Lysander Spooner and the Right of Resistance
Smith discusses Spooner’s defense of the right to use violence in self-defense, even against agents of a government.
In Radical Abolitionism: Anarchy and the Government of God in Antislavery Thought (1973), one of the best books on abolitionism ever written, Lewis Perry said that Lysander Spooner “was the leading authority for the view that slavery was illegal under the Constitution.” Although “he was greatly respected by other abolitionists,” Spooner “was a maverick abolitionist who belonged to none of the familiar factions in the movement.” For example, he cannot be neatly placed in either the political faction of the abolitionists, as we find in members of the Liberty Party, or in the anti-political Garrisonian faction. Although Spooner provided the political abolitionists with strong support for their position that the Constitution is antislavery, he refused to join any political party or to vote for any candidate. Here he agreed with the Garrisonians on the immorality of political action, while rejecting their premises, most notably their view that the Constitution is proslavery and Garrison’s advocacy of pacifism.
On the moral status of slave revolts and other forms of violent resistance by slaves, Spooner joined ranks with many of his colleagues (especially in the political faction) and gave his blessing to those events. Garrison and those who adopted his pacifism could not follow Spooner down this path, since their principles did not permit them to endorse violence of any kind, whether offensive or defensive. But more conventional political types, who recognized the right of violent self-defense, could easily relate defensive violence used by slaves with the violence used by Americans against the British during the War for Independence.
But even among the defenders of slave resistance, Spooner stood out by the emphasis he gave to slave resistance and revolts. He was among the relative handful of abolitionists who not only defended slave uprisings in the past but who also recommended slave revolts as a just and viable method of helping to achieve emancipation in the future. We see this especially in Spooner’s 1858 broadside A Plan for the Abolition of Slavery. Here Spooner called for “bystanders” to assist in the emancipation of slaves “by force, if need be.” To deny this right would be tantamount to forbidding us “to rescue men from wild beasts, or from burning buildings.”
Spooner’s plan was to sever the relationship between southern slaveholders and the majority of Southerners who did not own any slaves. Northerners were encouraged to emigrate to the South where they could encourage non-slaveholders to assist in their plans, and could educate slaves (“by emissaries to be sent among them”) on what they would need to do. Slaves would also be assured that, after emancipation, they would receive restitution from their former masters and that a just government would remain “as will secure the future freedom of the persons emancipated.” Spooner did not shrink from the fact that his plan would probably necessitate violent measures, as guerilla raids on slave plantations destroyed the “security and value of Slave property” and annihilated the “commercial credit of the Slaveholders.” These consequences would make the non-slaveholders of the South far less dependent economically on slaveholders and do much to undermine that parasitic aristocratic class.
Wasn’t Spooner advocating a type of war? Spooner conceded the point. He was advocating a violent “revolution,” provided that all peaceful means proved ineffective. He was calling for a “private war” because “in revolutions of this nature, it is necessary that private individuals should take the first steps,” if an old government is to be destroyed and replaced by a new government. The American Revolution, which began with guerilla tactics, was clearly Spooner’s model here.
It is important to understand Spooner’s plan to abolish slavery if we wish to appreciate the importance of his tract The Unconstitutionality of Slavery. If people truly believe that slavery is authorized by the Constitution, they will have little incentive to resist slavery with violence. Only if people view the Constitution as antislavery will public opinion support the position that slaveholders are not only violating natural rights but are also breaking the fundamental law of the United States. To use violence against lawbreakers is much more palatable than advocating violent resistance against people who are acting in accord with the Constitution.
The right of resistance in self-defense, as when we seek to overthrow a tyrannical government, was widely accepted in Spooner’s time, but—as was typical of his thinking—he pushed this right to a logical extreme that even many of his fellow abolitionists could not accept. Spooner defended the right of violent resistance in a number of his tracts, and they qualify as one of the best defenses of this right ever written. One of his best treatments appears in A Defence for Fugitive Slaves (1850). The Fugitive Slave Act of 1850, one of the most reprehensible acts ever passed by Congress, provoked a good deal of violent resistance by antislavery activists, and it even encouraged some pacifists to rethink their views on when violence may properly be employed. Spooner claimed that government employees, regardless of whatever oaths they may have taken, enjoy no special immunity from being held responsible for violating individual rights. Even judges become outlaws, mere hirelings of the state who have sworn to obey unjust orders, when they render decisions without regard to the natural laws of justice. Spooner wrote:
An officer of the government is an officer of the law only when he is proceeding according to law. The moment he steps beyond the law, he, like other men, forfeits its protection, and may be resisted like any other trespasser. An unconstitutional statute is no law, in the view of the constitution. It is void, and confers no authority on any one; and whoever attempts to execute it, does so at his peril. His holding a commission is no legal protection for him.
Spooner had no doubt that the Second Amendment was primarily a defensive measure against government.
