The unconstitutionality of the Constitution

It was common for nineteenth-century abolitionists to disparage the United States Constitution. William Lloyd Garrison called it “a covenant with death” and “an agreement with hell,” due to the dominant (and enforced) pro-slavery reading of the document (Garrison quoted in Long, pg. 13). This was not the view, however, of Boston abolitionist Lysander Spooner. Spooner argued at considerable length in his controversial 1845 work, The Unconstitutionality of Slavery, that despite the intentions of the framers, and despite the fact that most reasonable people understood the Constitution to authorise slavery, the only defensible reading of the text was one that banned the practice. Spooner reached these conclusions by deploying his own method of legal interpretation that heavily incorporated other beliefs he held about natural law. Those pre-interpretive natural law views would later take centre stage in 1870, with his explicitly anarchist No Treason. There, Spooner argues that monopoly government1 is inherently illegitimate, or more specifically, illegal.

Intuitively, both Spooner’s abolitionist interpretation of the Constitution and his later claim that monopoly governments are illegal seem absurd. Yet I will argue here that Spooner’s views on law as prior and superior to legislation, as well as his methods of interpreting legislation through natural law, are highly plausible and necessary for pursuing justice. I will begin by outlining what those legal naturalist views and methods of interpretation are, while showing how each complements the other. Then I will address a few potential objections, and in the process, relate Spooner’s views to more contemporary approaches to legal interpretation. Then, I will address, through a Spoonerite lens, his later-in-life target, the monopoly government the Constitution is thought to authorise. I will first affirm Spooner’s own contention that, given the naturalistic status of law, the monopoly government set up by the Constitution as almost universally understood, is illegal. While that will flow in a fairly straightforward way from the previous parts of the paper, I will go on to make a stronger claim that requires more explaining. I will claim, using Lysander Spooner’s own interpretive theory, that the Constitution as almost universally understood – one that would authorise the formation and maintenance of a monopoly government – is not only illegal, but unconstitutional. To do so, I will begin by listing the several places in which the Constitution appears to explicitly authorise a crucial and distinguishing feature of monopoly government. After that, I will outline the several places that explicitly refer to normative terms that not only authorise but require a moralised, natural law reading of the Constitution, and I will argue that these aspects of the Constitution are primary. This will be further supported by reference to sections of the Constitution that not only refer to justice in the abstract, but point us in the direction of its more specified content. It will then be time to revisit those sections that appear to explicitly authorise the naturally illegal aspects of monopoly government, put them in a new light with those other sections in mind, and give alternative, naturally legal readings. In conclusion, I will show how the previous conclusions of this paper point a conceptual incoherence in non-libertarian legal systems.

Spooner and natural law

For the length of this paper, I will be assuming a roughly libertarian account of justice.2 By “libertarian,” I refer to a broad set of views holding that individuals have “self-ownership,” or exclusive right to determine their own non-invasive actions. Corollaries to this include principles like “equality of liberty,” in which no person is allowed to have a liberty not shared by other persons, and “non-aggression,” in which no person is allowed to initiate either force or fraud when dealing with another person, except in self-defence or when seeking restitution. The approach here will remain within a fairly large ball park of more specific conceptions.

With that in mind, we can proceed to Spooner’s view of natural law, and how it stands distinct from legislation. Spooner refers to natural law as “the science of mine and thine – the science of justice,” by which he means “the science of peace[,] . . . which can alone tell us on what conditions mankind can live in peace, or ought to live in peace, with each other” (Spooner, Natural Law, pg. 53). In differentiating between “moral” duties and “legal” duties, Spooner tells that

Man, no doubt, owes many other moral duties to his fellow men; such as to feed the hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenceless, assist the weak, and enlighten the ignorant. But these are simply moral duties, of which each an must be his own judge, in each particular case, as to whether, and how, and how far, he can, or will, perform them. But of his legal duty – that is, of his duty to live honestly towards his fellow men – his fellow men not only may judge, but for their own protection, must judge. And, if need be, they may rightfully compel him to perform it. They may do this, acting singly, or in concert. (Spooner, Natural Law, pg. 55-56)

In other words, “law,” for Spooner, refers specifically to those moral claims that are actionable. For something to not only be an immoral harm by one person against another person but also a crime, it must be something that one can legitimately use force to either prevent, end, or demand compensation for. Seeing as Spooner accepts a libertarian theory of justice and rights, this means instances of aggression – force or fraud initiated for any reason other than defence against or restitution from a preceding instance of aggression. Spooner’s use of the broad phrase “honesty” might leave the reader unconvinced that this is his meaning. Elsewhere in the same piece, though, he explicitly refers to “force or fraud, committed by one man against the person or property of another” (61), and states that the “immutable and universal law” is made up of the “principles [of an individual’s] . . . natural rights of person and property” (61). In his work Vices Are Not Crimes,3 he defines “crimes” as “those acts by which one man harms the person or property of another,” in contrast to “vices” which are simply “those acts by which a man harms himself or his property” (Spooner, Vices Are Not Crimes, pt. I).

This is all well and good, but even if we accept Spooner’s libertarianism, why are we to join him in accepting his definition of “crimes” as essentially “rights violations?” Legislation (at least as almost universally understood), those who draft it, and those who enforce it, certainly seem to consider quite a few things beyond just moral vices to be crimes. Surely, Spooner is not claiming that we already live in his libertarian utopia. Of course, this is not his claim. The actual claim he makes here rests on a fundamental separation between “law” and “legislation.” In his later years, when the emphasis on the natural-law-as-prior-to- legislation aspect of his views was more pronounced than the aspect that used natural-law-as-a-lens-for- interpretation, he put that distinction in very blunt terms:

What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible dominion over all other men whom they can suspect their power. It is the assumption by one man, or body of men, of a right to suspect all other men to their will and their service. It is the assumption by one man, or body of men, of a right to abolish outright all the natural rights, all the natural liberty of all other men; to make all other men their slaves; to arbitrarily dictate to all other men what they may, and may not, do; what they may, and may not, have; what they may, and may not, be. It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place. All this, and nothing less, is involved in the very idea that there can be any such thing as legislation that is obligatory upon those upon whom it is imposed. (Spooner, Natural Law, 67).4

Why not just say that legislation out of step with natural law is just bad law? At first glance, we might think Spooner is just playing word games to rationalise radical provocations. There’s a point to those radical provocations, however, and that point is that we carry with us our pre-existing moral obligations even when we engage with each other through the legal system. Unless we assume that law magically relieves us of those previous moral obligations, it must only authorise activity that its participants already had the authority to authorise. As Roderick Long, a contemporary political philosopher who takes influence from Spooner, explains:

Suppose, for example, that the U.S. Congress were to pass legislation outlawing Buddhism. Would this legislation have the force of law in the United States? Arguably no, it would not, even if it were rigorously enforced – because the Constitution, the ‘supreme law of the land,’ forbids any abridgement of the ‘free exercise of religion.’ Since it is from the Constitution that Congress derives its legislative powers, any statutes it passes in contravention of the Constitution exceed its powers and so have no more claim to law than some opinion I might scribble on a lavatory wall. But where does the Constitution get its legal authority? From the state conventions that ratified it? What authorised those state conventions to ratify it? Unless the regress terminates in something possessing inherent authority, something natural rather than conventional, it’s hard to see how anything along the line counts as having authority (and so as having the status of law) (Long, Inside and Outside, 15-16).

