Clarence Thomas' Favorite Anarchist
The radical anti-statism of Lysander Spooner
Lysander Spooner: American Anarchist, by Steve J. Shone, Lexington Books, 138 pages, $55
In his concurring opinion in the landmark gun rights case McDonald v. Chicago, Supreme Court Justice Clarence Thomas offered a sweeping account of how the anti-slavery movement laid the foundations for the 14th Amendment, which declares, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." As Thomas explained, the authors and ratifiers of the 14th Amendment wanted the recently freed slaves to enjoy all of the rights they had long been denied, including the rights protected by the Second Amendment. The evidence he cited included the writings of the Massachusetts abolitionist Lysander Spooner (1808–1887), who argued that among its many crimes, slavery violated the "natural right of all men 'to keep and bear arms' for their personal defence."
It was a rare high-profile acknowledgment of Spooner. Although mostly forgotten today, he was a key figure in the abolitionist movement and one of the most innovative legal and political thinkers of the 19th century. At a time when abolitionists such as William Lloyd Garrison denounced the Constitution as a pro-slavery "covenant with death and an agreement with hell," Spooner responded with a powerful book titled The Unconstitutionality of Slavery (1845), making him a hero to the anti-slavery Liberty Party and a major influence on the abolitionist leader Frederick Douglass. A champion of property rights and free trade, Spooner also argued that banking should be completely unregulated and that intellectual property could be held "in perpetuity." An individualist anarchist and tireless foe of government overreach, Spooner published a brilliant defense of jury nullification, argued that victimless crime laws should be taken off the books, and eventually held that the Constitution itself "has no authority" over anyone.
"At first glance," Winona State University political scientist Steve J. Shone writes in his short and illuminating new book Lysander Spooner: American Anarchist, "Spooner looks to be inconsistent, to agree with thinkers of both the left and right, or even to defy categorization." Yet as Shone argues, that's because Spooner exemplified a uniquely American form of anti-statism, one that saw the free market as a check on the power of big business and considered government to be an unnecessary evil. Using today's political labels, Shone calls Spooner "partly a leftist, and partly a libertarian."
Born in Athol, Massachusetts, on January 19, 1808, Spooner launched the first of his many campaigns against the government in 1835, when, in open violation of Massachusetts law, he set up shop as a lawyer without first completing the five-year apprenticeship required for those without a college degree. Observing that those who did have a degree were only required to apprentice for three years, Spooner denounced the law in the pages of the Worchester Republican for discriminating against the poor (who could not always afford college) while helping the legal establishment "keep up prices, and shut out competitors." The legislature agreed and changed the law in 1836.
Spooner then set his sights on the U.S. Postal Service, which enjoyed—as it still does—a government-enforced monopoly over the delivery of first-class mail. To demonstrate the superiority of the free market, Spooner founded the American Letter Mail Company in 1844 and began illegally competing with the Postal Service on select routes. Once again, Spooner published a spirited legal defense of his actions. And while he enjoyed a brief victory as an entrepreneur by providing a cheaper, more reliable service than the government did, the ensuing legal battle forced him out of business.
By then, like most Americans, Spooner was increasingly focused on the impending national crisis over slavery. With the financial support of the New York abolitionist and philanthropist Gerrit Smith, Spooner joined the battle in 1845 with The Unconstitutionality of Slavery, a masterful attack on the legality of the peculiar institution.
Unlike the slaveholders and the Garrisonian abolitionists, who both saw the Constitution as permitting human bondage, Spooner held that the document in fact forbade slavery and empowered the federal government to wipe it out. Slavery, he argued, violated every tenet of "Natural Law," and could therefore only be justified by positive, or man-made, legal strictures. Yet in order for such laws to possess any validity, they would have to be "clear, definite, distinct, express, explicit, unequivocal, necessary and peremptory," leaving no doubt whatsoever about their pro-slavery agenda. After all, the stated purpose of the Constitution was to "secure the Blessings of Liberty." If the document were to permit slavery—the most extreme violation of liberty short of murder—it had to be absolutely clear about it. Yet just look at the Constitution, Spooner instructed, where "not even the name of the thing, alleged to be sanctioned, is given."
Take the infamous Three-Fifths Clause (Article I, Section 2), which states that for the purposes of taxation and political representation, state populations shall be counted "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." What to make of these "other persons"?
The Three-Fifths Clause has long been understood as an implicit acknowledgment of slavery. James Madison's published notes on the proceedings of the 1787 Constitutional Convention make it clear that the subject of slavery dominated many of the debates that summer in Philadelphia. "The great division of interests," Madison wrote, "did not lie between the large & small States; It lay between the Northern & Southern." Terms such as "other persons" were introduced to alleviate this division. As convention delegate Luther Martin later put it, the Framers "anxiously sought to avoid the admission of expressions which might be odious to the ears of Americans."
Yet for Spooner, such secret intentions had no bearing on the Constitution's text. "This is the true test for determining whether the constitution does, or does not, sanction slavery," he wrote. "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."
Among those who adopted Spooner's argument was Frederick Douglass, the escaped former slave who would later become the most influential black leader of the post–Civil War era. A one-time protegé of William Lloyd Garrison, Douglass had previously damned the Constitution as an "agreement with hell," but in an 1851 editorial he said "a careful study of the writings of Lysander Spooner" prompted him to change his mind. "Take the Constitution according to its plain reading," Douglass told the Rochester Ladies Anti-Slavery Society on July 5, 1852. "I defy the presentation of a single pro-slavery clause in it." In fact, Douglass told the crowd, "Interpreted as it ought to be interpreted, the Constitution is a glorious liberty document."
