Judicial Light, Not Popular Heat: The Unconstitutionality of Slavery (1845–1847)

Between the American Revolution and the 1830s, American abolitionism underwent what Richard S. Newman has described as “the first great period of transformation.” Up until the 1820s the dominant approach—most prominently associated with the work of the Pennsylvania Abolition Society (PAS)—emphasized the involvement of elites who could formulate legalistic antislavery arguments. The PAS employed a “tactical and strategic arsenal [that] reflected a late eighteenth-century republican worldview”; its members “operated in a rational, enlightened, and highly dispassionate manner…[and] worked conscientiously within the American political and legal system,” “using loopholes, technicalities, and narrow legal opinions to liberate African Americans on a case-by-case basis.”Footnote ⁷ They were replaced, in the late 1820s, by more “modern” abolitionists—led by members of the Massachusetts Antislavery Society (MAS)—who adopted a populist approach, encouraging “The People” to engage in grassroots activism (in part a reflection of the broader, political changes occurring in American society). They pursued immediate, rather than gradual emancipation, preferring fire in the belly lectures and provocative pamphleteering to legal briefs. As Newman observes, over the course of the first 60 years of the American republic, antislavery activists became abolitionist agitators, and moved from “working the courts” to “working the streets.”Footnote ⁸ Eventually, however, even the “mass action enthusiasm” of these “second-wave agitators” “gave way to [the] reality” that “[t]he people's movement could be stifled by political maneuvering, by alternate constitutional construction, or by the American people themselves.”Footnote ⁹ At the beginning of the 1840s, when abolitionists failed to agree about the way in which they should respond to this situation, the movement irrevocably fractured into competing factions.

These factions disagreed about the answers to many questions, including that which asked whether the United States Constitution empowered the federal government to address slavery in the states. By the middle of the nineteenth century most members of the antislavery community generally took one of four positions on the subject. They either 1) followed the disunionist lead of Garrison and completely rejected the proslavery Constitution; 2) concluded that slavery was a peculiar institution to be created or abolished by state law alone: an institution with which the federal government only had jurisdiction to interfere in the District of Columbia; 3) viewed slavery as a problem covered by the jurisdiction of the national government; or 4) concluded that slavery had never been sanctioned by the Constitution; that it was unconstitutional.Footnote ¹⁰

The construction of arguments challenging the assumption that the United States Constitution was proslavery began, in earnest, during the late 1830s. Individuals such as Nathaniel P. Rogers began to argue that the Constitution did nothing more than “recognize” and “permit” the existence of slavery.Footnote ¹¹ The publication of Madison's Notes temporarily interrupted efforts to sustain these arguments, and emboldened the Garrisonians' proslavery interpretation. However, the antislavery community's support for the Garrisonians had long since begun to decline.Footnote ¹² This did not mean, however, that non-Garrisonian antislavery constitutionalism enjoyed either immediate or widespread support. The earliest of these 1840s arguments consisted of the ill-constructed, half-baked ideas that came from the pen of George Washington Frost Mellen in An Argument on the Unconstitutionality of Slavery, Embracing an Abstract of the Proceedings of the National and State Conventions on this Subject (1841).Footnote ¹³ This was not an auspicious start for those abolitionists seeking to establish a credible alternative approach to interpreting the Constitution.

Within 4 years, however, there emerged a solid body of literature arguing that slavery was unconstitutional, led by the writings of Lysander Spooner. The second of nine children born to Asa and Dolly (Brown) Spooner in Athol, in rural central Massachusetts, Spooner was raised on the family farm where reformist attitudes—with particular emphases on temperance and antislavery—were welcomed. These attitudes profoundly shaped his upbringing, and when he left home in 1833 (at 25 years of age) he took with him a defiantly individualistic and unabashedly radical approach to life. Little is known about the next 3 years that he spent in Worcester, at the time the second largest city in the Bay State. We do not know whether he left a rural environment for an urban one with plans to pursue a legal education, or exactly how, within months of arriving in Worcester, he was able to secure a legal apprenticeship in the offices of John Davis and Charles Allen, two of the most prominent members of the city's legal and political community. Similarly, the literature about the legal and political views of these two men provides us with little information about any jurisprudential values that they may or may not have passed on to their student. What we do know, however, is that by the end of his apprenticeship, Spooner had developed an approach to legal interpretation that was driven by a commitment to natural justice, and articulated (often stubbornly so) using fiercely logical arguments.

