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from Was Slavery Constitutional Before the Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation, by Randy E. Barnett. Conclusion Lysander Spooner's book, The Unconstitutionality of Slavery, represents, perhaps, the most extensive effort to interpret the United States Constitution in light of the natural rights that were expressly recognized in the Declaration of Independence and which provided the background for the written Constitution. Of greatest interest is the sophistication and scope of this approach. Spooner is not content simply to condemn as unenforceable provisions of the Constitution or acts of legislation that he thinks violate natural rights. That part of his analysis consumes a mere twenty pages out of nearly three hundred. In addition, he adopts a presumption in favor of reading the words of a constitution in a light most favorable to justice as defined by natural rights, and then takes on the burden of finding such a meaning. To find a defensible meaning of the words used in the Constitution that is both consistent with legal usage and inconsistent with injustice, Spooner examines other provisions of the Constitution, and how the disputed terms were used in colonial charters, [143] Colonial statutes, [144] the Declaration of Independence , [145] State constitutions in 1789, [146] and the Articles of Confederation. [147] Reading all three hundred pages, one is struck by the herculean nature of Spooner's endeavor-indeed by its similarity to what Ronald Dworkin argues that Hercules, Dworkin's hypothetical judge, ought to do: construct a set of principles of justice that both explain and justify the constitutional text at hand in such a way as to render it consistent with all other texts recognized as authoritative within this legal tradition. [148] Where the text and other authoritative materials provide competing meanings, Hercules attempts to make the Constitution, in Dworkin's words, "the best it can be." [149] Here's how Spooner expresses this Dworkinian point (in words that also echo Dworkin's distinction between principle and policy): [150] "When the intentions of statutes and constitutions are not clearly expressed in the instruments themselves, the law always presumes them. And it presumes the most just and beneficial intentions, which the words of the instruments, taken as a whole, can fairly be made to express, or imply." [151] Moreover, like Hercules," [152] Spooner views himself as constrained by the very texts and authorities he is attempting to interpret: "Not that, in interpreting written laws, the plain and universal principles of philology are to be violated, for the sake of making the laws conform to justice; for that would be equivalent to abolishing all written laws, and abolishing the use of words as a means of describing laws." [153] Spooner allows for, what Dworkin has usefully called "embedded mistakes." [154] An embedded mistake is statute or constitutional provision whose meaning is unjust but which meaning and specific authority cannot be denied. Yet, though such a mistake may still have authority, it does not provide the basis, or what Dworkin refers to as its "gravitational force," [155] for interpreting by extension other provisions in an unjust manner. Despite the resemblance between Spooner's and Hercules' interpretive method, Spooner faces a less herculean a task than does Dworkin's Hercules. For Spooner did not have to construct on his own a political theory that did justice to the legal materials he sought to interpret. Instead, he could start with the fundamental assumptions about natural rights and justice that he shared with those who wrote and ratified the Constitution - including many of those who held slaves or defended slavery - and which is reflected in their handiwork here and elsewhere. Thus it should be no great surprise to find a constitutional meaning that is consistent both with a particular conception of natural rights and with other authoritative texts, when the Constitution and these other texts were all authored by persons who shared the same commitment to natural rights and justice. Assuming one agreed that Spooner has succeeded in his quest for a reasonable meaning that is consistent with both his and the founding generation's conception of natural justice, there remains the question of whether their conception of justice is correct. Perhaps it is asking too much of a self-educated lawyer from Worcester to provide a complete justification for this then-widely accepted conception of natural rights. Nevertheless, what justification he does offer, while rooted in the classical natural rights tradition, has a surprisingly modem flavor. The more classical part of Spooner's argument might today be termed prudential: the recognition and respect for a particular set of natural rights are necessary conditions of social peace. [156] Other parts of his argument, particularly his argument for why government has an obligation to respect these prudential norms, resembles the approach known today as "rational choice. [157] Spooner argues that, if government is justified at all, [158] then it can only be on the basis of unanimous consent. But, as unanimous consent was not in fact obtained, then it must be presumed. And the only intention that can be presumed is that to which all honest persons would consent. And no honest person would consent to authorize a government to violate the very [159] Though Spooner does not maintain it to be impossible for the people to have made a "law" explicitly purporting to alienate a portion of their liberty (as defined by natural rights), [160] it cannot simply be assumed that they have done so in the absence of a clear and unambiguous expression of this intent. Thus, hypothetical consent is asked to do the work that actual consent cannot in justifying the authority exercised in the name of the Constitution, [161] and it does so by presuming a meaning to which all would agree in the absence of clear evidence that would rebut this presumption. Spooner uses much the same approach to justify the method of interpretation he employs:
