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Seeing the Light: Lysander Spooner's Increasingly Popular Constitutionalism

Published online by Cambridge University Press:  23 July 2013


On Tuesday July 4, 1854, it was hot and humid at Harmony Grove; “the heat of the weather…was extreme.” But this did not deter a large audience from gathering at this location in Framingham, Massachusetts. This was the spot upon which many of them had assembled, under the organization of the Massachusetts Anti-Slavery Society, for the past 8 years. They came by crowded railroad cars (from Boston, Milford, and Worcester), and by horse and carriage from many other surrounding towns, eager to hear speeches by prominent members of the antislavery community. William Lloyd Garrison was not the first to speak, but his actions were the most memorable. Addressing the audience, Garrison held up, and systematically burned, three documents: a copy of the 1850 Fugitive Slave Act; a copy of a recent court decision that ordered the free state of Massachusetts to use its facilities to assist in the capture of fugitive slaves; and a copy of the United States Constitution. This was no mere symbolic act; it conveyed an important part of the Garrisonian argument. Namely, that the Constitution was “a covenant with death, and an agreement with hell.”

Copyright © the American Society for Legal History, Inc. 2013 

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1. “The Meeting at Framingham,” Liberator, July 7, 1854, 106.

2. Phillips, Wendell, Review of Lysander Spooner's Essay on the Unconstitutionality of Slavery. Reprinted From The “Anti-Slavery Standard,” with Additions. (1847; reprint, New York: Arno Press & The New York Times, 1969), 3Google Scholar.

3. Finkelman, Paul, “Affirmative Action for the Master Class: The Creation of the Proslavery Constitution,” Akron Law Review 32 (1999): 438 n. 59Google Scholar; and Finkelman, Paul, Slavery and the Founders: Race and Liberty in the Age of Jefferson, 2nd ed. (Armonk, NY: ME Sharpe, 2001)Google Scholar, 201 n. 33.

4. While it is difficult to identify, with certainty, the academic literary origins of this movement, a good case can be made that it began in earnest in 1988 with the publication of Levinson, Sanford, Constitutional Faith (Princeton: Princeton University Press, 1988)Google Scholar. This argument is made in Strang, Lee J., “Originalism as Popular Constitutionalism?: Theoretical Possibilities and Practical Differences,” Notre Dame Law Review 87 (2011): 259Google Scholar. If one had to identify “great books” of this movement, the two at the top of the list would be (in no particular order) Tushnet, Mark, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999)Google Scholar and Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004)Google Scholar.

5. Kramer, Larry D., “Undercover Anti-Populism,” Fordham Law Review 73 (2005): 1344Google Scholar; Kramer, The People Themselves; and Tushnet, Mark, “Popular Constitutionalism as Political Law,” Chicago-Kent Law Review 81 (2006): 999Google Scholar.

6. Tushnet, Taking the Constitution Away from the Courts.

7. Newman, Richard S., The Transformation of American Abolitionism: Fighting Slavery in the Early Republic (Chapel Hill: University of North Carolina Press, 2002)Google Scholar, 6, 61.

8. Ibid., 2, 7, 175.

9. Ibid., 6, 149.

10. This list is only meant to represent the principal positions in the antislavery constitutionalism debate, taken by those individuals for whom abolitionist work could be considered the primary activity in which they were engaged at the time when they took one of these positions. It is not meant to represent, for example, the views on the Constitution that were held and expressed by politicians in the course of their debates on major issues such as slavery and territorial expansion.

11. Knowles, Helen J., “The Constitution and Slavery: A Special Relationship,” Slavery and Abolition 28 (2007): 309–28CrossRefGoogle Scholar.

12. Although it should be noted that it was support for the radical tactics of Garrison and his followers that was fading; the immediate emancipation principles for which they stood remained popular. As Julie Roy Jeffrey points out, in the 1830s, the predominant position for the majority of female abolitionists was disagreement with the radical Garrisonian tactics but support for immediatism. Jeffrey, Julie Roy, The Great Silent Army of Abolitionism: Ordinary Women in the Antislavery Movement (Chapel Hill: University of North Carolina Press, 1998)Google Scholar.