As Spooner succinctly contends, “[g]overnment may have no powers except as individuals may rightfully delegate to it” (Spooner quoted in Barnett Was Slavery Constitutional, pt. II). A positivist response to this objection of regress doesn’t solve the problem either, because the justification of the power to compel is exactly the thing we’re trying to prove. Spooner therefore reiterates the common reason for rejecting positivism, saying “[i]f physical power be the fountain of law, then law and force are synonymous terms. . . . Are we prepared to admit the principle, that there is no real distinction between law and force? If not, we must reject this definition” (Spooner quoted in Long, Inside and Outside, 16). If law is to bind, it must be moral, and if law is to be moral, it must come from an authority that can morally give such power. Therefore, whatever is done in the name of law must be something that the person acting on behalf of the law already could have already been allowed to do, prior to legislation.

Spooner’s primary reason, then, for believing that slavery was illegal before the thirteenth amendment, should be pretty obvious at this point. “(1) Written laws, including written constitutions, that violate natural justice as defined by natural rights are not to be enforced by judges. (2) Slavery is unjust because it violates the natural rights of the slave. Therefore, (3) slavery is [illegal] . . . and not to be enforced by judges. Q.E.D” (Barnett Was Slavery Constitutional, pt. III). Most people living today would clearly accept premise 2, and even so would many at the time who defended slavery, at least those who held it to be a “necessary evil,” rather than a “positive good.” The heavy lifting, then, for someone wanting to defend a conclusion about “the unconstitutionality of slavery” in 1845, would probably be in establishing premise 1. While Spooner does make this argument in The Unconstitutionality of Slavery, though, and more forcefully defends it at greater length in later works, this only accounts for the introductory material of his constitutional case against slavery. The rest of the book is devoted to a much more peculiar argument against the peculiar institution.

Spooner’s use of natural law as an interpretive mechanism for legislation and how death and hell5 accidentally agreed to ban slavery

Though we have seen Spooner to have no particular love for legislation, and was later the author of an entire book on how the Constitution held “no authority,” he believed it already gave him much of what he wanted in terms of justice. In this section, I will detail why he thought so. Spooner not only believed natural law preceded and bound legislation, but that legislation was a parasitic concept that could not be fully understood without natural law. Even those who find legislation as inherently binding, Spooner contends, must utilise natural law reasoning when considering what it requires of them. Spooner makes this point by bringing attention to the indeterminacy of the words used in written legislation, arguing that the terms used can’t simply be taken at face value, because they often have a nearly infinite number of potential meanings. Author intent did nothing, in Spooner’s view, to substantially reduce this indeterminacy, both because the authors undoubtedly had several intents amongst themselves, and what they meant was not the same thing as what they said. In order to render a single intelligible meaning, then, Spooner argued that our reading must conform to the most morally acceptable interpretation of the text. Not only this, but several places within legislation, especially the Constitution, explicitly use normative terms, and in order to properly interpret those terms, we must have the proper normative judgments. Considering that many of these normative terms appear in statements that refer to the more general mission of the Constitution, this feeds back into how we should interpret the Constitution as a whole. Based on this moral reading, Spooner finds it textually impossible for the Constitution to authorise slavery, and develops alternative, more legally natural, interpretations for those provisions that appear to do so.

As mentioned earlier, Spooner does not believe that legislation can have authority when it conflicts natural law (Spooner, Natural Law, 67). Even so, he is quickly willing to bend on this in The Unconstitutionality of Slavery. He writes: “I shall not insist . . . upon the principle . . . that there can be no law contrary to natural right; but shall admit, for the sake of argument, that there may be such laws” (Spooner quoted in Barnett, Was Slavery Unconstitutional, pt. III). Instead, he draws upon a principle of interpretation laid down by Chief Justice John Marshall in United States v. Fisher that “where rights are infringed, where fundamental principles are overthrown, where the general system of 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” (Marshall quoted in Barnett, Was Slavery Unconstitutional, pt. III). From Marshall’s principle, he extrapolates “1st, that no intention, in violation of natural justice and natural right . . . can be ascribed to the Constitution, unless that intention is expressed in terms that are legally competent to express such an intention; and 2nd, that no terms, except those that are plenary, express, explicit, distinct, unequivocal, and to which no other meaning can be given, are legally competent to authorise or sanction anything contrary to natural right” (Spooner quoted in Barnett, Was Slavery Constitutional, pt. III). Holding that “all language must be construed ‘strictly’ in favour of natural right,” he went on to clarify that “the rule of law is materially different as to the terms necessary to legalise and sanction anything contrary to natural right, and those necessary to legalise things that are consistent with natural right. The latter may be sanctioned by natural implication and inference; the former only by inevitable implication or by language that is full, definite express, explicit, unequivocal, and whose unavoidable import is to sanction the specific wrong intended” (Spooner quoted in Barnett, Was Slavery Constitutional, pt. III).

Spooner’s interpretive approach and the methodology just outlined, however, did not stand or fall with his unique application of Marshall’s principle. His view also rested on a theory about how we are to read any sort of legislation. Spooner makes a point throughout the book that “the indeterminacy of written words . . . gave rise to the need for a theory of interpretation” (Barnett Was Slavery Constitutional, pt. II). The bare words of the Constitution had so many divergent possible meanings that “unless there were some rule of interpretation for determining which of these various meanings are the true ones, there could be no certainty at all as to the meaning of the statutes and constitutions themselves,” and such an indeterminacy would contradict the idea of law itself, even for those who held bare legislation as law (Spooner quoted in Barnett Was Slavery Constitutional, pt. II). The word “free” was a particularly salient example:

