Are Judges Bound to Enforce Unjust Laws?

Smith details the scholarly debate between Lysander Spooner and Wendell Phillips over the constitutionality of slavery.

George H. Smith

George H. Smith was formerly Senior Research Fellow for the Institute for Humane Studies, a lecturer on American History for Cato Summer Seminars, and Executive Editor of Knowledge Products. Smith’s fourth and most recent book, The System of Liberty, was published by Cambridge University Press in 2013.

In 1845 Lysander Spooner published The Unconstitutionality of Slavery. Two years later Wendell Phillips, who believed that the Constitution is a proslavery document, responded with a critique in the Anti-​Slavery Standard, and shortly afterwards he republished his criticisms, with some additions, as a book, Review of Lysander Spooner’s Essay on the Unconstitutionality of Slavery (1847). Spooner then responded to many of Phillips’s arguments in Part Second of The Unconstitutionality of Slavery (1847).

Perhaps the most interesting practical disagreement between Spooner and Phillips concerned the issue of what antislavery judges should do when required by their oath of office to enforce unjust laws supporting slavery. Most abolitionists, including Phillips, believed that judges should resign in these cases, whereas Spooner argued that judges should not resign but should, in effect, nullify proslavery laws by rendering just decisions regardless of what the law may say. This essay explains some features of this fascinating debate.

Wendell Phillips wrote:

All that we have to do, as Abolitionists, with Mr. Spooner’s argument is to consider its influence on the Anti-​Slavery cause. He maintains that the Judges of the United States Courts have the right to declare Slavery illegal, and he proposes that they should be made to do so. We believe that, in part, he mistakes fancy for argument; in part, he bases his conclusions on a forced interpretation of legal maxims, and that the rest of his reasoning, where not logically absurd and self-​contradictory, is subversive of all sound principles of Government and of public faith. Any movement or party, therefore, founded on his plan, would, as soon as it grew considerable enough to attract public attention, be met by the contempt and disapprobation of every enlightened and honest man. To trust our cause with such a leader is to insure its shipwreck. To keep, therefore, so far as our influence extends, the Anti-​Slavery movement in its legitimate channel, to base it on such principles as shall deserve and command the assent of every candid man, to hold up constantly before the nation the mirror of its own deformity, we undertake the distasteful task of proving the Constitution hostile to us and the slave.

Phillips believed that previous abolitionists who had defended the unconstitutionality of slavery were often guilty of rationalizing. They began with the conclusion that voting and other political activities were essential to the antislavery cause, and to justify this political strategy they had to show that the U.S. Constitution, properly understood, is antislavery. This generated forced and unconvincing arguments manufactured for a good cause. But Spooner differed from his predecessors.

It is but justice to Mr. Spooner to acknowledge that his performance differs from most of those which have preceded it, not only in the ingenuity of the argument, but in the honest aim of the writer. With him “the wish” does not appear to have been “father to the thought.” He did not first found a party [i.e., the abolitionist Liberty Party] and then stretch out both hands to clutch something that would sustain him in the right of voting at all. He did not violate his own convictions, and then, obstinately shutting his eyes, cry out, “I do not see where I am inconsistent.” His logic does not grow out of a lingering love of the ballot, or a secret desire to put “non-​resistance hors du combat.” He did not, in order to save a corrupt and trembling Church and shield it from the storm of deserved rebuke, endeavor to build an ark of political refuge out of legal scraps and disjointed and misunderstood quotations. He seems to have persuaded himself of the truth of his own theory, and then to have thrown it fearlessly out to the world, trusting in its truth to make it useful, and with no ulterior object or private end to serve.

Let us suppose that Spooner was correct—that the U.S. Constitution, properly interpreted, is truly antislavery. To this supposition Phillips responded with some interesting points.

We go on to ask (of Abolitionists, not of Mr. Spooner,) how comes it that, as he all along confesses, Courts, Congress, and the people have uniformly warped and twisted the whole instrument aside and awry to serve and sustain Slavery? That the whole Administration of the Government, from its very commencement, has been pro-​slavery? If the Constitution be guiltless of any blame in this matter, then surely there must be some powerful element at work in the Union itself, which renders it impossible for this to be an Anti-​Slavery nation, even when blessed with an Anti-​Slavery Constitution; and thus the experience of fifty years proves Union under any form, to be impossible without guilt. In such circumstances, no matter what the Constitution is, whether good or bad, it is the duty of every honest man to join in the war-​cry of the American Anti-​Slavery Society, “no Union with Slaveholders.” For if we could not escape the infamy and the sin of such a pro-​slavery administration as ours has always been, under a Constitution pure as Mr. Spooner describes this to be, then, as we never can have a better, we ought to give up the experiment.