13. Mellen, George Washington Frost, An Argument on the Unconstitutionality of Slavery, Embracing an Abstract of the Proceedings of the National and State Conventions on This Subject (1841; reprint, New York: AMS, 1973)Google Scholar. On Mellen and his work, see Stanton, Henry B., Random Recollections, 2nd ed. (New York: Macgowan & Slipper, 1886), 76Google Scholar; Wiecek, William M., The Sources of Antislavery Constitutionalism in America, 1760–1848 (Ithaca, NY: Cornell University Press, 1977), 256Google Scholar; and Tatham, David, “An Unrecorded Winslow Homer Lithograph,” American Art Journal 19 (1987): 7576CrossRefGoogle Scholar.

14. Shively, Charles, “Biography,” in The Collected Works of Lysander Spooner, ed. Shively, Charles (Weston, MA: M&S Press, 1971), 1:1562Google Scholar; and Lysander Spooner, The Unconstitutionality of Slavery (1845) and The Unconstitutionality of Slavery: Part Second (1847), both in The Collected Works, vol. 4.

15. Phillips, Wendell, The Constitution: A Pro-Slavery Compact––Selections from the Madison Papers, &C. (1844; reprint, New York: Negro Universities Press, 1969)Google Scholar; and Stanley Burton Bernstein, “Abolitionist Readings of the Constitution” (PhD diss., Harvard University, 1969), 148. Spooner did make specific references to Phillips's work when he published the second part of The Unconstitutionality of Slavery in 1847. Spooner, Part Second, 155–56, 243.

16. Phillips, A Pro-Slavery Compact, 3.

17. Spooner, The Unconstitutionality of Slavery, 5; and Spooner, Part Second, 155.

18. United States v. Fisher, 6 U.S. (2 Cranch) 358, 390 (1805), quoted in Spooner, The Unconstitutionality of Slavery, 18–19.

19. Spooner, The Unconstitutionality of Slavery, 119. Alvan Stewart made a similar comment in his oral argument in two habeas corpus cases before the Supreme Court of New Jersey in May, 1845. If the proslavery reading of the Constitution was true, he argued, then “[m]ost of the thirteen States, on organizing the conventions of 1788, for rejection or adoption, would have resolved to have let the common hangman hang this Constitution on the gallows, with caricatures of the leaders in the convention of 1787, and closed the scene by burning it up, and have adjourned sine die. Another convention of the United States would have been called by an indignant people, and the first article would have abolished slavery, by name, in the United States, as an everlasting disturbing cause, no longer to be trusted to disgrace our soil.” Stewart, Alvan, “Argument, on the Question Whether the New Constitution of 1844 Abolished Slavery in New Jersey (1845),” in Writings and Speeches of Alvan Stewart, on Slavery, ed. Marsh, Luther Rawson (1860; reprint, New York: Negro Universities Press, 1969), 342Google Scholar.

20. Cover, Robert M., Justice Accused: Antislavery and the Judicial Process (New Haven: Yale University Press, 1975), 156, 158Google Scholar.

