The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On this date in 1808, Lysander Spooner was born in Athol, Masssachusetts. You can celebrate by reading the Spooner symposium on "Liberty Matters," for which I was pleased to write the lead essay, The Significance of Lysander Spooner. Here is how my essay opens and closes:
…While most libertarians know Spooner largely from No Treason, in his own time he was better known for his antislavery constitutionalism. In 1845 Spooner produced the first edition of The Unconstitutionality of Slavery, which [historian] Lewis Perry described as "influential" and "the most famous antislavery analysis of the Constitution." Perry situates Spooner outside some of the principal fault lines of abolitionism, but still respected for his legal acumen by all abolitionists regardless of their camp. Unlike the Garrisonians, he was a deist rather than a Christian; and whereas the Garrisonians believed the Constitution to be a "covenant with death and an agreement with hell" because it sanctioned slavery, Spooner believed slavery to be unconstitutional. Unlike the political abolitionists, however, he privately disclaimed any interest in politics, including the antislavery Liberty Party. As Perry described it, Spooner "was a maverick abolitionist who belonged to none of the familiar factions in the movement."
Spooner was "the leading authority for the view that slavery was illegal under the Constitution, and he was greatly respected by other abolitionists." After Spooner, more abolitionists came to claim that slavery was illegal even in the original slave states. Eventually, even Garrison conceded that a man could be for the Constitution and yet not be pro-slavery "if he interpreted it as an anti-slavery instrument…."
Spooner's principal argument was that the "original meaning of the constitution itself" should not be overridden by the unexpressed intentions of those who wrote it or by subsequent decisions of the courts. The "original meaning" is "the meaning which the courts were bound to put upon it from the beginning; not the meaning they actually have put upon it. We wish to determine whether the meaning which they have hitherto put upon it be correct."
Spooner maintained that the "constitution, of itself, independently of the actual intentions of the people, expresses some certain fixed, definite, and legal intentions; else the people themselves would express no intentions by agreeing to it. The instrument would, in fact, contain nothing that the people could agree to." In short, "[a]greeing to an instrument that had no meaning of its own, would only be agreeing to nothing."
Today this stance is known as "original public meaning" originalism and is the dominant mode of originalist interpretation. As early as the 1980s Supreme Court Justice Antonin Scalia urged originalists to abandon their quest for the "intentions of the framers" and seek instead the meaning that the text of the Constitution would have had to a member of the general public at the time the Constitution was ratified. The only intentions that matter are the ones that were expressed by the language of the Constitution. Or, as Spooner put it, it "is not the intentions men actually had, but the intentions they constitutionally expressed, that make up the constitution."Indeed, "if the intentions could be assumed independently of the words, the words would be of no use, and the laws of course would not be written."
I go on to note that "I may be the only person in the United States who became an originalist as a result of reading The Unconstitutionality of Slavery." Here is how it closes:
Lysander Spooner's approach to constitutional interpretation, construction, and legitimacy is as fresh today as it was in 1845. Indeed, it is more sophisticated and persuasive than the theorizing of most contemporary legal academics. I know it changed my views on the Constitution in a fundamental way. Not bad for a self-taught young man from Athol.