The constitution contemplates no such submission, on the part of the people, to the usurpations of the government, or to the lawless violence of its officers. On the contrary it provides that “The right of the people to keep and bear arms shall not be infringed.” This constitutional security for “the right to keep and bear arms,” implies the right to use them,—as much as a constitutional security for the right to buy and keep food, would have implied the right to eat it. The constitution, therefore, takes it for granted that, as the people have the right, they will also have the sense, to use arms, whenever the necessity of the case justifies it. This is the only remedy suggested by the constitution, and it is necessarily the only remedy that can exist, when the government becomes so corrupt as to afford no peaceable one. The people have a legal right to resort to this remedy at all times, when the government goes beyond, or contrary to, to the constitution. And it is only a matter of discretion with them whether to resort to it at any particular time.
A standard reply to Spooner’s argument was (and is) that we are morally obligated to obey a law until and unless it is declared unconstitutional by the Supreme Court. According to Spooner, this position directly contradicts the premise that an unconstitutional law carries no moral authority and cannot bind anyone to do anything. It would mean that an unconstitutional law, until it is repealed or declared invalid, would be as binding as a constitutional law, and this raises the question: Why have a Constitution in the first place, if the government may proclaim that even laws that violate the Constitution must be obeyed until the government itself decides to release citizens from this supposed obligation? The U.S. Constitution, according to its defenders, is supposed to limit the powers of government, but this purpose is nullified if the government may legitimately demand complete obedience to any law it sees fit to pass so long as the government itself does not disqualify a law as unconstitutional. This is a tenet of an absolute government. The U.S. Constitution, in theory, is supposed to be a trust in which the people delegate certain rights to a government, and the principals in this kind of contract should have the ultimate authority to decide when its agents exceed or violate the conditions of the trust. To leave this decision completely in the hands of the agents (the government) is to insure that, more often than not, the government, not the people, will get its way.
Spooner concluded:
The right and the physical power of the people to resist injustice, are really the only securities that any people can ever have for their liberties. Practically no government knows any limit to its power but the endurance of the people. And our government is no exception to the rule. But that the people are stronger than the government, our representatives would do anything but lay down their power at the end of two years. And so of the president and senate. Nothing but the strength of the people, and a knowledge that they will forcibly resist any very gross transgression of the authority granted by them to their representatives, deters these representatives from enriching themselves, and perpetuating their power, by plundering and enslaving the people.
The maxim that power corrupts enjoyed a near-axiomatic status in the libertarian tradition, so when Lord Acton said, “Power tends to corrupt, and absolute power corrupts absolutely,” he was not stating anything new. In invoking this common piece of political wisdom, however, Spooner made it clear that the fault lay not in the natural moral character of politicians—who are neither better nor worse than most other men—but in the nature of power itself. “[T]he temptations of avarice and ambition, to which they are exposed, are too great for the mere virtue of ordinary men.” (This fails to explain, of course, why some people desperately desire to have power in the first place.)
Spooner was under no illusion that the American people are the government, as a popular cliché of democratic theory would have it. There exist only the rulers and the ruled. Ideally (but never in practice), citizens consent to be represented by elected officials who swear to abide by the Constitution in bringing about what their constituents want, but this can easily lead to despotism unless politicians understand and respect a “higher” law more fundamental than the Constitution. This “natural law” renders invalid any human law that violates basic rights grounded in human nature and that do not originate in human will or decree. (Like many abolitionists, Spooner pointed to Jefferson’s Declaration of Independence for a presentation of these inalienable rights.) Unjust laws, even those sanctioned by a constitution, carry no moral obligation, regardless of who may consent to those laws. Human laws have moral authority only to the extent that they conform to the precepts of natural law. The precepts themselves may not be written down, being embodied instead in customs and conventions long before written laws emerged in western culture. One simply could not live in a society without learning the basic principles of natural law respecting property rights, and so forth, that make that society possible. One does not learn these laws by reading records of Congress. One learns them by living and interacting with others in society.
A graduate student in search of an interesting and largely unexplored topic for a dissertation may wish to consider the similarities between Spooner and F.A. Hayek on this point. Hayek, though not generally regarded as a natural-law philosopher, distinguished between “law” and “legislation” in a manner that reminds us of Spooner’s distinction between “natural law” and the legislated enactments of a government. According to Hayek (in the first volume of Law, Legislation, and Liberty), legislation is “the deliberate making of law” by a ruler. And though many people nowadays think of “law” exclusively in this sense of an enacted decree, law “in the sense of enforced rules of conduct” did not always carry this implication. On the contrary, the conception of laws as basic rules of conduct “is undoubtedly coeval with society; only the observance of common rules make the peaceful existence of individuals in society possible”—so the very existence of a society means that these laws were widely observed before it was even possible to write them down. Hayek pointed out that the “late Spanish schoolmen used the term ‘natural’ as a technical term to describe what had never been ‘invented’ or deliberately designed but had evolved in response to the necessity of the situation.” This is basically consistent with what Spooner (and other libertarians) meant by natural laws, so the gap between Spooner and Hayek is not nearly as wide as some libertarians seem to believe.