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28 Pac. L. J. 977 (1996-1997)
Was Slavery Unconstitutional before the Thirteenth Amendment: Lysander Spooner's Theory of Interpretation

handle is hein.journals/mcglr28 and id is 1015 raw text is: Essay

Was Slavery Unconstitutional Before the Thirteenth
Amendment?: Lysander Spooner's Theory of Interpretation
Randy E. Barnett!
In 1843, radical abolitionist William Lloyd Garrison called the Constitution of
the United States, a covenant with death and an agreement with hell.' Why?
Because it sanctioned slavery, one of the greatest crimes that one person can commit
against another. Slavery was thought by abolitionists to be a violation of the natural
rights of man so fundamental that, as Lincoln once remarked: If slavery were not
wrong, nothing is wrong.'2 Yet the original U.S. Constitution was widely thought to
have sanctioned this crime. Even today, many still believe that, until the ratification
of the Thirteenth Amendment prohibiting involuntary servitude, slavery previously
had been constitutional, and for this reason, the original Constitution was deeply
But in 1845 one man disagreed with the conventional wisdom. That man insisted
that slavery was not only a moral abomination; it was also unconstitutional. His
name was Lysander Spooner and he defended this position in a book, entitled The
Unconstitutionality of Slavery.3 While rejecting his conclusion, Garrison wrote of
Spooner's argument: We admit Mr. Spooner's reasoning to be ingenious- perhaps,
as an effort in logic, unanswerable.'4
Historians of abolitionism know Spooner's name,5 but lawyers, law professors6
and their students generally do not. This is a pity. For Lysander Spooner deserves a
*   Austin B. Fletcher Professor, Boston University School of Law. This Essay is based upon a lecture given
at the University of the Pacific, McGeorge School of Law, on March 13, 1997 as part of the Distinguished Speakers
Series. It was also presented in faculty workshops at Boston University and the Roger Williams School of Law. 0
1997 Randy E. Barnett. Permission to photocopy for classroom use is hereby granted.
1.  Resolution adopted by the Antislavery Society, Jan. 27, 1843 (The compact which exists between the
North and the South is a covenant with death and an agreement with hell.).
2.  Letter by Abraham Lincoln to A.G. Hodges, Apr. 4, 1864.
3.  LYSANDER SPOONER, The Unconstitutionality of Slavey (1845), reprinted in 4 THE COLLECTED WORKS
OF LYSANDER SPOONER (Charles Shively ed., 1971) [hereinafter WORKS].
4.  LYSANDER SPOONER, The Unconstitutionality of Slavery (1860), 4 WORKS, supra note 3 (This quote
is taken from an unnumbered page).
(discussing Spooner's views on the unconstitutionality of slavery).
6.  A Westlaw search (Lysander +2 Spooner) conducted on March 7, 1997 turned up 37 articles by 32
authors referring to Spooner's writings on a number of subjects, some by law professors and some student notes.
Most consist of no more than a sentence or two. Perhaps the most extensive discussion of Spooner's views on
interpretation is contained in Hans W. Baade, Original Intent in Historical Perspective: Some Critical Glosses,
69 TEX. L. REV. 1001, 1046-51 (1991).

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