21. Spooner, The Unconstitutionality of Slavery, 17.

22. Ibid.

23. These rules received their most extensive treatment in Spooner, Part Second, 157–205.

24. Spooner, The Unconstitutionality of Slavery, 61.

25. However, this does not mean that he believed a legal education made you receptive to his arguments. It was pointless, for example, to appeal to someone such as Wendell Phillips. As he wrote in a letter to George Bradburn: “I concur with you, in part, as to the cause of Phillips's attack on my book. But an additional reason for it was that he is no lawyer. I saw some ridiculous evidences of it on one other occasion. He lacks one indispensable requisite of a lawyer––to wit, a knowledge of the purpose of law. It is an old saying that a man cannot know the law, until he knows the reason of the law. There are any number of such pettifoggers as Phillips––they are called case lawyers––that is, they remember how particular questions were decided in such and such instances––and that is about all they know––they cannot tell you whether the decisions were right or wrong––they take their law at second hand, and take it for granted that decisions are correct. For the worst of any ruling ideas, they are continually misled by words.” If only, he proceeded to lament, people would see the importance of the words that made up the proper rules of interpretation. “Phillips,” continued Spooner, “seems to think that it is allowable to give a word as many meanings in the law, as it has in the dictionary, in the poets, or in the Bible: (you know he quoted the Bible) without any regard to the effect upon justice and right; that the meaning to be given to a word, in any particular instance, is entirely arbitrary––that the court may give it such meaning as they please, and that thenceforth that is its true meaning.” Letter from Spooner to George Bradburn, March 5, 1846, available from the digitized New-York Historical Society collection, (hereafter N-YHS online).

26. For example, see the letter from Spooner to Gerrit Smith, April 23, 1850 (N-YHS online), in which Spooner says: “I have received a copy of what purports to be ‘Gerrit Smith's Constitutional Argument.’ [He is referring to Smith, Gerrit, Constitutional Argument Against Slavery (Utica, NY: Jackson and Chaplin, 1844)Google Scholar]. I consider a large portion of it a flagrant violation of my copyright, and I do not think that the requests of others that you would publish my arguments under your own name, afford any justification for your doing so. This injustice to me is increased by the loose, crude, and imperfect mode in which you have stated my argument – for your readers will naturally infer from your declaration that you are indebted to me for them, that I have stated them in the same careless manner as yourself.” Also see the letter from Spooner to William Goodell, December 27, 1853 (11-9 - Correspondence - Lysander Spooner; The William Goodell Family Papers, Berea College Special Collections & Archives, Berea, KY), in which Goodell stood accused of infringing Spooner's “copyright…on the same subject” in the “Legal Tenure of Slavery” series of articles that he published in the National Era newspaper between 1853 and 1855.

27. Letters from Spooner to Bradburn, October 27 and November 19, 1845 (N-YHS online). Ten years later, he again advocated distribution to members of Congress, but was extremely skeptical that it would make anything other than good fuel for their fireplaces. Letter from Spooner to Smith, November 2, 1855 (N-YHS online).

28. Letter from Spooner to Smith, April 20, 1847 (N-YHS online).

29. Letter from Spooner to Smith, March 14, 1847 (N-YHS online).

30. Ibid.

31. Spooner gives few clues about the intended content of the other parts of his treatise, which were never published. Letter from Spooner to Smith, March 13, 1848 (N-YHS online). I discuss this in Knowles, Helen J., “Securing the ‘Blessings of Liberty’ for All: Lysander Spooner's Originalism,” NYU Journal of Law & Liberty 5 (2010): 3462Google Scholar.

32. Letter from Spooner to Smith, March 13, 1848 (N-YHS online); Letter from Spooner to Smith, April 20, 1847 (N-YHS online).

33. Generally, see McKivigan, John R. and Harrold, Stanley, Antislavery Violence: Sectional, Racial, and Cultural Conflict in Antebellum America (Knoxville, TN: University of Tennessee Press, 1999)Google Scholar; Dillon, Merton L., Slavery Attacked: Southern Slaves and Their Allies (Baton Rouge, LA: Louisiana State University Press, 1990)Google Scholar; and Friedman, Lawrence J., Gregarious Saints: Self and Community in American Abolitionism, 1830–1870 (New York: Cambridge University Press, 1982)Google Scholar. Also instructive on this point, especially regarding its relationship to the evolution of antislavery thought from the founding of the American Republic, are the essays in Mason, Matthew and Hammond, John Craig, eds. Contesting Slavery: The Politics of Bondage and Freedom in the New American Nation (Charlottesville, VA: University of Virginia Press, 2011)Google Scholar.

