The Tenther Grapevine
Recently, I wrote about Lysander Spooner’s dubious argument that the unamended Constitution as originally ratified prohibited slavery in a book review I did for The New American.
Jonathan Bean, Research Fellow at the Independent Institute and professor of history at Southern Illinois University, commented on my review of his book “Race & Liberty in America” (I believe it was him … you never know) and defended Spooner with the following.
Spooner may have been wrong about the Constitution (people disagree) when he wrote the argument that it did not — and could not — uphold slavery. While you may disagree, his argument is actually an extremely _strict_ interpretation of the law as a) protecting individual rights well-accepted in Anglo-American law; and b) contracts must be consensual: by tracing the history of American charters and constitutions, he shows that blacks never “signed over” their rights to the Government and submitted to slavery. And they had no right to hand over their children. There was no legal basis for man-stealing. It happened over time AND THEN it was codified. So he is arguing against a “living Constitution” theory that the law must grow to accept new conditions (namely slavery).
While I agree that slavery is vile, horrific and thankfully abolished, I must disagree that Spooner is “arguing against a living Constitution” and for a strict interpretation.
Slavery was definitely around at the time of the ratification and was debated by both the drafters and ratifiers. They both decided to mostly leave it as a state issue to be solved by popular sovereignty.
Spooner’s argument that the Constitution was not binding on African-Americans is actually much stronger but if you follow this line of thinking to its logical end, then you must conclude that the Constitution is not binding on anyone who wasn’t alive at the time of the ratification. And that’s actually what Spooner eventually argued.
BTW, if you’re interested in a good stocking stuffer, Bean’s book might be just what you need.
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Thanks, Jonathan! I actually quite enjoy both the blogging and reviewing. But I found Douglass' constitutionalism to be as centralizing , unoriginalist and troubling as Spooner's. How was it different/better?
From Jonathan Bean (yes, the author):
Thanks for the plug — and yes, if you have ever debated race with a know-it-all (Left)-"liberal," then this book will give you ammo.
Patrick, you are right about where Spooner ended up: He argued, in effect, that NO constitution was binding on any one (anarchism). There was no "living Constitution" — the Constitution 'died' (or never lived) according to Spooner's final arguments in later years (I note this in my book commentary). Also, he was fully aware that slavery existed, the Founders accepted it, etc., etc. but it had no contractual or natural law foundation.
I'm *not* a defender of Spooner (far from it) but I included him because he had such a great impact on Frederick Douglass who came to a more moderate view of the Constitution than Spooner (i.e., most "classical liberals" were/are constitutionalists, not anarchists like Garrison or Spooner). Spooner, right or wrong, provided an argument that influenced others, and so they did the same for others with their own continuation of the classical liberal tradition.
That's why the book ends with Clarence Thomas and others citing Frederick Douglass. Spooner isn't the key figure; Douglass is the man. But he was only a man in the midst of a wide constitutional and natural law tradition of liberalism that we need to get back to in 2009.
Keep up the great work! Reviewing and blogging is a thankless task — as a former review editor and frequent reviewer, I know!
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