While Douglass barnstormed the North on behalf of that liberty document, Spooner was busy contemplating a new front in the battle for individual rights: trial by jury. In 1850 Spooner published A Defence for Fugitive Slaves, Against the Acts of Congress on February 12, 1793 and September 18, 1850, where he argued that juries "are judges of the law, as well as the fact" and are therefore justified in nullifying federal fugitive slave laws. "No man can be punished for resisting the execution of any law," Spooner wrote, "unless the law be so clearly constitutional, as that a jury, taken promiscuously from the mass of the people, will all agree that it is constitutional." Today we call this radical approach "jury nullification."
Two years later, in Trial by Jury, Spooner developed his argument in full, expertly tracing the right of jury nullification back to the Magna Carta. "It is indispensable that the people, or 'the country,' judge of and determine their own liberties against the government," he wrote. "How is it possible that juries can do anything to protect the liberties of the people against the government; if they are not allowed to determine what those liberties are?" According to Spooner, it was essential to distinguish between trial by jury, which meant trial by the people, chosen by lot, and trial by government, which was an illegal usurpation of the people's power. "If the government may decide who may, and who may not, be jurors," he wrote, "it will of course select only its partisans, and those friendly to its measures." Furthermore, he said, if the government had its way, it "may also question each person drawn as a juror, as to his sentiments in regard to the particular law involved in each trial…and exclude him if he be found unfavorable to the maintenance of such a law."
Of course, that's exactly what happens today when potential jurors who oppose the death penalty are prevented from serving on death penalty cases or when those who oppose drug prohibition are excluded from drug cases, thereby stacking the jury in the government's favor. As Spooner presciently observed, "if the government may dictate to the jury what laws they are to enforce, it is no longer a 'trial by the country,' but a trial by the government."
Shone makes a good case for the contemporary relevance of this issue, arguing that Spooner's arguments "give us clear, rational reasons for having nullification," unlike "the piecemeal, haphazard, and contradictory precedents and constitutional sources" typically advanced by judges and lawyers who oppose nullification. It would be a welcome development indeed for Spooner's views on jury nullification to enjoy a revival.
The end of the Civil War inspired the final phase of Spooner's radicalism. Like most abolitionists, Spooner believed that the Civil War was justifiable only as a struggle to abolish slavery, not as a war to preserve the union. For Frederick Douglass, this position translated into the slogan, "No war but an Abolition war; no peace but an Abolition peace." As the war came to a close in 1865, Douglass began the tireless work of securing that "Abolition peace." This meant explaining to lawmakers, voters, journalists, and anyone else who would listen why "no class of people could live and flourish in this country" without "the ballot-box, the jury-box, and the cartridge-box." Blacks required the same right to life, liberty, and property as whites, Douglass declared. Nothing less would do.
Spooner took a different line. "The number of slaves, instead of having been diminished by the war, has been greatly increased," he wrote in 1867. "For a man, thus subjected to a government that he does not want, is a slave. And there is no difference, in principle—but only in degree—between political and chattel slavery." Three years later, in No Treason: The Constitution of No Authority, Spooner persuasively argued that "the Constitution is no contract; that it binds nobody, and never did bind anybody; and that all those who pretend to act by its authority, are really acting without any legitimate authority at all."
So what happened to Spooner the constitutionalist? Georgetown law professor Randy Barnett, who dedicated his 2004 book Restoring the Lost Constitution to Spooner (and James Madison), observed that "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."
The contrast with Frederick Douglass is telling. Both men despised slavery; in fact, they were both loosely associated with the radical abolitionist John Brown, who attempted to seize the federal arsenal at Harper's Ferry, Virginia, in the hope of sparking an armed slave rebellion. Spooner even went so far as to mastermind a plan to kidnap Virginia Gov. Henry Wise and hold him hostage in exchange for Brown, although nothing ever came of it.
Yet Spooner was first and foremost a political theorist. In the secluded world of his desk and his papers he was free to extend his powerful arguments as far as they would go. Douglass enjoyed no such luxury. He was a former slave for whom the political was deeply personal, desperately working to secure the liberation of his people and then preserve their rights in the face of government hostility. Douglass still needed the anti-slavery Constitution; Spooner was apparently more interested in the pursuit of intellectual purity.
In the end, Spooner reveals both the benefits and the costs of unbending radicalism. As a principled abolitionist, he crafted compelling arguments that helped bring about the end of slavery. Yet at precisely the moment when the "Abolition peace" was descending into new forms of state-sanctioned violence against black people, Spooner made a ridiculous comparison between the former Confederates and their former slaves, arguing that both were now equally the property of the federal government.
Douglass managed to balance his principles and his politics. As the Bancroft Prize–winning historian David W. Blight observed, Douglass "never relinquished his commitment to laissez-faire individualism" during the Reconstruction era. If Lysander Spooner had tried to strike a similar balance, we might today be quoting from what could have been his greatest work, an attack on the South's incipient Jim Crow regime.
Damon W. Root (droot@reason.com) is an associate editor at reason.
