to the Constitution as
“a covenant with death and an agreement with hell” and
embrace Spooner’s abolitionist reading.
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 he
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 on,
although Spooner’s associates had gone as 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
another book, Trial by Jury, 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.
Despite its having resulted in the abolition of slavery,
the Civil War and its forcible suppression of the South
seems to have greatly radicalized Spooner. Whereas his earlier
works on the unconstitutionality of the postal monopoly
and of slavery implicitly assumed the legitimacy of the
Constitution, or appeared to, after the war Spooner explicitly
rejected the Constitution in what is today probably
regarded as his best and most libertarian essay, No Treason:
The Constitution of No Authority (1870). He began this
monograph with these words:
The Constitution has no inherent authority or obligation. It
has no authority or obligation at all, unless as a contract
between man and man. And it does not so much as even
purport to be a contract between persons now existing. It
purports, at most, to be only a contract between persons
living eighty years ago. ...Furthermore, we know, historically,
that only a small portion even of the people then
existing were consulted on the subject, or asked, or permitted
to express either their consent or dissent in any formal
manner. Those persons, if any, who did give their consent
formally, are all dead. ...And the Constitution, so far as it
was their contract, died with them.
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,
although never completed, book defending intellectual
property and an essay titled “Vices Are Not Crimes.” His
reputation as an individualist anarchist and his opposition
to all forms of oppression and injustice have made him a
hero to all libertarians. 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.”