In the 1840s, when Spooner decided to use this devotion to logical legal reasoning to attack slavery, the result was The Unconstitutionality of Slavery.Footnote ¹⁴ Although Spooner did not explicitly refer to it, the first part of this treatise was published in response to The Constitution: A Pro-Slavery Compact (1844), which had been produced for the American Anti-Slavery Society by Wendell Phillips. This was a “scissors-and-paste pamphlet” of excerpts from historical documents, including Madison's Notes.Footnote ¹⁵ It was a clear statement of the Garrisonian view of the Constitution; in Phillips's opinion, the historical documents provided “most clearly all the details of that ‘compromise,’ which was made between freedom and slavery, in 1787.”Footnote ¹⁶ Phillips did not care about the textual silence of the Constitution on the subject of slavery. What concerned him was the indisputable historical evidence that the Framers had deliberately omitted references to the peculiar institution. The legal meaning of the Constitution was to be determined by consulting these original intentions of the Framers, and the evidence pointed in only one direction: to an evil, proslavery covenant.

Whereas Phillips believed that law represented a fidelity to custom, tradition, and text, and that it was important to draw a sharp distinction between legal and moral obligations, Spooner concluded that law is “an intelligible principle of right, necessarily resulting from the nature of man” rather than “an arbitrary rule, that can be established by mere will, numbers or power.” Both the intertwined nature of law and morals, and fundamental principles of natural justice proved the “reasonableness, propriety, and therefore truth” of the rule that became the interpretive centerpiece of his antislavery reading of the Constitution.Footnote ¹⁷ Spooner plucked this rule from the United States Supreme Court's 1805 decision in United States v. Fisher: “‘Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.’”Footnote ¹⁸ Spooner concluded that any reasonable person would not consent to a wholesale violation of his or her natural rights, of which slavery was clearly such a violation. Applying the notion of hypothetical consent (Spooner correctly realized that the Constitution was not ratified by unanimous consent), the Fisher rule told him that the document did not sanction slavery because such a violation of natural rights is not “expressed with irresistible clearness.” A statement of support for slavery was not spelled out in the Constitution, it only appeared by interpretive inference. And the original meaning of the Constitution could only be derived from the words themselves; otherwise it was clear that “the people, in some parts of the country certainly, would sooner have had it burned by the hands of the common hangman, than they would have adopted it, and thus sold themselves as pimps to slavery, covered as they were with the scars they had received in fighting the battles of freedom.”Footnote ¹⁹

In Justice Accused, Robert Cover famously described as “moral-formal” the dilemma faced by the nineteenth century judges who were morally opposed to slavery but professionally obligated to apply laws that sanctioned the peculiar institution. It is often forgotten, however, that Cover described a judicial response to this dilemma that was complex and nuanced. Indeed, it was the rare judge who believed he had an either–or choice between fidelity to antislavery natural law and fidelity to proslavery positive law. This aspect of Cover's analysis is frequently overlooked because many of the abolitionists that Cover also discusses (and admires)—most notably the Garrisonians—reduced their analysis of judicial obligations to just such a stark choice; for them, as Cover observes, “[t]he solution to the moral-formal dilemma was,” quite simply, “resignation.” An alternative existed, which Cover describes as “judicial enforcement of natural law, preferably through a forced reading of positive law instruments, but if need be, as an act of naked power.” This, he contends, was the position adopted by the “constitutional utopians” —a group that included Spooner—who “searched, not for a legal theory, but for a way out of the Garrisonian argument with regard to ‘obligation.’ The purpose of the argument was not to prove slavery unconstitutional (whatever that means in a confessedly utopian context) but to prove that antislavery men may become judges and may use their power to free slaves.”Footnote ²⁰ There are two reasons why this description needs to be revisited. First, it does not account for Spooner's belief, during the 1840s, that there was a simple way for judges to avoid the moral-formal dilemma. Second, it also fails to recognize that, in Spooner's eyes, the popular constitutionalism he embraced in the 1850s was just as legally legitimate as the formalistic approach to Constitutional interpretation that he adopted during the previous decade.

Spooner had a simple response to the arguments that the theory articulated in The Unconstitutionality of Slavery completely disregarded the realities of proslavery court decisions. The judges making these decisions were misinterpreting the Constitution. The power of judicial review was entirely legitimate; there was nothing fundamentally wrong with courts playing the supreme role in determining the Constitution's meaning. Spooner conceded that, at present, the courts did not share his natural justice reading of the Constitution; however, the time would come when courts would see the light, and see the Constitution for what it was: a covenant with liberty. There were occasions when he realized that this was an extremely naïve and, indeed, “utopian” position to adopt. However, his shift towards a more popular constitutionalism provides us with a story of abolitionist attitudes to Constitutional interpretation and the role of judges that is complementary to that which is told in Justice Accused.