34. Stewart, James Brewer, Holy Warriors: The Abolitionists and American Slavery, revised ed. (New York: Hill and Wang, 1997), 156Google Scholar (quotation), and, generally, ch. 7.

35. Cover, Justice Accused, 60.

36. Ibid., 62.

37. Ibid., 121.

38. Lysander Spooner, A Defence for Fugitive Slaves, against the Acts of Congress of February 12, 1793, and September 18, 1850 (1850), in The Collected Works, vol. 4.

39. Pease, Jane H. and Pease, William H., “Confrontation and Abolition in the 1850s,” Journal of American History 58 (1972): 923CrossRefGoogle Scholar.

40. Spooner, A Defence for Fugitive Slaves, 6–26.

41. Ibid., ch. 2.

42. Ibid., 21, 30; 41 U.S. (16 Pet.) 539 (1842).

43. Spooner, A Defence for Fugitive Slaves, 27–29 (emphasis added). Spooner clearly interpreted the Second Amendment as providing for an individualized right to bear arms.

44. For different discussions of this see, for example, Tushnet, Taking the Constitution Away from the Courts, 30–31; Siegel, Reva B., “Dead or Alive: Originalism as Popular Constitutionalism in Heller,” Harvard Law Review 122 (2008): 191245Google Scholar; and Cornell, Saul, “Mobs, Militias, and Magistrates: Popular Constitutionalism and the Whiskey Rebellion,” Chicago-Kent Law Review 81 (2006): 883903Google Scholar.

45. Lysander Spooner, “An Essay on the Trial by Jury” (1852), in The Collected Works, vol. 1.

46. Letter from Spooner to George Bradburn, September 20, 1852 (N-YHS online). Also see Lysander Spooner to George Bradburn, June 28, 1852 (N-YHS online). For academic references to the importance of An Essay on the Trial by Jury, see Shone, Steve J., “Lysander Spooner, Jury Nullification, and Magna Carta,” Quinnipiac Law Review 22 (2004): 651–69Google Scholar; Conrad, Clay S., “Redefining the Role of the Jury: Scapegoating the Jury,” Cornell Journal of Law and Public Policy 7 (1997): 10 n. 23Google Scholar; and Fairfax, Roger A. Jr., “Harmless Constitutional Error and the Institutional Significance of the Jury,” Fordham Law Review 76 (2008): 2054 n. 148Google Scholar.

47. Kramer, The People Themselves, 157 (and more generally, ch. 6).

48. Spooner, A Defence for Fugitive Slaves, 34 (quotation), and 35–39.

49. 60 U.S. 393 (1857).

50. Letter from Spooner to Gerrit Smith, September 10, 1857 (N-YHS online). Ironically, Taney's opinion in Dred Scott evinced an affinity for the same original intent methodology that underpinned the Garrisonians' indictment of the Constitution. Barnett, Randy E., “Was Slavery Unconstitutional Before the Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation,” Pacific Law Journal 28 (1997): 1004–5Google Scholar; and Baade, Hans W., “‘Original Intent’ in Historical Perspective: Some Critical Glosses,” Texas Law Review 69 (1991): 1049–55Google Scholar.

51. Lysander Spooner, “To the Non-Slaveholders of the South (1858)” and “A Plan for the Abolition of Slavery (1858),” in The Collected Works, vol. 4. Spooner referred to this as a Manifesto in a letter to Octavius Brooks Frothingham, February 26, 1878, Lysander Spooner Papers, Boston Public Library, Rare Books Department (hereafter BPL).

52. Spooner, “To the Non-Slaveholders of the South,” emphasis added.

53. Ibid.

54. Ibid.

55. It is not clear whether Spooner meant the general enterprise of abolishing slavery or achieving that goal through the use of the specific methods outlined in his Manifesto.

56. Spooner, “A Plan for the Abolition of Slavery”; Spooner, “To the Non-Slaveholders of the South.” This argument was entirely consistent with the definition of law that he outlined in The Unconstitutionality of Slavery.

