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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