“Yet, the word free is capable of some ten or twenty different senses. So that, by changing the sense of that single word, some ten or twenty different Constitutions would be made out of the same written instrument. But there are, we will suppose, a thousand other words in the Constitution, each of which is capable of from two to ten different senses. So that, by changing the sense of only a single word at a time, several thousands of different Constitutions would be made” (Spooner quoted in Barnett, Was Slavery Constitutional, pt. II). One might think legislative intent is enough to narrow the scope of these meanings, but Spooner contends that this does little if anything to reduce the problem. No doubt the framers6 held different opinions amongst themselves as to what exactly they wanted to the Constitution to mean, so any “legislative intent” would be similarly divergent (Long, Inside and Outside, pg. 8). In order to render a single, unified meaning to the law, then, “the intentions [the Constitution as written] . . . expresses must . . . stand as the intentions of all, and be carried into law, in preference to any contrary intentions, that may have been separately, individually, and informally expressed by any one or all the parties on other occasions” (Spooner quoted in Long, Inside and Outside, pg. 8). Indeed, “as long as the parties acknowledge the instrument as being their contract, they are each and all estopped by it from saying that they have intentions adverse to it. Its intentions and their intentions are identical, else the parties individually contradict themselves” (Spooner quoted in Long, Inside and Outside, pg. 8). Furthermore, even if their intents were uniform, this would not render them the meaning of the Constitution. For if the Constitution is to bind, then it must bind apart from intent, or else “if every individual, after had agreed to a Constitution, could set up his own intentions, his own understandings of the instrument, or his own mental reservations, in opposition to the intentions expressed by the instrument itself, . . . the consequence would be, that it would have no obligation at all, as a mutual and binding contract” (Spooner quoted in Long, Inside and Outside, pg. 8). So, intent is out.

Spooner instead opts for a position in which “if legislators decree X without realising that X is in fact Y, then their decree must be interpreted as requiring Y even if the legislators never intended this” (Long, Inside and Outside, pg. 9). Thus, normative terms must be read in light of whatever they actually refer to, if they are to mean anything at all. If I say that I will give you what you are “due,” to fulfil such an obligation, I must give you what you are actually, in fact, due. To say that I will be “just” towards you, I must act in a way that is actually within the bounds of justice when interacting with you. If I enter into a contract to do any of these things, my own views about justice or what you are due should not help to adjudicate the dispute, for Spooner. What should be considered is only what you are actually due, or what it would actually mean to be just towards you. As Spooner writes in “Vices Are Not Crimes,” “[f]or a government to declare a vice to be a crime, and to punish it as such, is an attempt to falsify the very nature of things. It as absurd as it would be to declare truth to be falsehood, or falsehood truth” (Spooner “Vices Are Not Crimes,” pt. I). This gets us to something even broader when consider that the Constitution explicitly sets itself out to accomplish tasks named with normative terms like “Justice,” “perfect,” “domestic Tranquility,” “general Welfare,” “Blessings of Liberty,” etcetera (Constitution, Preamble). This means that we can extrapolate from the Constitution itself something like Spooner’s application of Marshall’s principle. Because when we’re in doubt about the intended reference of a term, we can turn to what the Constitution lists as its primary.

We may now turn to Spooner’s analysis of the Constitution’s relationship with slavery. As the Spooner-influenced philosopher of law Randy Barnett notes, “there are three passages in the original Constitution that are commonly thought to refer to and constitutionally legitimate slavery” (Barnett, Was Slavery Constitutional, pt. III). I will list them here in full, with Barnett’s brief descriptions of how each is taken to refer to slavery:

The first is in Article I, Section 2:

Representatives and direct Taxes shall be apportioned among the several State, which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. [53]

The term, “other Persons” in this clause is interpreted as referring to slaves. The second passage is also in Article 1, but in Section 9:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. [54]

The term “Importation of such Persons” in this clause is interpreted as to referring to slaves. The third passage is in Article IV, section 2:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due. [55]

The term “person held to Service or Labour” in this clause is interpreted as referring to slaves.” (Barnett, Was Slavery Constitutional, pt. III)

Notice that the words “slave” and “slavery” literally appear nowhere in the text. “Not even the name of the thing, alleged to be sanctioned, is given” (Spooner quoted in Barnett, Was Slavery Constitutional, pt. III). All the same, these references seem unavoidable at first glance. To begin with Spooner’s more naturally legal interpretations, notice that the alleged slaves are continually referred to as “persons.” Spooner contends that there is no textual basis for denying that “’the people of the United States,’” who in the preamble set out to “establish Justice . . . and secure the Blessings of Liberty” (Constitution, Preamble) “included the whole of the ten people of the United States. And if the whole of the people are parties to it, it must, if possible, be construed as so to make it such contract as each and every individual might reasonably agree to” (Spooner quoted in Barnett, Was Slavery Constitutional, pt. III). As Barnett relays Spooner’s analysis, “Persons who are a part of the People cannot be presumed to assent to a document that would hold them in bondage. And, short of this, the government of the United States would not rest on the consent of the governed” (Barnett, Was Slavery Constitutional, pt. III). Returning to the importance of normatively-charged terms, “more fundamentally, creatures who are persons are in possession of certain inalienable natural rights. This much was conceded by those advocates of slavery who were compelled to argue that slaves were not people. Thus, if slaves are not people, and if it is permissible to enslave another only if that other creature is not a person,

then [the passages referring to ‘persons’] cannot be referring to or sanctioning slavery, since they explicitly refer to ‘persons’ and persons cannot justly be held as slaves” (Barnett, Was Slavery Constitutional, pt. III).

Fair enough, but what about the fact that the first instance explicitly refers to these “Persons” in contrast to “free Persons”? If these persons are not a part of the set “free Persons,” they must obviously be unfree persons, and a statute referring to unfree persons must be referring to slaves. Barnett relays that “Spooner argues, at length and with considerable authority, that ‘English law had for centuries used the word ‘free’ as describing persons possessing citizenship, or some other franchise or peculiar privilege – as distinguished from aliens, and persons not possessed of such franchise or privilege’” (Barnett, Was Slavery Constitutional, pt. III). Construing “’free’ persons” as full citizens furthermore makes sense with the surrounding text: a resident alien, or “’partial citizen’ is counted as two-thirds a full citizen”7 (Barnett, Was Slavery Constitutional, pt. III). Viewing these vague “persons,” whose status those intending to mean slaves were too afraid to name, as resident aliens also makes sense of the “Importation of persons” clause: immigration (Barnett, Was Slavery Constitutional, pt. III). As for “person held to Service or Labour,” to be delivered to those “due” their labor, the word “due” is crucial. “Due” is a normative term, and “due” refers to obligations. No one can be obligated to serve another in the sense of slavery, so “due” cannot possibly refer to slavery. The worry that “persons held to Service or Labour” must, unavoidably, refer to slaves is quickly eliminated with a counter-example from Spooner: “a condemned criminal is ‘held to labor’ – yet he is not owned as property” (Spooner quoted in Barnett Was Slavery Constitutional, pt. III). Spooner then backs up his interpretations by pointing to other passages that would, logically speaking, outlaw slavery by necessity, from the writ of Habeas Corpus (Barnett Was Slavery Constitutional, pt. III) to “a republican form of government,” to the right of self-defence,8 to protections against “domestic violence,”9 (Long, Inside and Outside, pg. 6), and so on and so on.

