from Was Slavery Constitutional Before the Thirteenth Amendment?: Lysander Spooner's Theory of Interpretation, by Randy E. Barnett.

II. LEGAL INDETERMINACY AND NEED FOR NATURAL LAW

In setting out his method of constitutional interpretation, Spooner was under no illusions about the determinacy of written texts. Indeed, it was the indeterminacy of written words that Spooner thought gave rise to the need for a theory of interpretation. "The words, in which statutes and constitutions are written," he observed

are susceptible of so many different meanings, -meanings widely different from, often directly opposite to, each other, in their bearing on men's rights, -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." [17]

As an example of this in the Constitution, he offered the word "free."

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. [18]

Without some way of ascertaining a single meaning, therefore, the whole point of adopting a written statute or constitution would be defeated. "[E]ach written law, in order to be law, must be taken only in some one definite and distinct sense; and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of." [19] Spooner then asked, "How is this selection to be made?" [20] For his answer, he turned to natural law. By natural law Spooner meant a "universal principle of moral obligation, that arises out of the nature of men and their relations to each other, and to other things and [which] is consequently as unalterable as the nature of men." [21] This he called "the rule, principle, obligation or requirement of natural justice." [22] And the requirement of natural justice "has its origin in the natural rights of individuals, results necessarily from them, keeps them ever in view as its end and purpose, secures their enjoyment, and forbids their violation." [23] Put another way, "this natural law is no other than that rule of natural justice, which results either directly from men's natural rights, or from such acquisitions as they have a natural right to make or from such contracts as they have a natural right to enter into." [24]

Years later, Spooner explained his conception of natural law as follows:

The science of mine and thine-the science of justice-is the science of all human rights; of man's rights of person and property; of all his rights to life, liberty, and the pursuit of happiness.

It is the science which alone can tell any man what he can, and cannot, do; what he can, and cannot, have; what he can, and cannot, say, without infringing the rights of any other person.

It is the science of peace; and the only science of peace; since it is the science of which alone can tell us on what conditions mankind can live in peace, or ought to live in peace, with each other.

These conditions are simply these: viz., first that each man shall do, towards every other, all that justice requires him to do; as for example, that he shall pay his debts, that he shall return borrowed or stolen property to its owner, and that he shall make reparation for any injury he may have done to the person or property of another.

The second condition is, that each man shall abstain from doing, to another, anything which justice forbids him to do; as, for example, that he shall abstain from committing theft, robbery, arson, murder, or any other crime against the person or property of another.

So long as these conditions are fulfilled, men are at peace, and ought to remain at peace, with each other. But when either of these conditions is violated, men are at war. And they must necessarily remain at war until justice is re-established. [25]

The "science of justice," then, was to figure out the preconditions of peace. [26]

Although Spooner wrote in a day when, especially among abolitionists, natural law and natural rights were more familiar than they are today, he did not assume his audience understood these concepts or accepted them. Instead, he explained why an appeal to natural law and natural rights was both inescapable and feasible. Spooner argued that statutes and constitutions must be consistent with natural justice as defined by natural rights because only by so doing would such statutes or constitutions be binding on the citizenry:

Natural justice is either law, or it is not. If it be law, it is always law, and nothing inconsistent with it can ever be made law. If it be not law, then we have no law except that which is prescribed by the reigning power of the state; and all idea of justice being any part of our system of law, any further than it may be specially prescribed, ought to be abandoned; and government ought to acknowledge that its authority rests solely on its power to compel submission, and that there is not necessarily any moral obligation of obedience to its mandate.

Putting the matter more succinctly, Spooner wrote: "If legislation be consistent with natural justice, and the natural or intrinsic obligation of the contract of government, it is obligatory: if not, not. [27]

For Spooner, then, the choice was a conception of law that was consistent with natural justice, which would then carry with it a duty of obedience, or a conception of law based solely on the successful imposition of power, which there would be no moral duty to obey. "If physical power be the fountain of all law, then law and force are synonymous terms. Or, perhaps, rather, law would be the result of a combination of will and force; of will, united with a physical power sufficient to compel obedience to it, but not necessary having any moral character whatever." [28] The implications of this definition of law were obvious to Spooner. "On this principle, then-that mere will or power are competent to establish the law that is to govern an act, without reference to the justice or injustice of the act itself, the will and power of any single individual to commit theft, would be sufficient to make the theft lawful, as lawful as is any other act of injustice, which the will and power of communities, or large bodies of men, may be united to accomplish." [29]

But are not the commands of legitimate governments distinguishable from the commands of a thief? Spooner argued that this would only be true on the assumption that a government's legitimacy is not itself a product of mere will or power. "The numbers concerned," he wrote, "do not alter the rule." [30] How then would a government achieve legitimacy? Spooner's answer was the traditional American answer: from the consent of the governed. "[G]overnment can have no powers except as individuals may rightfully delegate to it." [31] But once again, Spooner's argument takes on a modem appearance. For he understood as well as any political theorist today the impossibility of gaining unanimous consent.

