The Constitution and Slavery

I am scarcely the first to make this observation. Consider these remarks by Richard Hildreth, a rationalistic philosopher and historian (and friend of Lysander Spooner) who rejected the evangelical perspective of most other abolitionists.

After the 13^th Amendment (ratified on December 6, 1865) abolished slavery in the United States, we might think that former activists in the abolitionist movement, as advocates of self-​ownership, would have gone on to work for other libertarian causes. And to some extent they did, as when they worked for equal civil rights, including the right to vote, for blacks and women. But they also campaigned to eradicate sundry vices, as we see in their campaigns to outlaw liquor and prostitution, and in their advocacy of “common” (i.e., public) schools that would “Americanize” immigrants,” “Christianize” Catholics, and instill wholesome Protestant values in American children, especially the virtues of obedience to God and government. Of course not all former abolitionists were obsessed with eradicating sin from American society, as we saw in my recent essays on Lysander Spooner’s Vices are not Crimes, but these were rare exceptions. The abolitionist stress on sin dominated the Whig mentality after ratification of the 13^th Amendment and manifested itself in various movements for social and political reforms—some good and some bad from a libertarian point of view.

I shall now return to the abolitionist crusade against slavery. There can be no question that this campaign deserves the respect and admiration of modern libertarians, whatever the mixed premises on which that campaign was based. Opposition to slavery, then as now, was a no-​brainer for antebellum libertarians, and it was also opposed by many nonlibertarians. But deep fissures divided the critics of slavery about how slavery should be eradicated. Some of these disagreements divided the abolitionists from other antislavery advocates, as we see in the intense criticisms leveled by abolitionists against gradualism and the colonization of liberated slaves to Africa. (Liberia, which began as a settlement of the American Colonization Society, was founded for this purpose.) More interesting for our purpose are the factions that developed among abolitionists themselves. Foremost among these factions was the divide that separated political abolitionists from anti-​political abolitionists (often called “Garrisonians,” after William Lloyd Garrison).

I previously explained the basic ideas of the anti-​political abolitionists (beginning here) in my discussion of a booklet by Wendell Phillips, Can Abolitionists Vote or Take Office under the United States Constitution? Phillips, who followed Garrison in most respects, made it clear that his anti-​political arguments were grounded in the view that the U.S. Constitution authorizes slavery. This led to the condemnation of voting and office-​holding by abolitionists. Elected officials must swear “to support the Constitution of the United States”; and given that the Constitution is a pro-​slavery document, this is something that no abolitionist could possibly do in good conscience. Moreover, voting is wrong because it authorizes politicians to act on behalf of their constituents; and since no individual citizen has the right to enforce the pro-​slavery provisions in the Constitution, no citizen should presume to grant this nonexistent authority to a political agent. In the final analysis, according to the Garrisonians, to vote in a political system based on a pro-​slavery Constitution amounts to a sanction of that system, and this in turn strengthens the evils that we should oppose. (This argument reminds me somewhat of a bumper sticker that I used to sell while running the Society for Individual Liberty at the University of Arizona: “Don’t Vote! It Only Encourages Them.”)

The Garrisonians faced intense opposition within abolitionist ranks. Political abolitionists complained that opposition to voting tied the hands of antislavery activists by precluding a potentially useful means of implementing political changes. Garrison had a fairly effective response to this objection, as I pointed out in a previous essay, and he dealt with other criticisms as well. Nevertheless, many modern historians of abolitionism follow the political abolitionists in dismissing Garrison’s views a naïve, anemic strategy that would have made the abolition of slavery impossible. To this I should note that non-​voting was viewed by the Garrisonians as far more than a strategy. It was first and foremost a moral stance grounded in the belief that the individual should never act contrary to his or her conscience. Garrison, Phillips, and their followers could never accept the maxim that the ends justify the means.

Whatever the problems in anti-​political abolitionism may have been, the political abolitionists faced a considerable hurdle of their own. Most understood the insurmountable problems that would ensue if they accepted the pro-​slavery interpretation of the Constitution. If they wished to defend political action, political abolitionists needed to mount a defense of the Constitution, according to which it was actually antislavery, properly understood. This was no easy task, especially if we take into account the three major slavery clauses: the provision (Art. I, sec. 2) that “all other persons” were to be counted a three-​fifths of a person when computing representation in the House; the provision (Art. I, sec. 9) that Congress could not outlaw the international slave trade until 1808; and the provision (Art. IV, sec. 2) that required states to return escaped slaves to their legal owners.

The most thorough and influential defender of the view that the Constitution does not authorize slavery was Lysander Spooner. In The Unconstitutionality of Slavery (published in two parts, 1845 and 1846) Spooner developed several key arguments that would find their way into the writings of many political abolitionists, especially members of the Liberty Party. This is not to say that all of Spooner’s points were original; some of them are found in earlier abolitionist literature, though not in the detail that we find in Spooner. Generally speaking, however, publications that defended the unconstitutionality of slavery prior to Spooner’s book were unconvincing and smacked of special pleading. In reading some of this pre-​Spooner literature, one gets the feeling that the basic argument was: The U.S. Constitution is a wonderful document, written by freedom-​loving men. It is the guarantor of our liberties, so surely it could not sanction anything as evil and unjust as slavery! This vague argument—an exercise in question-​begging if ever there was one-​-​was probably easer to defend before Madison’s comprehensive notes (abbreviated transcripts, in effect) of the Philadelphia Convention were published in 1840, which exposed the cynical deals and compromises over slavery that were struck during the Convention by supposedly freedom-​loving men. But the same basic argument continued after 1840, if only implicitly.

The Unconstitutionality of Slavery is not easy reading, despite Spooner’s lucid writing style. It is packed with everything from the history of common law to detailed analyses of legal precedents and decisions to the defense of a purely textualist method of interpreting the Constitution that gives no weight to what the framers supposedly intended to say. This dense complexity is owing to the fact that Spooner was writing primarily for fellow attorneys. Spooner regarded lawyers, not legislators, as the moving force in American politics, and he wanted copies of his book to be made available to every lawyer in America. Spooner thought it especially important that southern lawyers, who were known for their strict and literal interpretation of the Constitution, read his brief against the constitutionality of slavery, because he was meeting them on their own ground. To establish the unconstitutionality of slavery, Spooner believed, was a necessary step in abolishing slavery. Even if the entire North became abolitionist, “they would still be unable to touch the chain of a single slave, so long as they should concede that slavery was constitutional.”