Regardless of how one defines it, The Unconstitutionality of Slavery was not a work of “popular constitutionalism.” In it Spooner hinted at the problems associated with governmental abuses of legal authority. However, he saw no problem with placing the power of constitutional interpretation in the hands of the nation's judges. The one criticism that Spooner had of judges was that they had thus far exercised insufficient judicial review: “Although the legislation of the country generally has exhibited little less than an entire recklessness both of natural justice and constitutional authority, the records of the judiciary nevertheless furnish hardly an instance where an act of a legislature has, for either of these reasons, been declared void by its co-ordinate judicial department.”Footnote ²¹ Spooner lamented this excessive judicial tendency to defer to the elected branches. It was almost as if the courts were following the election returns, and tipping the scales of justice in favor of slavery, not freedom. In passing, he implied that this situation was partly attributable to the Constitution, because that gave Congress the power of controlling the judicial purse strings. However, Spooner was more concerned with remedies than causes. He rejected the Garrisonian argument that judges should resign. He did not believe that “any of our present judges would…‘resign their offices’ rather than be auxiliary to the execution of an act of legislation” that transgressed the dictates of natural justice.Footnote ²² But, more significantly, he also believed that no “moral-formal” dilemma would exist if judges simply followed the proper rules of legal interpretation.

Spooner laid out an elaborate and extensive set of these rules in part two of his treatise, rules which, if followed, would ensure that decisions would be made consistent with natural justice.Footnote ²³ As Spooner explained:

Perhaps this faith in judicial review was misplaced and naïve. However, what is clear is that Spooner had a plan for improving the chances that the judiciary would follow his interpretive rules. He would place the book in the hands of the nation's lawyers; at the bench and the bar.Footnote ²⁵

On numerous occasions throughout his life, Spooner expressed his hopes and desires for the dissemination of his antislavery writings. And there are times when his vacillation between sending his works to members of Congress and to members of the bar might lead one to question the sincerity of his belief in the importance of judicial interpretations of that document. If he really, truly believed that justice would be achieved at the hands of the judiciary, why would he advocate placing his writings in the hands of other actors? The answer is that Spooner was his own best and worst publicist. He never tired of complaining when he thought someone else had stolen the antislavery limelight by publishing ideas similar to his. It rarely crossed his mind that other unconstitutionality of slavery abolitionists had independently conceived of their ideas; his first thought almost always ran to plagiarism.Footnote ²⁶ He constantly sought the funding that he was sure would afford him the time and resources needed to write the definitive work on the relationship between slavery and the Constitution, a work that only he could produce. And in his quest for fame and fortune he often fell back on the position that any publicity was good publicity (especially if it represented a timely reaction to certain events), even if that publicity did not represent the best hope of ensuring judicial cognizance of his ideas.

For example, in November 1845, a few months after the publication of part one of The Unconstitutionality of Slavery, last-ditch efforts to prevent the annexation of Texas led Spooner briefly to flirt with the idea of distributing his book to members of Congress. However, within a month of making this suggestion to George Bradburn, he was writing to say that now it was “too late to do any good sending my book to Congress, do you think there are any, who will take the expense of sending it to the members of the United States Supreme Court?”Footnote ²⁷ Eighteen months later, in the spring of 1847, when the ink was barely dry on the pages of the manuscript which, later that year, would be published as part two of the treatise, Spooner wrote several letters to Gerrit Smith. As he had done so on many previous occasions, Spooner solicited funds from the wealthy New York abolitionist-philanthropist. This time he sought financial support for his latest plan to disseminate the argument that slavery was unconstitutional. Spooner had long believed it necessary to make a “systematic effort…to spread the truth in relation to the constitution,” and since the 1845 publication of part one of The Unconstitutionality of Slavery, he had firmly believed this would be best accomplished by placing his work in the hands of the nation's lawyers and judges.Footnote ²⁸ Now, he wrote Smith to argue that the halls of Congress (and legislatures more generally) represented the most effective venues for achieving the goal of interpreting the Constitution as antislavery, because “our courts are corrupt to a degree of which few persons are aware.”Footnote ²⁹ Something—either a particular event or an accumulation of happenings—had begun to shake his faith in the ability of judges to act impartially and to administer the correct (natural justice-based) interpretation of the law. However, he only briefly flirted with the idea that the proper answer to the question “Who should interpret the Constitution?” was “The People” rather than “governmental machinery.” Ultimately, he kept coming back to the idea “that, were they [the courts] acquainted with the fact that slavery is unconstitutional they would yet deny it so long as they supposed…the people to be ignorant of it,” which would not be very long were an educated bench and bar to lead the way in taking a properly interpreted Constitution to the people.Footnote ³⁰

On March 13, 1848, an anguished Spooner once again wrote to Gerrit Smith; once again he sought money, financing that would enable him to purchase the stereotype plates for printing parts three, four, and five of The Unconstitutionality of Slavery.Footnote ³¹ Anticipating one of his correspondent's concerns, Spooner made the following observation:

This last comment typifies Spooner's 1840s approach to antislavery constitutionalism. Abolitionists needed to “urge matters rapidly to a crisis,” but Spooner preferred to see them using educational and enlightening means; he wanted people to see the light rather than feel the heat.Footnote ³²

“The Right of the People”: A Defence for Fugitive Slaves (1850)

During the 1850s, a significant percentage of abolitionists began to move away from a nonviolent response to slavery. Increasingly, they infused their writings with calls to arms; some went further, becoming involved in endeavors that were designed to, and sometimes actually did, result in violent confrontations with “Slave Power”. This is not to say that the antislavery movement had been inherently peaceful prior to this decade. Events in previous decades challenged the nonresistance principles of many abolitionists who were challenging an inherently violent institution.Footnote ³³ However, into the 1850s, the futility of actions grounded in peaceful principles became more apparent. As James Brewer Stewart observes, “Two decades of preaching against the sin of slavery had yielded, not emancipation, but an increase to over four hundred thousand black people held in bondage.”Footnote ³⁴

The passage of the 1850 Fugitive Slave Act—which served as the principal trigger for this new wave of more aggressive abolitionist activism—also exposed the futility of antislavery constitutionalism grounded in a commitment to the “proper” rules of interpretation. As Robert Cover has shown, the prevailing definition of law during the antebellum period was “not simply words in instruments. It was the fabric of purposes and motives associated with the men who wrote them. Even when men proclaimed and declared ‘natural’ rights, it was not the natural but the human fabric that gave it its shape and import.”Footnote ³⁵ For the judges who struggled with the “moral-formal” dilemma, and sought to accommodate “the natural law tradition” into their interpretation of statutes, there were three main options. One could 1) determine that the authors of a statute had intended it to further a goal that was consistent with natural law; 2) identify situations in which natural law could aid in the application of a statute; or 3) conclude that natural law should trump codified law unless the language of that law explicitly (in other words, textually) stated otherwise. Judges were frequently confronted with statutes that, for numerous reasons, lent themselves to antislavery interpretations consistent with one or both of these first two options.Footnote ³⁶ The Fugitive Slave Act of 1850 was different. It “evinced a clear congressional policy favoring harsh and summary enforcement of the rendition policy over any solicitude for procedural or substantive rights of alleged fugitives… .there was substantially less room for the outlet of principled preference for liberty, which operated in more amorphous doctrinal situations.”Footnote ³⁷ As his use of the Fisher rule indicates, in The Unconstitutionality of Slavery Spooner embraced the third and most controversial of the options outlined above. However, he clearly recognized that the explicitly proslavery language of this new law made it very difficult for natural law to play any role in its interpretation. How, then, did he intend to remedy this problem, and what role would judges play in a post-1850 world of antislavery constitutionalism?

The answers came in A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850, which marked a sharp departure from Spooner's earlier “un-popular” antislavery constitutionalism.Footnote ³⁸ Writing about the effects of the 1850 Act on abolitionist activism, Jane H. Pease and William H. Pease observed, “[w]hen the reality of events runs counter to the moral imperative of an era, reasonable men join fanatics in rejecting quiet argument and compromise for more vigorous action.”Footnote ³⁹ In A Defence for Fugitive Slaves, Spooner provided numerous reasons why the 1793 and 1850 laws were unconstitutional. In doing so, he made it very clear why the passage of the 1850 law pushed him away from the “quiet argument” of the courtroom to “more vigorous,” and more “popular” antislavery constitutionalism action. The reasons for the laws' unconstitutionality fell into two main categories: violations of legal procedure, and judicial “ignorance” and “corruption.”Footnote ⁴⁰ Although he considered the procedural objections to the laws important, Spooner spent far greater time 1) explaining why the courts would not actually strike down either of the laws, and 2) outlining “The Right of Resistance”: ways in which “The People” could respond to what he now recognized as the “ugly reality” of proslavery constitutionalism.Footnote ⁴¹

Shedding any remnants of his earlier faith in the judiciary, Spooner wrote that “judges are in the nearly unbroken habit of holding all legislation to be constitutional.” Courts are “always…ignorant, servile, or corrupt enough” to defer to legislatures, even when those bodies pass laws circumventing basic legal rules. Spooner defended this argument by first pointing to the 1842 decision in Prigg v. Pennsylvania, in which the Supreme Court held that under the Constitution's Supremacy Clause, the 1793 Fugitive Slave Act trumped Pennsylvania's personal liberty law (which had made it far more difficult than the 1793 Act did for slaveholders to recover individuals they alleged were fugitive slaves). Spooner was convinced that it was only a matter of time before the Court similarly upheld the 1850 Act.Footnote ⁴² In the face of this judicial reality, and to ensure the “maintenance” of the Constitution, Spooner encouraged popular resistance to such travesties of justice. Indeed, argued Spooner, the Constitution gave “The People” an “absolute and unqualified” Constitutional “right” to do so. He pointed to the Second Amendment as evidence of this right. Spooner wrote that the language of the Amendment—“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”—“implies the right to use” these arms, and “[t]his is the only remedy suggested by the constitution, and is necessarily the only remedy that can exist, when the government becomes so corrupt as to afford no peaceable one.”Footnote ⁴³