Our constitutions purport to be established by "the people," and, in theory, "all the people" consent to such government as the constitutions authorize. But this consent of "the people" exists only in theory. It has no existence in fact. Government is in reality established by the few; and these few assume the consent of all the rest, without any such consent being actually given. [32]

One might conclude from a lack of actual consent either that the government was illegitimate [33] or that actual consent is not what legitimates government. Or one might contend, as Spooner did in his book on slavery, that the lack of actual consent imposed severe constraints on any government which depended for its legitimacy upon the consent of the governed. Specifically, it limited the government to exercising only those powers to which every honest person could be presumed to have consented. [34]

Spooner's answer to the lack of actual assent was, therefore, to employ a presumption based on what today might be called rational choice.

All governments...that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all or even a very large part, of the governed, can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government. [35]

In other words, any government who depends for its legitimacy on the consent of the governed must operate consistent with principles of justice-the conditions of peace-to which everybody presumably could agree.

Moreover, lawmakers must make laws that adhere to natural justice because they have promised to do so, and judges must so construe them: "[E]very instrument, and every man, or body of men, that profess to establish a law, impliedly assert that the law they would establish is reasonable and right. The law, therefore, must, if possible, be construed consistently with that implied assertion." [36]

Finally, because some rights are inalienable, governments cannot claim that the citizenry has consented to their infringement.

[I]n order that the contract of government may be valid and lawful ... [i]t cannot lawfully authorize government to destroy or take from men their natural rights: for natural rights are inalienable, and can no more be surrendered to government - which is but an association of individuals - than to a single individual. They are a necessary attribute of man's nature; and he can no more part with them - to government or anyone else- than with his nature itself. [37]

And this leads Spooner to a particular conception of government's purpose: "But the contract of government may lawfully authorize the adoption of means-not inconsistent with natural justice-for the better protection of men's natural rights. And this is the legitimate and true object of government." [38]

What of the practicality of basing law on natural justice which, in turn, is based on natural rights? In assessing Spooner's proposal it is important to bear in mind that, while Spooner advocated the non-binding nature of statutes that violate or were inconsistent with natural justice, he did not think that abstract principles of justice dictated the precise content of all laws. He allowed, for example, for the necessity of laws to establish much-needed conventions.

This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect. These things may be varied, as expediency may dictate, so only that they be allowed to infringe no principle of justice. And they must, of course, be written, because they do not exist as fixed principles, or laws in nature. [39]

What he vehemently denied is that natural law was somehow ineffable and unknowable. Because this remains a common objection to natural rights, and as his response to this questions also reveals what he thought to be the content of natural rights, I quote him at length:

The objections made to natural law, on the ground of obscurity, are wholly unfounded. It is true, it must be learned, like any other science, but it is equally true, that it is easily learned. Although as illimitable in its applications as the infinite relations of men to each other, it is, nevertheless, made up of simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. It is the science of justice,-and almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn. Men living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent, even if they would. The dealings of men with men, their separate possessions, and their individual wants, are continually forcing upon their minds the questions, -Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions, which, in regard to the great mass of cases, are answered alike by the human mind everywhere. [40]

For Spooner, natural law was knowable because, in the abstract, it was limited to the following proposition:

The ultimate truth on this subject is, that man has an inalienable right to so much personal liberty as he will use without invading the rights of others. This liberty is an inherent right of his nature and his faculties. It is an inherent right of his nature and faculties to develope [sic] themselves freely, and without restraint from other natures and faculties, that have no superior prerogatives to his own. And this right has only this limit, viz., that he do not carry the exercise of his own liberty so far as to restrain or infringe the equally free development of the natures and faculties of others. The dividing lines between the equal liberties of each must never be transgressed by either. This principle is the foundation and essence of law and of civil right. And legitimate government is formed by the voluntary association of individuals, for the mutual protection of each of them in the enjoyment of this natural liberty, against those who may be disposed to invade it. [41]