Does Spooner's endeavor succeed or is it merely an interesting failure? Since this is a question that can only be answered by assessing all the analysis and evidence Spooner presents, I ask you not to reach your own opinion on the basis of my brief and necessarily incomplete summary, but to read Spooner for yourself [163] For what it is worth, having read the entire work, my own assessment is that it offers an interpretation of the Constitution that is superior to the rival one presented, for example, by Justice Taney in Dred Scott. And, while Wendell Phillips mounted a formidable challenge and exposed some genuine errors of Spooner, for reasons I have given above, [164] cannot agree with Robert Cover's entirely unsupported claim that Phillips' response "destroyed Spooner's position." [165] Nor can I share David Richards' characterization of Spooner's interpretation of the allegedly pro-slavery provisions of the Constitution, amidst an otherwise favorable treatment, as "textually strained." [166] Bear in mind that, if Spooner did not succeed, then perhaps Dred Scott was rightly decided after all, as were Prigg and The Antelope. Instead, I would suggest that, if Spooner failed, it was at a more fundamental level than the specific interpretive issue of whether or not the original Constitution authorized slavery. For if Spooner failed, it was in failing to offer a theory by which the Constitution can be interpreted so as to make laws enacted pursuant to its authority legitimate and therefore binding in conscience on the citizenry. Spooner's later, more radical, writings reflect his own rejection of the Constitution's authority, an authority he had assumed, perhaps arguendo, throughout 7he Unconstitutionality of Slavery. Those who wish today to contend that the Constitution has authority to bind the citizenry in conscience should hope that Spooner's interpretive method, if not its specific application to slavery, succeeded. [143] See id. at 21-31. Return [144] See id. at 32-36. Return [145] See id. at 36-39. Return [146] See id. at 39-51. Return [147] See id. at 51-54. Return [148] See RONALD DWORKIN, TAKING RIGHT'S SERIOUSLY 105-30 (1977); RONALD DWORKIN, LAW'S EMPIRE 239-54 (1986). Return [149] DWORKIN, LAW'S EMPIRE, supra note 149, at 379. Judges who accept the interpretive ideal of integrity decide hard cases by trying to find, in some coherent set of principles about people's rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community. They try to make that complex structure and record the best these can be. Return [150] See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 149, at 90 ("Arguments of principle are arguments intended to establish an individual right; arguments of policy are arguments intended to establish a collective goal."). Return [151] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 157 (last emphasis added). Return [152] See, e.g., DWORKIN, LAW'S EMPIRE. supra note 149, at 380 ("[Hercules']convictions about justice or wise policy are constrained by his overall interpretive judgment. not only by the text of the statute but also by a variety of considerations of fairness and integrity."). Return [153] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 210. Return [154] See DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 149, at 121. Return [155] Id. ("[E]mbedded mistakes are those whose specific authority is fixed so that survives its loss of gravi ional force...."). . Return [156] See supra note 25 and accompanying text. For an excellent account of classical natural rights theories, see MICHAEL P. ZUCKERT, NATURAL RIGHTS AND THE NEW REPUBLICANISM (1994). Return [157] See, eg.,
DAVID GAUTHIER, MORALS By AGREEMENT 9 (1986): [158] After the Civil War, Spooner came to reject the legitimacy of the Constitution in his famous essay, No Treason, No. VI. The Constitution of No Authority, supra note 34. Yet even in his earlier work on slavery, he is careful to argue hypothetically, i.e. if the Constitution has authority, then it must be interpreted in the following manner. Return [159] Cf. JOHN LOCKE, TWO TREATISES OF GOVERNMENT II. § 131 (1698) (Mentor ed., 1965), at 398-99. There Locke says that individuals only surrender a portion of their power to enforce their rights to society, "yet it being only with the intention in every one to better preserve himself his Liberty and Property; (For no rational Creature can be supposed to change his condition with an intention to be worse.)." Id at 398.. Return [160] However, if the right purported to be alienated was inalienable, any such "law" would not be obligatory or binding in conscience on the citizenry.. Return [161] Spooner's later explicit rejection of the authority of the Constitution can be viewed as a rejection of hypothetical consent as a sufficient justification of constitutional legitimacy, although, to my knowledge, he does not discuss this issue, or what motivated his apparent change of heart. See, eg., LYSANDER SPOONER. No Treason, No. VI.- The Constitution of No Authority, supra note 34, at 31 ("[T]here exists no such thing as a government created by, or resting upon, any consent, compact, or agreement of 'the people of the United States' with each other...." ). Return [162] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 222. . Return [163] Of course, you should also read Wendell Phillips' critique of Spooner. Apart from adding balance and showing where Spooner overreached, examining Phillips-after reading Part I of Spooner's book, but before reading Part II - helps explain the presence of some lengthy and seemingly esoteric arguments in Part II, as well as the addition of so much otherwise cumulative evidence and authority. Return [164] See supra Part III.B. . Return [165] COVER, supra note 5, at 151 n.*. Cover gives no reasons to support his characterization and fails even to acknowledge Spooner's lengthy response to Phillips in Part II. . Return [166] David A. J. Richards,
Abolitionist Political and Constructional Theory and The Reconstruction
Amendments, 25 LOY. L.A. L. REV. 1187,1193 (1992): |