Scholars have failed to reach a consensus about whether the Second Amendment is the source (or has, throughout history, been a source) of a legitimate popular constitutionalist response to the problems associated with judicial supremacy.Footnote ⁴⁴ Therefore, one might be hesitant to describe A Defence for Fugitive Slaves as consistent with the principles of popular constitutionalism were it not, however, for the twenty-two page Appendix to that work, an Appendix that formed the basis of Spooner's An Essay on the Trial by Jury.Footnote ⁴⁵ This 1852 treatise continues to be cited as one of the most important texts on the theory of jury nullification, and Spooner considered it his magnum opus (even if it had “proved to be a very laborious book to write”).Footnote ⁴⁶ However, A Defence for Fugitive Slaves, although receiving far less scholarly attention, remains important in its own right, particularly with regard to the evolution of Spooner's antislavery constitutionalism from the “un-popular” to the popular. For one can see in this document significant evidence of the ways in which the passage of the 1850 Fugitive Slave Act shook Spooner's faith in the ability of the nation's courts to interpret the Constitution in a manner consistent with the dictates of natural justice. It did not engage in a substantive defense of jury nullification; this was left to An Essay on the Trial by Jury (and is the principal reason for that work's lasting significance). However, Spooner's argument that liberty was much safer in the hands of jurors than in those of judges was laid out in quite some detail, and with considerable conviction in A Defence for Fugitive Slaves. And there was no mistaking the popular constitutionalist nature of this argument.

As Larry Kramer observes, in the late eighteenth and early nineteenth centuries the jury was “[t]he principal device expressing popular control over ordinary law.”Footnote ⁴⁷ By 1852 the idea of the jury as the ultimate power of populist expression still enjoyed extensive support in American society, support that Spooner sought to tap into. Crafting what might be considered his own jury-related version of the Fisher rule, he argued that, “under the trial by jury, no man can be punished for resisting the execution of any law, 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.” In an America bound by the terms of the Fugitive Slave Act of 1850, the jury was the only trusted form for administering justice. And “The People,” from whom juries were composed, were the only persons that could be trusted to interpret the Constitution.Footnote ⁴⁸

Tackling Taney: Spooner's “Manifesto” (1858)

After the publication of A Defence for Fugitive Slaves, Spooner produced very little new material about antislavery constitutionalism until 1857 when the United States Supreme Court issued its infamous decision in Dred Scott v. Sandford.Footnote ⁴⁹ Spooner described Chief Justice Taney's opinion for the Court in that case as composed of “palpably false and ridiculous” premises. The opinion stood for every aspect of judicial reasoning and constitutional interpretation that Spooner abhorred. Taney had engaged in a classic case of judicial overreaching, used tortured and historically disingenuous reasoning, and interpreted the Constitution by drawing on extrinsic evidence of the original intent of the Framers. It should, therefore, come as no surprise to find that this decision destroyed Spooner's residual faith in the judiciary, and solidified his decision to continue on the path of popular constitutionalism that he had begun to construct in A Defence for Fugitive Slaves. Footnote ⁵⁰

Spooner's principal response to Dred Scott came in 1858 when he published a radical broadsheet (he later referred to it as a “Manifesto”) that proposed a decidedly populist “stratagem” for ensuring that the nation's governments—including the courts—conformed to his antislavery constitutionalism. On one side of the broadsheet was printed “A Plan for the Abolition of Slavery”; the reverse issued a call “To the Non-Slaveholders of the South.”Footnote ⁵¹ In “To the Non-Slaveholders of the South,” Spooner laid out the four “self-evident principles of justice and humanity” that would guide the implementation of “A Plan for the Abolition of Slavery.” Adopting the natural rights position that readers of his work had come to expect, the first principle he identified was that “Slaves have a natural right to their liberty.” Second, they have a natural right to compensation for the suffering wrought by enslavement. Spooner did not identify the party from whom compensation could be sought, but he did say it was contingent upon the ability of “the property of the Slaveholders and their abettors” to provide the compensation. Third, slaves have a right to obtain this compensation by “stratagem or force” if the governments “refuse to give them liberty or compensation.” Significantly, he did not say that this was a natural right. As natural rights are prepolitical, this suggests that he expected some kind of positive governmental involvement in the compensation process. The fourth and final principle Spooner noted was “the duty of all, who can, to assist” the Slaves in securing these rights.Footnote ⁵²