Barnett reflects that “[a]lthough the founding generation is today often condemned for its refusal to abolish slavery, were Spooner’s interpretive method to have been adopted, slaveholders would have been the ones to condemn the framers for their failure of nerve. For they failed to legally sanction the crime they could not bring themselves to name” (Barnett Was Slavery Constitutional, pt. III). In discussing direct reference theory in application to Spooner’s theory of legal interpretation, Long (pg. 10) compares the public nature of language in interpretation to the public nature of the rules of a game like chess. Both involve combinations of actions taken by speakers or players and the public rules of the language or game in order to form meanings or moves. In the same way that one can accidentally facilitate in their own checkmate, so can one accidentally say something with a meaning they did not intend. Returning to the Garrisonian view that the Constitution was a “covenant with death” and an “agreement with hell,” this leads us to an interesting development on that metaphor. Assuming the morally charged nature of the Garrisonians’ attack on the Constitution as popularly conceived, at least in so far as it legitimated slavery,10 one might say that Spooner has allowed death and hell to slowly facilitate in their own checkmate. Regardless of their intentions, the words they took in order to authorise slavery led to a document demanding its immediate abolition.

Antonin Scalia’s defence of death and hell: The challenge of originalism

Though Supreme Court Justice Antonin Scalia cited Spooner’s The Unconstitutionality of Slavery in the Heller decision, it is unlikely that he would agree with the interpretive method employed in the book. In fact, a strong objection to the entire Spoonerite project might come formed from an originalist account of textualism such as the one outlined by Scalia in his “Common-Law Courts in a Civil Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws.” Scalia, agrees with views like Spooner’s that legislative intent is a worthless way of interpreting the text of statutes (Scalia, Common, 151). However, this does not lead Scalia to anything resembling the morally-charged view of legal interpretation that Spooner takes on. On the contrary, Scalia states “Congress can enact foolish statutes as well as wise ones, and it is not for the courts to decide which is which and rewrite the former” (Scalia, Common, 153). Scalia

then makes the distinction between textualist accounts that do accept moralised interpretations of the Constitution and those that don’t. In Dred Scott, the Supreme Court held that one could not be deprived of life, liberty, or property “without due process” in a moralised way – a moralised way that saw slave owners’ property rights over their slaves as sacrosanct11 (154). Rejecting any sort of moralised “due process” clause, Scalia states “Well, it may or may not be a good thing to guarantee additional liberties, but the Due Process Clause quite obviously does not bear that interpretation. By its inescapable terms, it guarantees only process. Property can be taken by the state; liberty can be taken; even life can be taken; but not without the process that our traditions require – notably, a valid enacted law and a fair trial” (Scalia, Common, 154-155).

The difference, then, between a Scalian and Spoonerite view of textualism, is that Scalia takes the words – including normative ones – to mean “how the text of the Constitution was originally understood” (Scalia, Common, 155). Once again, Scalia’s view is not one that bases the meaning of words in the intent of the author, but in what the words could have been reasonably been taken to mean at the time they were written. “What [Scalia] look[s] for in the Constitution is precisely what [he] look[s] for in a statute: the original meaning of the text, not what the original draftsmen intended” (155-156). Scalia describes “the Great Divide”on Constitutional interpretation as one that is “not between Framers’ intent and objective meaning, but rather . . . between original meaning (whether derived from Framers’ intent or not) and current meaning” (156). Applying this to Spooner’s concerns, the average person at the time the Constitution was written clearly understood “other persons” to refer to slaves. Knowing that those “persons” were not understood to be within the set “we the people,” those persons were not people by the original meaning. So on and so forth, and the Constitution of death and hell turns out to have been the proper interpretation at the time.

Such an objection and competing scheme of interpretation, however, ultimately fails. Philosopher of law Ronald Dworkin’s rejoinder to Scalia in many places sounds exactly like how we might imagine Spooner to have responded to such a view. Dworkin agrees (just as Spooner would have) with Scalia that what the text says, not the intent of the legislature, is what matters. He differs from Scalia, though, in just the way we’d expect Spooner to differ from Scalia. Dworkin draws a line between “two forms of originalism: ‘semantic’ originalism, which insists that the rights-granting clauses be read to say what those who made them intended to say, and ‘expectation’ originalism, which holds that these clauses should be understood to have the consequences that those who made them expected them to have” (Dworkin 162-163). A semantic originalist, for Dworkin, holds that the meaning of a text is what the actual referents of the words, independent of intention or expectation, are. An expectation originalist, by contrast, holds that the text refers to what everyone at the time it was written expected it to mean (Dworkin 163). The semantic originalist, furthermore, tends to view the Constitution as laying down general moral principles, rather than specific edicts. Those who put the idea of “equal protection of the laws,” for example, into the Constitution no doubt did not expect it to be one that would ban, if taken seriously, racial segregation. This does not change the fact, however, that this is in fact what “equal protection of the laws” means (163).

In a similar assessment of the normative content of “cruel and unusual punishment,” Dworkin rejects the view that such punishments refer specifically to “punishments generally thought to be cruel at the time they spoke,” and can therefore not be taken to ban capital punishment (163). Dworkin then shows the expectation originalist to be in something of a bind. For the text does not seem to admit of an expectationist reading, even under its own reasoning. If the meaning of “cruel and unusual punishment” were expected to mean “punishments widely regarded as cruel and unusual at the date of this enactment,” the framers of the Constitution would have said so (163). So it seems more sensible to suggest that what was laid down was “an abstract principle forbidding whatever punishments are in fact cruel and unusual” (163). Similarly, in the case of the First Amendment, Dworkin shows that the expected reading was in fact, the moralised “semantic originalist” meaning of a general principle. For when debating the issue later, past framers appealed not to their earlier expectations, but to things such as “the moral authority of Blackstone” and “the logic of freedom” (165).

Dworkin also gives another, very Spooneresque objection to Scalia’s expectation originalism. Assuming that normative claims refer to actual facts, a premise that Scalia is unlikely to reject, there is a fact of the matter about whether or not a given action is “just” or “unjust.” If there is a fact of the matter as to whether or not something is “cruel,” then the way that the term was used at the time of legislation is completely irrelevant. The legislation refers instead to what actually is or is not “cruel.” This is the case even if other parts of the legislation imply a failure to acknowledge the “cruelty” of a given punishment.12 The analogy Dworkin gives is that of a hypothetical piece of legislation that bans the “hunting of animals that are members of ‘endangered species’ and then, later . . . imposes special license requirements for hunting . . . minks” (Dworkin 163). This would clearly indicate that the legislators did not believe minks were endangered. If it turned out, though, that minks were endangered, the fact that the text overtly and unavoidably implies elsewhere that they were not endangered would not make them non-endangered for the purposes of legal interpretation (163). The same is true of capital punishment: if capital punishment is in fact cruel, then overt and unavoidable references to it elsewhere do not make it non-cruel (163).

