The Unconstitutionality of Slavery, by Lysander Spooner, 2d ed., New York: Burt Franklin, 1965, 289 pp., $16.50
Review of Lysander Spooner's Essay on the Unconstitutionality of Slavery, by Wendell Phillips, New York: Arno Press & The New York Times, 1969, 95 pp., $4.50
Historians will argue as to whether or not slavery was the main issue in the abortive revolution known as the Civil War, or the War Between the States, or the War of Rebellion, or the Late Unpleasantness. Nevertheless, slavery was an issue about which a lot of people were concerned.
Lysander Spooner opposed slavery and Wendell Phillips opposed slavery, but these two men who agreed that slavery was immoral differed in their opinions as to slavery's constitutionality and legality. Spooner believed that slavery was unconstitutional and should have been declared so, while Phillips thought that slavery was clearly constitutional and that the constitution should have been amended.
When Spooner issued a lengthy essay entitled The Unconstitutionality of Slavery in 1845, Phillips saw fit to review it in The Anti-Slavery Standard, though not getting around to it until 1847. Both works are currently available in book form and bear witness to the kind and quality of argument that existed during those troubled days when even people who thought slavery abhorrent couldn't always agree on why.
Spooner, a constitutional lawyer, was a theoretician; and Phillips, an abolitionist, was a man of action. Phillips saw Spooner's argument as a threat to men of action—"Our only object is to abolish Slavery, and not to correct the fundamental ideas which men hold as to law or Government; and hence, all we have to do with law, is to find out what it practically is, and then amend it if we can" (p. 7). While Spooner is painstakingly thorough in his examination of the issue at hand, Phillips reveals a sense of impatience, a need to dispense with Spooner's arguments so that "those Abolitionists who try to hide themselves behind him, and make use of his argument which he never intended, and probably would not sanction," can get back to the immediate task of ending slavery.
In The Unconstitutionality of Slavery Lysander Spooner attempted to show that slavery was never legal in the United States and that the Supreme Court had within its power at that very moment the means to declare all slaves free. Personally, Spooner thought slavery was wrong because it violated the most basic of all natural laws. He believed that all statutory law should proceed from natural law; otherwise, it is illegitimate and members of the judiciary have no obligation to uphold it. Despite Spooner's moral contentions (which he lays out clearly in the first chapter, "What is Law?"), he set out to make a legal argument that might convince others of the unconstitutionality of slavery whether or not they agreed with him morally.
Foreseeing the possible difficulties that could arise in a conflict between the laws of nature and the will of men, said Spooner, judges long ago devised a means of rationalizing any shortcomings in their behavior while simultaneously protecting themselves from political rebuke. They established certain legal rules of interpretation whereby any positive law violating natural rights would have to be stated with "irresistible clearness" if it were to be enforced by the courts. In other words, the judges would not go out of their way to interpret "legislative intention," and the obligation to make their case as clear and irrefutable as possible was placed squarely on the shoulders of those who insisted on going against nature; otherwise, the courts were bound to interpret such laws innocently and in favor of natural rights. To be sure, this did not make such laws any more moral, but it got the judges out of a practical dilemma.
Spooner's contention, then, was that if slavery was in fact legal (constitutional), it would be such positive law as could only be established through direct and specific intention and would therefore have to be expressed in our various constitutions with such "irresistible clearness" that the ordinary legal rules of interpretation could be observed. "It will probably appear from this examination that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law" (p. 20).
Thus begins the rigorous examination of the colonial charters in the light of English law; of colonial statutes pertaining to slavery which did not, according to Spooner, define slavery; of the Declaration of Independence, the state constitutions of 1789, the Articles of Confederation, the Constitution of the United States, and the state constitutions of 1845.
Wendell Phillips confined his review to a hard-hitting, point-by-point dismantling of Spooner's argument. He was at odds with virtually every point Spooner made and insisted that Spooner had stretched the role of the legal rules of interpretation beyond their proper bounds. "Surely, mankind cannot be presumed to have so universally mistaken what they were about, as to have uniformly set up Governments, that were not legal in their own sense of the term!" (p. 9)
For every legal authority that Spooner cited (though these were meant by Spooner only as buttresses rather than as proofs), Phillips came up with as many to oppose them. Where Spooner insisted that the terms free and freeman referred to citizens of a country with special privileges and franchises granted by their government, Phillips insisted that Spooner had overlooked the most common usage of the terms as correlatives of slavery. Where Spooner believed that judges should hold their seats and immediately declare slavery illegal and all slaves free, Phillips believed that judges should resign their seats rather than be party to immoral circumstances.
Phillips' strongest rebuttal is his challenge to Spooner's interpretation of the "three-fifths" clause of the Constitution. While Spooner argued that this clause does not mention slavery and could as easily refer to people who are merely foreigners, Phillips called forth the evidence of census records to show that, in fact, slaves were counted as three-fifths of a person and foreigners were not. Phillips' grasp of the semantics of this clause is much more realistic than Spooner's.
In some cases, Phillips seems to have ignored the fine distinctions drawn by Spooner, proceeding to criticize Spooner's arguments as though the distinctions had not been made. For example, Phillips never met head-on Spooner's assertion that slavery was never clearly defined in the law—that the law did not tell us who were slaves—and that many laws were so ambiguous as to be equally applicable to other groups, such as indentured servants.
The problem with this controversy is that there is no clear means of resolution. Both men ended up arguing at cross-purposes. Spooner's case for unconstitutionality is a good one, because the law was so poorly written. But one cannot ignore Phillips' plea for practicality—"Slavery is not abolished, although we have persuaded ourselves that it has no right to exist" (p. 3).
One can speculate on which man's means would have been more effectively directed toward the abolition of slavery. In retrospect, it is a moot point, since the issue was settled in a forcible confrontation (between the states, not between Spooner and Phillips). Nevertheless, the brilliance of Spooner and his interaction with Wendell Phillips, a leading abolitionist of the day, are worth noting for anyone interested in applying ideas to pervasive social problems.
Susan Love Brown formerly edited World Research Ink and has published in REASON and Essence.