Spooner expected this assistance to be rendered through the adoption of five measures. First, “all the corrupt and tyrannical [proslavery] political institutions” were to be “ignore[d] and spurn[ed].” Second, new governments were to be established in order to criminalize slaveholding and instigate civil lawsuits for slaves seeking compensation. Third, until such time as these profreedom governments were created, slaves were to be recognized (presumably by the law, but Spooner does not make this clear) as “freemen” and holders of the property currently owned by their masters. This property “would pass to them, if justice were done.” Fourth, anticipating minimal governmental cooperation with these measures, he urged the formation of Vigilance Committees that would serve as temporary sociopolitical entities, bodies that would ensure “justice were done.” Finally, invoking the spirit of the Biblical “golden rule,” Spooner expected “you” to teach the former slaves to do unto their former masters that which was done to them. He clarified that this did indeed include stripping and flogging the former slaveholders.Footnote ⁵³

The intended audience for “To the Non-Slaveholders of the South” is unclear (the title of the document notwithstanding). When outlining the forms of assistance required to secure the slaves' rights, Spooner consistently used the indefinite pronoun “you.” However, the party to whom he addressed himself changed constantly. The third and fourth measures spoke to nongovernmental actions that would be necessitated by the corruption of society's bodies of governance. And one can read into Spooner's Manifesto an underlying current of pessimism. Spooner had long since shed his naïve belief that governments were inherently just organizations. Now he began to exhibit sympathy for anarchistic solutions to the problem of unjust governments. However, as an important stated goal of “To the Non-Slaveholders of the South” made clear, none of the five measures were predicated upon a belief that proliberty governments could never exist. Spooner encouraged his readers to effect change in “political institutions soon as possible” by, among other things, refusing to give witnesses testimony in court and, as jurors, delivering “no verdicts, in support of any Slaveholding claims.”Footnote ⁵⁴

In “A Plan for the Abolition of Slavery,” Spooner went into greater detail, listing the eleven actions that would be undertaken to achieve the “self-evident principles of justice and humanity.” The first eight actions were intentionally nonconfrontational and nonviolent:

1. 1. Forming groups of individuals willing “publicly” to support “the enterprise.”Footnote ⁵⁵

2. 2. Printing papers in support of “the enterprise.”

3. 3. Withholding votes from prospective officeholders who were not committed to “the enterprise.”

4. 4. Fundraising, and obtaining military hardware.

5. 5. “Forming and disciplining such military companies as may volunteer for actual service.”

6. 6. Encouraging nonslaveholding Southerners to break from those with ties to slavery.

7. 7. Educating slaves about emancipation plans.

8. 8. Encouraging abolitionists to move to the South.

These actions were nonviolent because they were “preliminaries” to three other, more important actions. First, organized “land[ings]” of military troops, in numerous strategic locations in the South, “shall raise the standard of freedom, and call it to the slaves, and such free persons as may be willing to join it.” Second, assuming that only warfare could bring about emancipation, the laws of warfare would serve as justification for taking slaveholders' property in order to compensate the slaves. In “To the Non-Slaveholders of the South,” Spooner described slavery as an act of war. Slave rebellions, by contrast, were acts of a “just war…a war for liberty,” and this gave legal justification to the act of appropriating the property of slaveholders. For any “laws” that “have the power to make that right which is naturally wrong, or wrong that which is naturally right” are no “laws” at all.Footnote ⁵⁶ Spooner's final planned action was to establish proliberty governments in the South, governments that would presumably administer Spooner's natural rights understanding of law and interpret the Constitution in a like manner.

Spooner's Manifesto was not widely distributed; it lacked the logical acumen of his other works, and its inflammatory content was cause for concern among many abolitionists.Footnote ⁵⁷ For example, John Brown and the circle of people connected with the planning of the Harpers Ferry raid recognized that it was impractical, but knew they could not guarantee that the nation's “Slave Power” would interpret it as such. It worried some members of the Secret Six, causing them to have second thoughts about the safety and wisdom of providing Brown with financial support.Footnote ⁵⁸ Even Thomas Wentworth Higginson, the least “ambivalent” member of this group, and himself the author of a published article that offered justifications for slave insurrection, tried to dissuade Spooner from circulating it. Two days after receiving a copy of the document in late November, 1858, he wrote to Spooner to express sentiments that he reinforced when the two men met in Boston a few days later.Footnote ⁵⁹ Higginson acknowledged the likelihood that slave insurrections would occur “within a few years,” and that they would take place “with the aid of secret co-operation from the whites.” And he conceded that had these occurred earlier, they would have brought an end to slavery and greater Northern awareness of the importance of individual liberty. However, he also believed that Spooner had things backwards. “People's hearts go faster than their heads. In place therefore of forming a society or otherwise propounding insurrection as a plan, my wish would be to assume it as a fact. The concrete will arouse more sympathy than the abstract.” Although Higginson's letter strongly implied that plans were already afoot for insurrectionist activities such as those outlined in the Manifesto: “Were I free to do it, I could give you assurances that what I say means something,” there is no evidence that Spooner had any knowledge that the plans in question were for John Brown's raid the following year.Footnote ⁶⁰