57. An estimated 200 copies were printed and distributed. Charles Shively, introduction to “To the Non-Slaveholders of the South” and “A Plan for the Abolition of Slavery,” by Lysander Spooner, 3, in The Collected Works, vol. 4.

58. Renehan, Edward J. Jr., The Secret Six: The True Tale of the Men Who Conspired with John Brown (New York: Crown, 1995), 173–74Google Scholar.

59. Rossbach, Jeffery, Ambivalent Conspirators: John Brown, the Secret Six, and a Theory of Slave Violence (Philadelphia: University of Pennsylvania Press, 1982), 182–88CrossRefGoogle Scholar; Lysander Spooner to Thomas Wentworth Higginson, November 28, 1858 (BPL); Thomas Wentworth Higginson to Lysander Spooner, November 30, 1858 (BPL); and Renehan, Secret Six, 175.

60. Higginson to Spooner, November 30, 1858.

61. In this context, I have borrowed the phrase “democratic repudiation” from Corey Brettschneider's excellent review of Kramer's The People Themselves, in which he observes that it is unclear “why Kramer's theory is constitutionalist at all and not merely a democratic repudiation of constitutionalism.” Brettschneider, Corey, “Popular Constitutionalism and the Case for Judicial Review,” Political Theory 34 (2006): 517CrossRefGoogle Scholar.

62. Opened on Broadway in 1853, this was, at the time, one of the most luxurious hotels in the city. Morris, Lloyd R., Incredible New York: High Life and Low Life of Last Hundred Years (New York: Random House, 1975), 5Google Scholar.

63. “To the Editor of the New York Herald,” New York Herald, October 22, 1859, 1.

64. “The Rise and Progress of the Bloody Outbreak at Harper's Ferry,” New York Herald, October 27, 1859, 8 (this article only excerpted “To the Non-Slaveholders”).

65. Exactly why Spooner was selected remains a mystery. Lysander Spooner to Charles B. Sedgwick, and Lysander Spooner to Charles D. Miller, March 23, 1860 (N-YHS online); and Harlow, Ralph Volney, “Gerrit Smith and the John Brown Raid,” The American Historical Review 38 (1932): 5556CrossRefGoogle Scholar.

66. This phrase was spoken by Sherlock Holmes (as portrayed by Jeremy Brett) in the television adaptation of Arthur Conan Doyle's “The Red Circle”; Granada Television, March 28, 1994.

67. Spooner, Lysander, “Address of the Free Constitutionalists to the People of the United States” (1860), in The Collected Works, vol. 4Google Scholar. The letter was from Lysander Spooner to William H. Seward, January 22, 1860 (BPL). Although originally intended as a pre-election criticism of the Republican Party (it was first published in September 1860), in a second printing of the “Address of the Free Constitutionalists” 2 months later, Spooner noted that Lincoln's victory did not make the pamphlet redundant because its Constitutional arguments were timeless. Spooner, “Address of the Free Constitutionalists,” prefatory note to November 1860 edition.

68. For a reference to Seward's views about The Unconstitutionality of Slavery, see “‘State Rights and State Equality,’ Speech of Hon. Thomas Ruffin,” February 20, 1861, Congressional Globe, 36 Cong., 2nd sess., Appendix 227.