Scalia’s response on this last point is puzzling. On one hand, he re-emphasises his expectation originalist reading: “what [the eighth amendment] . . . abstracts . . . is [a moral principle, but] not a moral principle that philosophers can play with in the future, but rather the existing society’s assessment of what is cruel. It means not . . . ‘whatever may be considered cruel from one generation to the next,’ but ‘what we would consider cruel today’; otherwise it would be no protection against the moral perceptions of a future, more brutal, generation. It is, in other words, rooted in the moral perceptions of the time” (Scalia, Rejoinder, 167). On the other hand, in responding to the “endangered species” analogy, Scalia states that “unlike animal populations, however, ‘moral principles,’ most of us think, are permanent’” (Scalia, Rejoinder, 167).

If moral principles are permanent, then they are no doubt the same today as they were in the eighteenth century. If they’re the same today as they were in the eighteenth century, then a moralised view like Dworkin’s (or Spooner’s) is not asking that we interpret legislation (Constitution included) in terms of “whatever may be considered cruel from one generation to the next,” but in terms of what actually is cruel. To reduce the conflict between Scalia and Dworkin’s interpretive methods to one of whether we should go by current moral standards or the moral standards of the time a text was written is to assume relativism. If we don’t assume relativism, then Dworkin’s appeal is not to uncritically accept current moral opinion, but to interpret the text according to the actual truth of those permanent moral principles. Assuming capital punishment is actually cruel, then, it has been unconstitutional ever since the Constitution was written. Moral opinion shifting against capital punishment, then, would not signify capital punishment becoming unconstitutional, but the general public realising that capital punishment is unconstitutional. In so far as we accept moral realism, then, an originalist appeal like Scalia’s fails, and would fail to answer Spooner’s reasoning behind the unconstitutionality of slavery. Having established Spooner’s natural law framework both as a way of evaluating positive legislation from the outside, and as a way of interpreting positive legislation from the inside, we can move from the issue of slavery to the issue of monopoly government.

The illegality of monopoly government

Given Spooner’s hardline view that natural law precedes positive legislation and rules out any legislation contrary to it, it is easy to see why he held monopoly government to be illegal. He did not, however, oppose establishing or maintaining legal systems. Spooner had high respect for the importance and need for institutions to judge disputes and enforce laws. In “Natural Law: The Science of Justice,” he writes that “[a]lthough it is the right of anybody and everybody – of any one man, or set of men, no less than another – to repel injustice, and compel justice, for themselves and for all who may be wronged, yet to avoid the errors that are liable to result from haste and passion, and that everybody, who desires it, may rest secure in the assurance of protection, without a resort to force, it is evidently desirable that men should associate, so far as they freely and voluntarily can do so, for the maintenance of justice among themselves and for mutual protection against other wrongdoers. It is also in the highest degree desirable that they should agree upon some plan or system of judicial proceedings, which in the trial of causes, should secure caution, deliberation, thorough investigation, and, as far as possible, freedom from every influence but the simple desire to do justice” (Spooner, Natural Law, 56). This – the need for third party arbitration, and the provision of the common defence – is fairly standard rationale for establishing a legal system, which for most people necessarily means establishing a monopoly government. Yet Spooner quickly clarifies that “such associations can be rightful and desirable only in so far as they are purely voluntary. No man can rightfully be coerced into joining one, or supporting one, against his will” (56). Given Spooner’s view that violating one’s rights to their person or property is naturally illegal, compelling them to join or support any institution charged with providing legal services or security is also illegal.

One might object on the grounds that, for reasons given by social contract theorists, participation in a monopoly government ultimately is voluntary, as long as that government is democratic. This is the sort of argument that Spooner devotes a most of his time to in No Treason: The Constitution of No Authority. To summarise the entirety of that book: what matters, morally, is not the “treason” de jure of going against a government that one has never entered into an actual contract with, but the “treason” de facto of going against contracts one has actually entered into. Actual, personal, individual consent is required, not the consent of others on your behalf. Spooner also considers this a necessary component of the concept of treason: “Clearly this individual consent is indispensable to the idea of treason; for if a man has never consented or agreed to support a government, he breaks no faith in refusing to support it. And if he makes war upon it, he does so as an open enemy, and not as a traitor that is, as a betrayer, or treacherous friend” (Spooner, No Treason, 7).

One might also object that any talk about individual rights, let alone of a legal system, presupposes monopoly government. It is beyond the scope of this paper to prove otherwise, but several aspects of law that many people today assume require monopoly government have existed in the past without it. Based upon those historical examples, some contemporary theorists have defended, in great detail, the possibility of such a system functioning in the modern world.13 If nothing else, Spooner’s arguments show that if it possible to have stable rights protection and enforcement without monopoly government, natural law requires such an arrangement.

Regarding the idea of monopoly government and the principle of overriding individual rights with counterfactual claims to consent, Spooner contends that “If that principle be not the principle of the Constitution, the fact should be known. If it be the principle of the Constitution, the Constitution itself should be at once overthrown” (Spooner, No Treason, 3). The next few sections will take on the task of making known an interpretation of the Constitution, based on the reasoning used by Spooner in The Unconstitutionality of Slavery, that does not include this principle. It will be argued that the Constitution does not, in fact, authorise monopoly government, but instead, a purely voluntary association.

Sections in the Constitution that seem to clearly authorise monopoly government

It will be useful at this point to list those places within the Constitution that, on face, appear to explicitly and unavoidably refer to the authorisation and construction of a monopoly government like the one we currently live under. In what follows, I will quote directly those sections that do so and note why they appear to unavoidably authorise monopoly government.

In the preamble, the text states that the document is “in Order to form a more perfect Union” (Constitution, Preamble). This appears to bind previously independent parties into a single, monopoly government. In article I, section 1, it is said that “all legislative Powers herein granted shall be vested in a Congress of the United States,” which appears to give a monopoly on determining the law. Article I, section 6 states that “Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same.” Saying that Senators and Representatives will receive compensation for their services by law seems to mean that they can forcibly acquire such compensation. Saying that they’re privileged from arrest appears to put them as legally superior to others, as well as require that no other legal institution may arrest them for a crime. In article I, section 7, it states that if a bill goes through the usual processes and succeeds, “it shall become a Law.” This reads as if it gives legislators the authority to create law.

Article I, section 8 includes several statements that appear to authorise monopoly government. It begins by saying “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare to the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” This appears to give congress the ability to compel others to pay for its services. “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” appears to authorise the power to impose limitations on trade. “[S]ecuring for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” appears to allow the power to grant forced monopolies in the form of intellectual property. “To declare War,” as well as “To raise and support Armies,” and “To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces;” appear to authorise the creation of a military force, typically a function of monopoly governments. “To provide for organising, arming, and disciplining, the Militia and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress” implies the ability to subordinate militias to the power of the United States, making it a monopoly government. “To exercise exclusive Legislation in all Cases whatsoever, over such District . . . as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States,” implies a territorial monopoly, which is the distinguishing feature of a monopoly government. Finally, it allows for making “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States,” not only authorises something its calling a “government,” but also allows that government to create any law deemed “necessary and proper” for the execution of its powers.