Even though Spooner's 1858 Manifesto does not mention the United States Constitution, it makes an important contribution to our understanding of the ways in which Spooner's antislavery constitutionalism became increasingly “popular.” It is the most significant of his written responses to Dred Scott, and demonstrates that by 1858 the seedlings sewn in 1850, in reaction to the Fugitive Slave Act, had flourished and grown into strong powerful trees of popular constitutionalism. Elements of the Manifesto did foreshadow Spooner's 1870s anarchism, and, on their own, those elements might be viewed as an endorsement of a “democratic repudiation” of the law, statutory or constitutional; something that could not be described as consistent with the principles of popular constitutionalism. The Garrisonians engaged in an equivalent “democratic repudiation” of the Constitution, and, as I noted from the outset, burning the Constitution is fundamentally different from offering a nonjudicial answer to the question “Who possesses the authority to interpret the U.S. Constitution?” It would be wrong, however, to argue that Spooner's 1858 Manifesto was defined by its anarchical elements. When one examines the document in its entirety, one finds clear and convincing evidence that the 1850s had been a transformative decade for Spooner. He now accepted the “ugly reality” that judges were anything but enlightened repositories of natural justice-oriented interpretations of the Constitution.Footnote ⁶¹

Can You Find Me “A FEW FRIENDS Of Freedom”?: Address of the Free Constitutionalists (1860)

In the days immediately following the raid on Harpers Ferry, the Democratic New York Herald relentlessly attacked Gerrit Smith (who had funded Brown's raid). The paper believed—justifiably—that Smith was the abolitionist with the strongest ties to Brown. Interestingly, however, it tried to connect Smith to the raid using Spooner's Manifesto, but without mentioning Spooner. “A Plan for the Abolition of Slavery” and “To the Non-Slaveholders of the South” appeared together in the lead article in the newspaper on October 22, 1859. The broadsheet had been forwarded to the paper's editor by an anonymous resident of the St. Nicholas Hotel in New York CityFootnote ⁶² with the accompanying curious statement: “The recent outbreak at Harper's Ferry has recalled to my remembrance a document put into my hands during a recent tour through the New England States… .In a conversation with the person who gave the ‘plan’ to me, he indicated three points at which disturbances might occur—viz: Harper's Ferry, the neighborhood of the Mammoth Cave in Kentucky and of the Arkansas river.”Footnote ⁶³ Five days later, at the behest of the New York Democratic Vigilant Association, the newspaper again published “A Plan for the Abolition of Slavery.” Once again, Spooner was never mentioned; in fact, everything points to the conclusion that neither the paper nor the group of Democrats had any idea that the document was not the work of a Smith- and Brown-led organization.Footnote ⁶⁴ It was, therefore, ironic that in March 1860 Lysander Spooner was retained as “consulting counsel” for the libel suits brought on Smith's behalf against members of the Vigilant Association.Footnote ⁶⁵

Retaining the legal services of Spooner at the beginning of 1860, as the country stood on the brink of civil war, was a strange move, because by this time, Spooner had clearly lost faith in the ability or willingness of the government (especially the courts) to champion either liberty or justice. He now saw how true it was that “the law is what we live with. Justice is…harder to achieve.”Footnote ⁶⁶ He expressed this sad truth in his Address of the Free Constitutionalists to the People of the United States. This fifty page pamphlet was the product of Spooner's labors to make good on a promise that he made in a letter to Senator William H. Seward in January 1860. It confirmed that Spooner had now shed any vestiges of his earlier “un-popular” constitutionalism.Footnote ⁶⁷

Seward had long been familiar with Spooner's works, and on occasion he had endorsed some of the positions they contained.Footnote ⁶⁸ However, in 1860, Spooner did not write to congratulate the Senator on his opposition to slavery. Instead, he described Seward as a “jesuitical leader” (a label he also applied to “the Chases, and Sumners, and Wilsons, and Hales.”) Appalled at their moderate stance on the slavery question, he lashed out at these Republicans, whom he described as disingenuously “profess[ing] that they can aid liberty, without injuring slavery.” He brought the letter to a close with the following promise. “I shall very likely make the whole of this correspondence public; and if it shall serve any purpose towards defeating yourself and the Republicans, I shall be gratified; for I would much rather the government be in the hands of declared enemies of liberty, than in those of treacherous friends.”Footnote ⁶⁹

