Spooner the Constitutionalist
By Alberto Mingardi
I think the “Liberty Matters” discussions, provided by our sister-website the Online Library of Liberty, cannot be praised highly enough. If the Internet and the blogosphere don’t have a shortage of libertarian themes and of many genuinely interesting and original libertarian contributions to current debates, “Liberty Matters” is an outstanding example of how the world-wide web can be used in the service of scholarship.
“LibertyMatters” is currently hosting a conversation on Lysander Spooner, who is a libertarian classic but is not known as such by the wider audience. The first essay is by Randy Barnett, who, in addition to being a prominent constitutional scholar, has long been interested in Spooner (he also set up the website www.lysanderspooner.org). The discussion will soon be joined by Roderick Long, Aeon Skoble and Matt Zwolinski.
Spooner’s most renowned work, “No Treason,” is a powerful attack on the idea that a Constitution is a “social contract”. Contracts are precise, clear agreements among consenting parties. But nobody ever “signed” the social contract. Thus Spooner maintained that the Constitution has
no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children.
Libertarians like Murray Rothbard rejoiced in Spooner’s clarity and realism. Libertarianism of the anarchist kind is, in a way, a reaction against classical liberals’ great hope in constitutionalism. Constitutions were supposed to check political power and “regulate” rulers, so to say. But the 20th century proved political power and statism capable of growing whatever the constitutional proviso. Constitutions increasingly appeared, to quote Anthony de Jasay, to be a chastity belt whose key was always within the wearer’s reach.
And yet Barnett’s essay concerns Spooner not as a critic of constitutionalism: but as a defender of (a version of) it. Barnett focuses on “The Unconstitutionality of Slavery“, deemed as “the most famous antislavery analysis of the Constitution.” Spooner was a radical abolitionist and claimed the Constitution to his side. There are many things that are surprising and novel (at least to me) in Barnett’s splendid essay: among others, a comparison between Spooner and Constitutional Justice Antonin Scalia. I don’t want to spoil the pleasure of reading Barnett and Spooner. It’s well worth your time.