69. Spooner to Seward. In the “Address of the Free Constitutionalists,” Spooner argued that Seward was a good example of a politician who believed the Constitution was antislavery (and maybe even that slavery was unconstitutional) but was unwilling to admit this in public. Four years later Senator Charles Sumner similarly incurred Spooner's wrath because in his opinion Sumner acted too much like a politician; he was, in Spooner's eyes, the epitome of a “professed (though hypocritical) advocate of liberty.” Spooner did not doubt that his Senator was for freedom rather than slavery; nor did he question Sumner's belief that he was acting in ways he considered faithful to the Constitution that he had sworn to support. The problem was that Spooner had received word, from several prominent Bostonians, that Sumner privately expressed support for the thesis of The Unconstitutionality of Slavery. As Samuel G. Howe had told him, “Sumner always said it was true, but some how or other he could not think it was practical.” Spooner must have scoffed at the charge of impracticality, because in a moral and constitutional battle for natural justice it was no defense of inaction to say that reality inevitably trumped theory. This was formulated in Spooner's publicly circulated letter to Sumner, in which he said that Sumner could never be a true friend of liberty when he did not publicly stand up for the real Constitution––the one that, in private, he acknowledged to be an antislavery document. Lysander Spooner, “Letter to Charles Sumner (1864),” in Shively, The Collected Works, 4: 1. For a short summary of Sumner's constitutional views, see Donald, David Herbert, Charles Sumner and the Coming of the Civil War (New York: Fawcett Columbine, 1960), 231–33Google Scholar.

70. Spooner, “Address of the Free Constitutionalists,” 17 (emphasis added).

71. Ibid., 3, and September 1860 prefatory note.

72. Childers, Christopher, “Interpreting Popular Sovereignty: A Historiographical Essay,” Civil War History LVII (2011): 48Google Scholar; and Varon, Elizabeth R., Disunion! The Coming of the American Civil War, 1789–1859 (Chapel Hill, NC: University of North Carolina Press, 2008), 199Google Scholar.

73. Morrison, Michael A., Slavery and the American West: The Eclipse of Manifest Destiny and the Coming of the Civil War (Chapel Hill: University of North Carolina Press, 1997), 58Google Scholar(quotation), and, generally, ch. 2.

74. On this point, Mark Brandon provides an excellent comparison of the positions of Spooner and John C. Calhoun: “The logics of Calhoun and Spooner were like mirrored opposites. Both supplied constitutional theories of nullification. But where Calhoun would have permitted state conventions to nullify national decisions that were incompatible with local interests, Spooner would have had judges annul (usually local) decisions that did not cohere with the national application of principles of natural law and right… .The boundaries of Calhoun's world were defined by the connection of antifederalist localism to the preservation of slavery. Spooner's world, on the other hand, grew around the junction of federalist nationalism to abolition.” Brandon, Mark E., Free in the World: American Slavery and Constitutional Failure (Princeton: Princeton University Press, 1998), 6162Google Scholar.

75. To borrow the essence of Gerald Gunther's famous phrase about the strict scrutiny standard of judicial review (“‘strict’ in theory, and fatal in fact”). Gunther, Gerald, “Foreword: In Search of Evolving Doctrine on a Changing Court––A Model for a Newer Equal Protection,” Harvard Law Review 86 (1972): 8Google Scholar. The nineteenth century confrontations between the theory of popular sovereignty and political reality, and the ways in which the latter shaped the former are discussed in excellent detail in Morrison, Slavery and the American West; also see Christopher Childers, “Popular Sovereignty, Slavery in the Territories, and the South, 1785–1860” (PhD diss., Louisiana State University, 2010).

76. He provided the following summary of his three “decisive proofs” of this argument: “otherwise the United States government could not know its own citizens…could not know when it had fulfilled its guaranty of ‘a republican form of government’…[and] could either do more for foreigners (by naturalization) than they can do for those born on the soil…” Spooner, “Address of the Free Constitutionalists,” 12–13. He followed this with an extensive discussion that drew heavily from The Unconstitutionality of Slavery. See Spooner, “Address of the Free Constitutionalists,” 13–17.

77. Spooner, “Address of the Free Constitutionalists,” 46.

78. Letter from Spooner to Smith, March 13, 1848 (N-YHS online).

79. Cover, Justice Accused, 156.

80. Charles Shively, introduction to Spooner, “Natural Law (1882),” 4, in The Collected Works, vol. 1.

81. Spooner, “Address of the Free Constitutionalists,” 17.