In article II, section 1, it states that “the executive Power shall be vested in a President of the United States of America.” This appears to give the said President executive status in a monopoly government. Section 2 states that this “President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” This, once again, appears to subordinate militias and defence agencies to the power of the President, making him the leader of a monopoly government. Article III, section 1, says that “the judicial Power of the United States, shall be vested in one supreme Court,” which appears to give a monopoly on final arbitration to this court. Section 3 defines treason, which appears to limit the power to oppose the United States. Article IV, section 4 requires that “The United States shall guarantee to every State in this Union a Republican Form of Government,” which appears to refer to those monopoly governments referred to as “republics.” In Article VI the Constitution declares of itself, and “the Laws of the United States which shall be made in Pursuance thereof” that it “shall be the supreme Law of the Land,” which seems to unavoidably declare that the Constitution authorises a monopoly government which may maintain territorial monopoly.

The amendments have less such provisions, but there’s still a couple worth noting. Amendment VI states that those accused of crimes may “have compulsory process for obtaining witnesses in his favour,” which implies the ability to force others to take part in the legal system. Amendment XVI says “Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

Sections of the Constitution that seem to clearly ban monopoly government

Yet there are several portions of the Constitution that would logically, if taken in a moralised way, ban monopoly government. The preamble declares that the purpose of the Constitution is, among other things, to “establish Justice, insure domestic Tranquility, . . . promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” If we assume a libertarian theory of justice, this means everything in the Constitution must be toward that end. A Constitution geared towards promoting those things, in so far as they are interpreted through a libertarian theory of justice, cannot, then, establish a monopoly government.

Article I, section 9, states that “No Title of Nobility shall be granted by the United States.” If no title of nobility is to be granted, then those in positions of authority within the United States government must also be legal equals to those outside of those positions. If they are to be legal equals, they can’t compel and command others by force. If they can’t compel and command others by force, they can’t set up or maintain a monopoly government. Article I, section 10 states that there shall be no “Law impairing the Obligation of Contracts.” If no laws impairing the obligation of contracts are to be banned, one must be allowed to contract with other institutions for the provision of legal and defence services. Article I, section 9 also says that “no State shall, without the Consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” Admittedly, it appears that different things might be the case if the “consent of congress” is granted, but otherwise, this demands that the forming of an alternative legal or defence institution (which is non-invasive) must be allowed.

Amendment I states that “Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This in particular is crucial. Obviously, it bans any attempt to stifle free association, which includes the voluntary formation of an alternative defence or legal institution. Also, though, it requires that people be allowed to “petition the Government for a redress of grievances.” If people are allowed to petition the government for a redress of grievances, they must be allowed to seek full restitution for crimes committed against them by the government. In order to do that, there must be a neutral third party arbiter to oversee such a trial. This requires that the government does not have a monopoly on its services.

Amendment II demands that “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.” If the right of the people to keep and bear arms shall not be infringed, then they must be allowed to amass the resources necessary for creating their own protection associations – “a well regulated Militia.” There may be some doubts here because of “necessary to the security of a free State,” but this will be addressed in the next section. Amendment IV states that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The word “reasonable” is normatively charged. Assuming a libertarian theory of justice, searches and seizures by the government unrelated to defending against a crime or seeking restitution for one are necessarily unreasonable. This also includes the forced collection of taxes, which seize one’s property.

Amendment V holds that no one shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Antonin Scalia’s thoughts to the contrary, the process that is due to one is a just process. If one’s life, liberty, or property must be taken in the course of protecting another person, it may be done. If one has the property of another person, it may be taken from them and returned to their victim. These are processes of the law that are due. Similarly, the only just compensation for private property being taken for public use is one that the other party agrees to. If they do not agree to the transaction, no compensation whatsoever could potentially be just, and therefore the property cannot be taken. This interpretation of the Fifth Amendment yields monopoly government impossible, because if it can’t engage in “unreasonable” searches or seizures, nor can it take property without “just” compensation, it can only engage with others through voluntary means.

Amendment VIII states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Just like our analysis of “due” and “unreasonable,” “excessive” is a normatively charged term. Any fines imposed, or bail required to leave jail, when either is for a non-crime (in Spooner’s sense) is necessarily excessive. Any punishments, furthermore, that go beyond whatever is necessary to seek restitution, is “cruel.” This places yet another strong presumption against monopoly government for the same reasons mentioned in our discussion of the Fifth Amendment. The Ninth Amendment takes this further, and explicitly reminds us that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This once again emphasises that when in doubt, our interpretations of the Constitution must be strictly construed in favour of pre-existing liberties. The Tenth Amendment does the same by saying that those “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, unless the Constitution unavoidably and explicitly gives the United States government a power, it does not have that power.

Amendment XIII states that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” While living under a monopoly government is not slavery, it is to some degree involuntary servitude, for the reasons like those outlined by Spooner in No Treason. If all innocent people cannot be forced to follow the commands of another person, there can be no monopoly government. If innocent people can be forced to follow the commands of a monopoly government, there exists involuntary servitude for those not convicted of crimes. Also, refusal to submit to the United States can’t be a crime in this context, either, because “crime” is a normatively charged word (Spooner, Vices Are Not Crimes). Amendment XIV repeats that no State “shall . . . deprive any person of life, liberty, or property, without due process of law;” and adds “nor deny to any person within its jurisdiction the equal protection of the laws.” This addition regarding equal protection of the laws calls once again for legal equality, which bans monopoly government for all of the reasons we mentioned in our discussion of the clause forbidding titles of nobility. There exist, then, several portions of the Constitution which give us reason to hold a strong presumption against monopoly government.

Not only do these portions of the Constitution give us reasons to hold a strong presumption against monopoly government, they seem primary. Most of them speak in unequivocal language, and refer to moral principles that guide the Constitution. By referring to moral principles that guide the Constitution, they give us a light as to how we might narrow down other possible meanings of less normatively-charged but still indeterminate phrases elsewhere in the Constitution. This means that if one of two clear statements in the Constitution is to bend, it will be ones like those in section VI of this paper, not those in the present section.

The Constitution made coherent: Liberty through integrity

Even still, we need some way to make sense of those passages that seem to clearly authorise monopoly government. To begin, it is perhaps necessary to address the use of the phrase “government” in the Constitution. If anything is to unequivocally, unavoidably, and without alternative interpretation, authorise a monopoly government, it would seem to be literally referring to what is being formed as “government.” Similarly, the continued use of the phrase “state,” especially in the name of that thing being formed, “the United States.” It’s not that simple, though.