Phillips attempted to score an easy victory here for the Garrisonian anti-​political position. Whatever the true nature of the Constitution may be, “no one has ever denied that the Supreme Court now construes the Constitution in a pro-​slavery sense.”

This, then, is the law of the land until altered. Here again the position of the American Anti-​Slavery Society is untouched. For whatever be the real character of the Constitution, if those who now swear to support that instrument are bound to support it in the sense which the Courts give it, then, surely, no Abolitionist can consistently take such an oath or ask another person to do so.

Lysander Spooner also had a position that enabled him to do an end run around the constitutionality controversy. Even if the Constitution is proslavery, it does not follow that judges who have sworn to enforce the provisions of that document are morally obligated to do so. This is because no oath to commit an injustice is ever valid. Spooner provided a number of examples to illustrate his argument, including this one.

Suppose A put a sword into the hands of B, on the condition of B’s taking an oath that with it he will murder C. Now, however immoral the taking of this oath may be, yet, when taken, the oath and the condition are utterly void. They are incapable of raising the least moral obligation, of any kind whatever, on the part of B towards A. B then holds the sword on the same principle, and by the same right, that he would have done if it had been put into his hands without any oath or condition whatever. Now the question is whether B, on refusing to fulfill the condition, is bound to retain the sword, and use it, if necessary, in defence of C? or whether he is bound to return it to A, in order that A may give it to some one who will use it for the murder of C? The case seems to be clear. If he were to give up the sword, under these circumstances, knowing the use that was intended to be made of it, and it should then be used, by some other person, for the murder of C, he would be, on both moral and legal principles, as much accessary to the murder of C, as though he had furnished the sword for that specific purpose, under any other circumstances whatever.

In Part Second of The Unconstitutionality of Slavery, Spooner applied this reasoning to the argument of Phillips and other abolitionists who maintained that a judge who cannot in good conscience enforce an unjust law should resign his office. No, said Spooner. No judge is morally obligated to enforce an unjust law regardless of any oath he may have taken previously.

It being admitted that a judge can rightfully administer injustice as law, in no case, and on no pretence whatever; that he has no right to assume such an oath to do so; and that all oaths of that kind are morally void; the question arises, whether a judge, who has actually sworn to support an unjust constitution, be morally bound to resign his seat? or whether he may rightfully retain his office administering justice, instead of injustice, regardless of his oath?

Many “high authorities,” Spooner conceded, maintained that a judge ought to resign rather than enforce a law he regards as unjust, but Spooner disagreed. A judge ought to retain his seat and rule in favor of justice, regardless of what the letter of the law may say. No oath to uphold the rule of law is thereby violated because no oath to enforce unjust laws can possibly be valid and binding. The judge has only one obligation, namely, to enforce the natural law of justice regardless of what the edicts of a government may say. Drawing upon the principle previously explained, Spooner wrote:

The case appears to be this: The office [of judge] is simply power, put into a man’s hands, on the condition, based upon his oath, that he will use that power to the destruction or injury of some person’s rights. This condition, it is agreed, is void. He holds the power, then, by the same right that he would have done if it had been put into his hands without the condition. Now, seeing that he cannot fulfill, and is under no obligation to fulfill, this void condition, the question is, whether he bound to resign the power, in order that it may be given to some one who will fulfill the condition? or whether he is bound to hold the power, not only for the purpose of using it himself in defence of justice, but also for the purpose of withholding it from the hands of those who, if he surrender it to them, will use it unjustly? Is it not clear that he is bound to retain it for both of these reasons?

Phillips regarded Spooner’s argument—according to which a judge should ignore an unjust law and rule in favor of justice regardless of what the law demands, rather than resign his position when confronted with an unjust law (the standard position of most abolitionists)—as the most important practical implication of The Unconstitutionality of Slavery. This was the argument that Phillips primarily had in mind when he maintained (in a passage quoted above) that Spooner’s principles are “subversive of all sound principles of Government and of public faith” and would bring abolitionism in disrepute among Americans. For if judges are bound by nothing more than their own consciences, if they may render judgments based on their own ideas of justice regardless of what the law says, then there can never exist a stable rule of law. Indeed, Spooner’s position, if consistently applied, would lead to anarchy—a society in which no judge or other government official is bound to enforce the law of the land, whether just or unjust. The supposition that no judge is morally bound by his oath of office would make all government “impossible.” As Phillips put it:

Indeed, Mr. Spooner’s idea is practical no-​governmentalism. It leaves every one to do “what is right in his own eyes.” After all, Messrs. Goodell and Spooner, with the few who borrow this idea of them, are the real no-​government men; and it is singular, how much more consistent and sound are the notions of Non-​resistants on this point [i.e., the views of William Lloyd Garrison and his followers],—the men who are generally considered, though erroneously, to be no-​government men.