The Address of the Free Constitutionalists made good on this promise, and expressed Spooner's belief that the country's populace now had two choices. “If we wish to enjoy any liberty ourselves, or do anything for the liberation of others,” we have “to emancipate ourselves from our intellectual and moral bondage to the frauds and crimes of dead slaveholders and their accomplices, and either read and execute our constitution as it is, or tear it in pieces.”Footnote ⁷⁰ After the war, Spooner increasingly lost faith in the Constitution. In 1860, however, he still felt there were good reasons to “read and execute” the document. The Address of the Free Constitutionalists demonstrated, however, that his answer to the question “Who possesses the authority to interpret the U.S. Constitution?” was no longer “the judiciary,” as it had been 15 years earlier. Now, the answer was “The People.”

The Address of the Free Constitutionalists was primarily intended to discourage people from supporting the Republican Party. Spooner rejected what the Republican Party “would have us believe”: that the “real question, that is now convulsing the nation…[is] whether slaves shall be carried from the States into the Territories.” This was a non sequitur because it was based on the unconstitutional premise that slavery could exist anywhere in the nation, state, or territory. The Constitution was a “warrant for giving liberty to all the people of the United States”; therefore, “the man, who, like the Republican party, consents to the existence of slavery, so long as the slaves are but kept out of his sight, is at heart a tyrant and a brute.”Footnote ⁷¹ This was a fascinating formulation of the concept of popular sovereignty. On the one hand, it was eerily reminiscent of the 1840s Southern states-rights Democratic position on the federal government's power over slavery. On the other hand, however, it was a formulation that turned that position on its head.

The principle of popular sovereignty has been described as “[b]eautifully simple in theory and thoroughly American in its essence.” However, it is also a thoroughly “malleable” doctrine, as evidenced by the multiple conflicting ways in which it was invoked by both the friends and foes of slavery.Footnote ⁷² In the 1840s, Southern Democrats adopted a strict constructionist approach to Constitutional interpretation, and saw in the Constitution a simple, clear, and thoroughly American statement of popular sovereignty. They argued that the document created a federal government of limited powers. Crucially, the power to determine the status of slavery in newly appropriated territory was not a power given to that government. Instead it was reserved to the “sovereign states,” for whom the federal government acted as a “common agent.” This was the way in which the Constitution guaranteed individual property rights.Footnote ⁷³ When Lysander Spooner looked at the Constitution, the principle of sovereignty that he saw protected—the prevailing constitutional principle of self-government—was incompatible with slavery because it placed the right to govern oneself over the power to govern anything, or anyone else.Footnote ⁷⁴

By 1860, the nation had long since realized that when confronted with political reality, the “beautifully simply” principle of popular sovereignty turned out to be wonderful in theory, but fatal in fact.Footnote ⁷⁵ As Spooner recognized in the Address of the Free Constitutionalists, this was in no small part because of Dred Scott. Recall that in The Unconstitutionality of Slavery Spooner adopted a rule from the Supreme Court's opinion in United States v. Fisher, stating: “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.” With regard to popular sovereignty and the status of slavery in the territories, Spooner now argued that if the Constitution made any person a slave (which, of course, it did not), then that person would have to be a slave wherever he or she went in the country, for as Spooner explained at length, only the federal government possessed the constitutional power to determine “who are, and who are not (if they are not) citizens of the United States.”Footnote ⁷⁶

This was a profound argument to make after Dred Scott, because it followed that if slavery was constitutional everywhere, then any slaveholders could take their slaves to any part of the country and be reassured by the thought that the Constitution, much less any statutory law, protected that property. This was exactly the point that Spooner sought to make, because it provided another, very powerful way in which to attack the Republican Party's 1860 platform, which “denounce[d] the lawless invasion, by armed force, of any State or Territory, no matter under what pretext.” “This,” exclaimed Spooner, “is giving to slavery more than it ever asked,” and more than “[e]ven the Dred Scott judges themselves” claimed. For “[t]hose judges [only] conceded that slavery could not be extended beyond the limits of a single race; whereas the Republicans acknowledge no such, or any other, limit to slavery in the States; or what is the same thing, to slavery in the United States.”Footnote ⁷⁷ By 1860, Lysander Spooner's faith in the nation's government had evaporated; the last best hope for those who were enslaved lay not with the governors, but with the governed. Only “The People” could now see and act upon the true antislavery meaning of the United States Constitution.