While most anarchists today are likely to use the words “government” or “state” to refer specifically to a centralised, monopoly government, this has not always been the case. Auberon Herbert, nineteenth- century English anarchist in all but name supported institutions he refers to as “government” and “the state,” but they have certain characteristics that would make them decidedly not “governments” or “states” in contemporary discussions. Notably, Herbert holds that “[t]here is no moral foundation for taking taxes by force,” and that any involvement with a “government” must be voluntary (Herbert). Similarly, Gustave de Molinari, an early market anarchist and advocate of non-State legal institutions stated that “The future thus belongs neither to the absorption of society by the state, as the communists and collectivists suppose, nor to the suppression of the state, as the [non-market] anarchists and nihilists dream, but to the diffusion of the state within society” (Molinari quoted in Long “The Economic,” 1). Albert Jay Nock, twentieth-century American anarchist, also makes a distinction between “government” and “the State,” in which the former refers to any rights-protecting organisation, while the latter refers to monopoly government (Stromberg). Finally, Lysander Spooner himself makes this odd turn. As Roderick Long notes, throughout Spooner’s work, he uses the term “government” to refer to “voluntary security arrangements under anarchy,” which “derive their just powers from the contractual consent of their members” (Long 19). So, we are not forced by the text to interpret “government” and even “States” as anything beyond some sort of organisation formed for the purpose of protecting rights. Since we are not forced by the text to interpret it as anything beyond that, and we are forced by our interpretive method to interpret strictly in favour of natural rights, that is how we will interpret the words “government” and “state.” Since “state” is perhaps the more contentious of the two, we can further stipulate that “United States” simply is the proper name of the rights protection agency in question, and that its subdivisions, it refers to as “States.” These have “jurisdictions,” but not in the sense of territorial monopolies, and instead merely in the sense that any branch of any organisation has a “jurisdiction.”

Now with what exactly it is the Constitution is forming in mind, it becomes easier to see how it doesn’t form what most people think it does. The “more perfect Union” referred to in the preamble just means a more efficiently run organisation. The “all legislative Powers” referred to in article I, section 1, refers only to “all legislative powers” for the purpose of the United States’s own policies. As for legislators receiving compensation “by Law,” of course they receive compensation by law. Specifying legal conventions is their profession, and that is how they make money. No compulsion is implied. Their “privilege from arrest” only applies to agents of the United States. All that saying a passed bill will “become a Law” means is that it specifies legal conventions.

In Article I, section 8 all that the power to “lay and collect Taxes, Duties, Imposts, and Excises” means is that the United States is allowed to charge for its services. This interpretation is assisted by how the section continues: “to pay the Debts and provide for the common Defence and general Welfare to the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” The reason “common Defence . . . to the United States” reveals that those being “taxed” are those who have voluntarily associated themselves with the United States, or else this defence would not be “common.” Saying that these will be “uniform throughout the United States” shows even more specifically that the charges apply only to those within (associated with) the United States. It is not “uniform throughout all those being made to pay,” nor is it “uniform throughout the United States’s territorial monopoly,” it is “uniform throughout the United States.” The clause “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” authorises the United States’ ability to control trade with itself and those foreign Nations and/or Indian Tribes, though it does not authorise authority to control anyone else’s trade activities. It regulates trade “among the several States” because the “several States” are subdivisions of itself.
“[S]ecuring for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” only makes sure that those authors and inventors employed by the United States receives compensation for their work. It does not make an intellectual property claim that other parties must be made to respect. The several sections allowing for declaring war and raising military forces refer to allowing for the creation of a more thorough defence force in the event that a rogue defence agency or a nation-state decides to attack. The key phrase in “To provide for organising, arming, and disciplining, the Militia and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress” is “as may be employed in the Service of the United States.” Only those militias actually being employed by the United States may be under its governance. “To exercise exclusive Legislation in all Cases whatsoever, over such District . . . as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States,” only stipulates that they retain property rights over their headquarters. Allows for making “all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States,” only authorises just that – all legislation that would be necessary and proper (normatively charged terms) to execute these other Powers, which do not form a monopoly government. Anything that formed a monopoly government would neither be necessary to accomplish any of the previous tasks, nor would it be proper.

The “executive Power” that “shall be vested in a President of the United States of America” in article II, section 1, obviously only refers to a head of the organisation. Just as earlier, the key phrase in “President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Is “when called into the actual Service of the United States.” When they are not “called into the actual service” – i.e., in a voluntary contractual agreement – the President has no power to arbitrarily command them. When article III, section 1 says that “the judicial Power of the United States, shall be vested in one supreme Court,” this just means that the judicial power of the United States shall be vested therein, and says nothing of anyone else’s judicial power. Treason only refers to what Spooner called “treason in fact.” The requirement in article IV, section 4 that “The United States shall guarantee to every State in this Union a Republican Form of Government,” does not mean that each state has is a monopoly government in the form of a Republic. Instead, it means that the organisational structure of each state will resemble those of republics. Perhaps most interesting is Article VI. For when the Constitution says that it and “the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land,” there are two ways of reading this claim. One is to say that “whatever the Constitution and the legislation it authorises are, are therefore the law of the land.” The other is to say “whatever the law of the land is, is therefore how you should interpret the Constitution and the legislation it authorises.” So in fact, this clause that seems to write in a sort of legal positivism is quickly and immediately reversible to say that only the law of the land (natural law) can be taken as the meaning of the Constitution.

When amendment VI gives those accused of crimes the right to “have compulsory process for obtaining witnesses in his favour,” it only gives the accused the right to compel those who are employed by the United States. As for Amendment XVI, “Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration” just means that charges for the United States’s services can be taken out of the paycheques of those customers who are also employees of the United States.

Conclusion

What’s the point of all this? It might be the case that natural law dictates that people have an ethical obligation to resist monopoly government and any other violation of natural rights. It might further be the case that legislation should be interpreted through natural law. Anyone, though, who argued a case on such grounds would, as a best case scenario, be laughed out of court. Judges who made any decisions on these grounds would be acting very, very independently, to put it lightly. So while this paper does seriously contend that a natural law view like Spooner’s is correct, and that legislation (contracts included) should be interpreted in such terms, that’s not the main point. The main point is to underscore a conceptual incoherence in the Constitution, and non-libertarian legal systems more generally.

Even robustly non-libertarian readers would likely want to claim that when the Constitution talks about securing “the Blessings of Liberty,” outlawing “involuntary servitude,” ensuring “equal protection under the laws,” or barring the taking of “life, liberty, or property without the due process of law,” that these words mean things. Yet if they do mean anything serious, and can be allowed to reach their logical conclusions, they rule out non-libertarian legal systems. This poses a difficulty for the average believer in the Constitution, who wants both those strictly defended liberties and the non-libertarian legal order the rest of the Constitution is enforced as authorising (without the sort of reading employed here).