It is a principle so obvious in itself and in most of its applications that children learn it "before they have learned the language by which we describe it" [42]:

Children learn many principles of natural law at a very early age. For example: they learn that when one child has picked up an apple or a flower, it is his, and that his associates may not take it from him against his will. They also learn that if he voluntarily exchange his apple or flower with a playmate, for some other article of desire, he has thereby surrendered his right to it, and must not reclaim it. These are fundamental principles of natural law, which govern most of the greatest interests of individuals and society; yet, children learn them earlier than they learn that three and three are six, or five and five, ten. [43]

Why then is natural law supposed to be so confusing and unknowable? Spooner's answer is surprisingly compelling:

If our governments would but themselves adhere to natural law, there would be little occasion to complain of the ignorance of the people in regard to it. The popular ignorance of law [that is, just law] is attributable mainly to the innovations that have been made upon natural law by legislation; whereby our system has become an incongruous mixture of natural and statute law, with no uniform principle pervading it. To learn such a system, - if system it can be called, and if learned it can be, - is a matter of very similar difficulty to what it would take to learn a system of mathematics, which should consist of the mathematics of nature, interspersed with such other mathematics as might be created by legislation, in violation of all the natural principles of numbers and quantities.

But whether the difficulties of learning natural law be greater or less than here represented, they exist in the nature of things and cannot be removed. Legislation, instead of removing, only increases them. This it does by innovating upon natural truths and principles, and introducing jargon and contradiction, in the place of order, analogy, consistency, and uniformity. [44]

In this manner, Spooner began his interpretive approach with an affirmation of natural rights that he shared with other abolitionists and with the revolutionary generation that came before him.

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[17] LYSANDER SPOONER, The Unconstitutionality of Slavery 137 (rev. ed. 1860). reprinted in 4 WORKS, supra note 3 [hereinafter SPOONER, The Unconsistutionality of Slavery). Page numbers are to the 1860 "enlarged edition" as reprinted in 4 WORKS, supra note 3, which includes both the original version published in 1845, the second part published in 1847, additional appendices, and reviews of earlier editions. This edition, published in Boston, sold for $1.00 in cloth and 75 cents in paper. Return

[18] Id. at 138. Return

[19] Id. at 138-39. Return

[20] Id. Return

[21] Id. at 5-6. Return

[22] Id. at 6. Return

[23] Id. Return

[24] Id. at 7. Return

[25] LYSANDER SPOONER, Natural Law or7he Science of Justice (1882), reprinted in l WORKS, supra note 3, at 5-6. Return

[26] As might be expected, Spooner thought that "[e]ach individual being secured in the enjoyment of this liberty, must then take the responsibility of his own happiness and well-being. If his necessities require more than his faculties will supply, he must depend upon the voluntary kindness of his fellow-men…." SPOONER, The Unconstitutionality of Slavery, supra note 17, at 20 n.*. Nevertheless, Spooner maintained that extreme necessity could change a person's obligation if "he be reduced to that extremity where the necessity of self-preservation overrides all abstract rules of conduct, and makes a law for the occasion - an extremity, that would probably never occur but for some antecedent injustice." Id. Return

[27] SPOONER, The Unconstitutionality of Slavery, supra note l7, at 8n.* (emphasis added). Return

[28] Id. at 12. Return

[29] Id. at 12-13. Return

[30] Id. at 12. Return

[31] Id. at 14. Return

[32] Id. at 12. see id. at 225 ("Me whole matter of the adoption of the constitution is mainly a matter of assumption and theory, rather than of actual fact."). Return

[33] Later in his life Spooner reached this conclusion in what may be his best remembered essay. See LYSANDER SPOONER, No Treason, No. VI.: The Constitution of No Authority (I 870), reprinted in I WORKS, supra note 3. Return

[34] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 143. Return

[35] Id. Return

[36] Id. at 205. Return

[37] Id. at 8. Return

[38] Id. Return

[39] SPOONER, The Unconstitutionality of Slavery, supra note 17, at 140 n.*. Return

[40] Id. at 140-41 n.X. Return

[41] Id. at 19-20 n.* (emphasis added). Return

[42] Id. at 140-41 n.X. Return

[43] Id. Return

[44] SPOONER, The Unconstitutionality of Slavery, supra note 17. Return