Posted by Randy Barnett:
Lysander Spooner's Originalism:
http://volokh.com/archives/archive_2009_02_08-2009_02_14.shtml#1234455083
Readers of this blog know I have a thing for Lysander Spooner. This
traces back to my reading [1]No Treason: The Constitution of No
Authority while an undergraduate at Northwestern. Much later as a law
professor, I became acquainted with his other works. Indeed, it was
his book, [2]The Unconstitutionality of Slavery, that started my
movement towards originalism. This movement eventually culminated in
[3]Restoring the Lost Constitution: The Presumption of Liberty, which
I dedicated to James Madison and Lysander Spooner. Now Helen Knowles,
a political science professor at SUNY Oswego and an emerging Spooner
scholar, has produced a new work on Spooner's debate with Wendell
Phillips over the meaning of the Constitution. Her paper [4]Securing
the 'Blessings of Liberty' for All: Lysander Spooner's Originalism can
be downloaded from SSRN. Here is the abstract:
On January 1, 1808, legislation made it illegal to import slaves
into the United States; eighteen days later, in Athol,
Massachusetts, Lysander Spooner was born. In terms of their
influence on the abolition of slavery, only the first of these
events has gained widespread recognition. The importance of
Spooner's reading of the U.S. Constitution as a document that did
not sanction slavery has been overlooked; his abolitionist work
continues to be disparaged as the incoherent ramblings of an
unserious polemicist. As this essay demonstrates, this conclusion
about Spooner's mid-nineteenth century work, The
Unconstitutionality of Slavery, is unfortunate, because his
observations about the relationship between law and individual
liberty are timeless.
Drawing on his writings (including a previously unpublished
manuscript) and voluminous correspondence, with supporting material
from abolitionist newspapers and periodicals, I focus on Spooner's
contribution to a mid-1840s debate about constitutional
interpretation. Spooner's natural-rights based reading of the
Constitution's original meaning never matched the popularity of
fellow abolitionist Wendell Phillips's emphasis on the Framers'
original pro-slavery intentions. Phillips won the day with
conclusions that seemed to vindicate the Garrisonian condemnation
of the Constitution as a covenant with death, and an agreement with
hell. However, Phillips's conclusions about the law were
underpinned by a misleading emphasis on political history. They
could not match the fiercely logical, and legal emphasis of
Spooner's conclusions. In this respect, only Spooner offered an
approach faithful to the Constitution's guarantee to protect the
Blessings of Liberty.
I am now in the middle of writing a new book on the original meaning
of the 9th & 14th Amendments, and the proper role of the courts in
using these Amendments to protect liberty. As part of my research on
the 14th Amendment, I have been reading other abolitionist
constitutional theorists including William Goodell, Theodore Dwight
Weld, James Birney, Joel Tiffany, and Frederick Douglass. All but
Douglass were lawyers. I am finding that Spooner was influential on
them all and that, taken as a whole, their works are both more
persuasive and sophisticated than they are typically credited. Indeed,
I find them more careful and powerfully reasoned than most of today's
constitutional analysis. Not only that, but there is a direct
connection--via John Bingham--between the text of the Fourteenth
Amendment and these abolitionist writers' arguments concerning (a)
U.S. citizenship, (b) the Privileges and Immunities Clause of Article
IV, (c) the Due Process Clause of the Fifth Amendment, and (d) the
duty of protection that every government owes those from whom it
demands obedience. These four lines of argument led to the four
working parts of Section 1 of the Fourteenth Amendment, and helps
explain their original public meaning. This connection was first
described by Jacobus tenBroek in his masterly little book, [5]Equal
Under Law, which regrettably is out of print.
References
1. http://www.lysanderspooner.org/notreason.htm#no6
2. http://www.lysanderspooner.org/UnconstitutionalityOfSlaveryContents.htm
3.
http://www.amazon.com/gp/product/0691123764?ie=UTF8&tag=randyebarnetbost&link_code=as3&camp=211189&creative=373489&creativeASIN=0691123764
4. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1335500
5.
http://www.amazon.com/gp/product/B000LUDNNK?ie=UTF8&tag=randyebarnetbost&link_code=as3&camp=211189&creative=373489&creativeASIN=B000LUDNNK
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