Detailing how similar, libertarian undercurrents can be found in the principles behind even the most non-libertarian legal institutions, Roderick Long wonders why those undercurrents might be so prevalent. “Perhaps the answer is that the libertarian aspects are essential to a legal system while the unlibertarian aspects are accidental” (Long, Inside and Outside, pg. 30). When we think of the tasks ostensibly common to all legal systems, this seems plausible. Most, if not all, legal systems at their core are charged with the mission of protecting the person and property of its citizenry. Yet once they use legislative force to attain other ends, they run into contradictions. Spooner refers to the example we have looked at specifically – monopoly government – as a contradiction for a legal system in Natural Law: The Science of Justice:

“Certainly no man can rightfully be required to join, or support, an association whose protection he does not desire. Nor can any man be reasonable or rightfully expected to join, or support, any association whose plans or method of proceeding, he does not approve, as likely to accomplish its professed purpose of maintaining justice, and at the same time itself avoid doing injustice. To join, or support, one that would, in his opinion, be inefficient, would be absurd. To join or support one that, in his opinion, would itself do injustice, would be criminal” (56-57).

Randy Barnett emphasises compossibility as an advantage of libertarian rights theory on a more general level, and notes the contradictions that must inevitably come up if one accepts a different view:

“It is commonly thought, however, that valid rights may conflict with each other. According to this view, the responsibility of the political and legal processes is to mediate between conflicting rights; rights are mere claims, which must be assessed and compared with each other rather than the conceptual means by which the validity of claims are assessed. This view results from an inflation of rights. The more different kinds of rights that are recognised, the more there is potential for conflict between alleged rights and the more that rights start to look like mere claims rather than valid or dispositive claims. If asserting a right does not establish the validity of one’s claim over that of another then some other way must then be found to settle the conflict among competing rights. Obviously, rights themselves provide no basis for such a settlement” (Barnett, Structure, 91).

The right to security in one’s own person was clearly a more fundamental right than the right to own another person. This was why Spooner was able to pull such crisply anti-slavery sentiment from a document intended to found a legal system that authorised slavery. Without the sentiments that logically led to his anti- slavery conclusions, it would not be a legal system. The same is true, I have hoped to show, of even a much more radical claim. In so far as a document establishes the necessary conditions to founding a legal system, it also establishes principles that logically lead themselves to rejecting monopoly government. In other words, all constitutions set up to institutionalise one sort of rights violation or another, those “covenants with death and agreements with hell,” are ultimately doomed to fail.

Notes

1. “Monopoly government,” here, will refer specifically to any institution which maintains an enforced monopoly on the provision of legal services (or at least the right to be “final arbiter” in any dispute) in a given area. This might be described elsewhere as simply “government,” or a “State,” but as we will explain below, for the purposes of this particular paper, we specifically use the term “monopoly government” when referring to such an institution.
2. Admittedly, this is a fairly large assumption. The reader can take the paper’s current size as a justification of that leap. That being said, a defence of sorts will be offered (indirectly) in the conclusion.
3. Notice, by the way, that the title claims that vices are not crimes, not simply that they should not be crimes.
4. Keeping in line with Spooner’s views on legal interpretation, we can take him here to obviously refer to legislation out of step with natural law, rather than legislation in line with natural law. Legislation in line with natural law, he does not take to be evil, but superfluous. Indeed, “if legislation be consistent with natural justice, and the natural or intrinsic obligation of the contract of government, it is obligatory: if not, not” (Spooner quoted in Barnett Was Slavery Constitutional, pt. II)
5. This is in reference to the William Lloyd Garrison quote mentioned at the beginning of the paper.
6. This problem is actually even more extreme for Spooner, as he believed that if any intent were to matter, it would be that of the ratifiers (Long, Inside and Outside, pg. 8).
7. No doubt even this interpretation, as it presupposes an inequality of liberty between full citizens and resident aliens, does not fully align with Spooner’s view of natural law as libertarian justice. However, it is also no doubt a considerably more naturally legal reading than one that authorises slavery.
8. Interestingly, Spooner’s reasoning here was cited by Scalia in the Heller decision.
9. Ironically, “domestic violence” was likely intended as a reference to slave revolts.
10. Here I make the further assumption that contemporary readers are willing to sign onto such an assumption.
11. The conclusion in Dred Scott is obviously not one that Spooner agreed with, but Scalia’s point applies as much to Spooner’s abolitionist view of the moralised Constitution as it would a pro-slavery one.
12. Here, Dworkin’s interpretive method is actually more radical than Spooner’s. Spooner’s does not seem to allow for moralised interpretations to override overt and unavoidable references to the naturally illegal aspects in a piece of legislation. If Spooner were to sign on to this part of Dworkin’s interpretive method, perhaps his case in The Unconstitutionality of Slavery would have been much shorter.
13. For the definitive anthology on such proposals, see Stringham 2007. Also see the later chapters of Barnett 1998.

Works Cited

Barnett, Randy E. The Structure of Liberty: Justice and the Rule of Law. Oxford: Clarendon, 1998.

Barnett, Randy E. “Was Slavery Unconstitutional Before the Thirteenth Amendment?: Lysander Spooner’s Theory of Interpretation.” Pacific Law Journal (1997): n. pag. Lysanderspooner.org.

Dworkin, Ronald. Comment. 161-69.

Herbert, Auberon. “ESSAY THREE. A POLITICIAN IN SIGHT OF HAVEN – Auberon Herbert, The Right and Wrong of Compulsion by the State and Other Essays (1978 Ed.) [1885].” Online Library of Liberty. Liberty Fund, n.d. Web. 12 May 2013.

Long, Roderick. Inside and Outside Spooner’s Natural Law Jurisprudence. Workshop on Natural Law and the Foundations of Liberalism: 23rd IVR World Congress of Philosophy, Krakow, 27 Dec. 2007. 10 May 2013.

Long, Roderick. The Economic Dissolution of the State. 2011 Prague Conference on Political Economy, 2011. 12 May 2013.

Scalia, Antonin. Common Law Courts in a Civil Law System: The Role of the United States Federal Courts in Interpreting the Constitution and Laws. N.p.: n.p., n.d. 151-60.

Spooner, Lysander. “Natural Law: The Science of Justice.” (1882): n. pag. Rpt. in Left and Right: A Journal of Libertarian Thought. 1st ed. Vol. 3. New York: n.p., 1967. 53-67.

Spooner, Lysander. Vices Are Not Crimes. 1873.

Spooner, Lysander. No Treason: The Constitution of No Authority. Boston: 1867.

Stringham, Edward, ed. Anarchy and the Law. Independent Institute, 2007.

Stromberg, Joseph. “Albert Jay Nock and Alternative History.” The Freeman. Foundation for Economic Education, 1 Nov. 2008. Web. 12 May 2013.

The Constitution of the United States. National Center for Constitutional Studies, 2009 (1787).