Most libertarians tend to bristle at critiques of their own literary work. The assumption they have is that the reviewer must be a diabolical statist. If they had originally done a better job by using cogent reasoning, then perhaps the need to harshly criticize a piece of their literature could have been completely avoided.
It is presumed by the author that the Constitution is valid only insofar as it acts as an individual business contract. Spooner begins his treatise by stating:
“The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man…[f]urthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. And the Constitution, so far as it was their contract, died with them. They have no natural power or right to make it obligatory upon their children.”
This claim directly contradicts the entire ratification period of 1787 – 1788, as well as the original literary source material from that time, such as The Anti-Federalist Papers. All sorts of people “then existing were consulted on the subject” through expressing themselves publicly in various newspapers, from Agrippa, to Brutus, to the Federal Farmer. The whole point of the state conventions were to provide a way for the mass population to “express either their consent or dissent in any formal manner” by sending delegates to debate and vote on whether or not to ratify the proposed Constitution from Philadelphia. Then, Spooner further asserts that:
“If the people of this country wish to maintain such a government as the Constitution describes, there is no reason in the world why they should not sign the instrument itself, and thus make known their wishes in an open, authentic manner; in such manner as the common sense and experience of mankind have shown to be reasonable and necessary in such cases; and in such manner as to make themselves (as they ought to do) individually responsible for the acts of the government. But the people have never been asked to sign it.”
How is that going to work, exactly? At the time this essay was written in 1870, there were approximately 38.5 million Americans; so, how are all those signatures going to fit onto the Constitution? More importantly, why should they have to? It’s almost as if Spooner not only refused to acknowledge the law of agency, but also republicanism itself, particularly with regards to the division of labor it provides via grassroots representation in the government. Clearly, Spooner’s childish demand is deontolgically unsound, as well as pragmatically silly, especially with regard to the fact that the current American population clocks in at approximately 300 million souls (which is a whole lot less people whose signatures would be able to get onto the Constitution in the first place).
Another claim made by Spooner is his notion that posterity, as mentioned in the preamble, are not “bound” by the Constitution. He says:
“In the second place, the language neither expresses or implies that they had any intention or desire, nor that they imagine they had any right or power to bind their ‘posterity’ to live under it. It does not say that their ‘posterity’ will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquillity, liberty, etc.”
What exactly does he mean by “bind?” He never defines or even hints at what he means by that term. Regardless, he uses posterity, whom he claims are free from the bounds of the Constitution, as the justification for why the Constitution is only authoritative if it is explicitly signed by the population at-large:
“The Constitution not only binds nobody now, but it never did bind anybody. It never bound anybody, because it was never agreed to by any body in such a manner as to make it, on general principles of law of reason, binding upon him. It is a general principle of law and reason, that a written instrument binds no one until he has signed it.”
Talk about a faulty premise built upon an even flimsier foundation! By integrating his claim about posterity with that of its validity resting upon the explicit individual consent of each citizen, Spooner has begun stacking up the peripheral aspects of his overall argument upon a shaky base (much like a house of cards).
Constitutional oaths are demonized as insidious tricks against the psyche of the citizenry. Spooner describes them thusly:
“On general principles of law and reason, the oaths which these pretended agents of the people take ‘to support the Constitution,’ are of no validity or obligation. And why? For this, if for no other reason, viz. that they are given to nobody. There is privity, (as the lawyers say), – that is, no mutual recognition, consent and agreement – between those who take these oaths, and any other persons. If I go upon Boston Common, and in the presence of a hundred thousand people, men, women, and children, with whom I have no contract on the subject, take an oath that I will enforce upon them the laws of Moses, of Lycurgus, of Solon, of Justinian, or of Alfred, that oath is, on general principles of law and reason, of no obligation. It is of no obligation, not merely because it is intrinsically a criminal one, but also because it is given to nobody, and consequently pledges my faith to nobody. It is merely given to the winds.”
This is very much in line with what a monarchist would have to say on this topic, for Spooner seems to be holding the same premise – if an oath is not made to an individual human being, then it is not valid. It makes sense to me why an advocate for monarchy would say this, but it befuddles me greatly why Spooner, who was an openly avowed anarchist, would also say the same thing. In any case, Spooner is completely wrong about constitutional oaths being “given to nobody,” because they are given to the employer of said government agents, that is, that specific organ of the government in question (such as the military); this is evidenced by when, for instance, a witness takes the oath before going on the stand when he says, “I will tell the truth, the whole truth, and nothing but the truth.” Such as oath is made to the court, as an entity of the judicial branch of government. To deny this would be to beg the question as to whether oaths made to a collective of human beings are valid or not.
The issue of responsibility is of paramount importance to Spooner’s work; however, to what degree that responsibility lays serves as the chief point of contention. Spooner argues:
“It is no exaggeration, but a literal truth, to say that, by the Constitution – not as I interpret it, but as it is interpreted by those who pretend to administer it – the properties, liberties, and lives of the entire people of the United States are surrendered unreservedly into the hands of men who, it is provided by the Constitution itself, shall never be ‘questioned’ as to any disposal they make of them. Thus the Constitution (Art. 1, Sec. 6) provides that, ‘for any speech or debate [or vote,] in either house, they [the senators and representatives] shall not be questioned in any other place.’ The whole law-making power is given to these senators and representatives, [when acting by a two-thirds vote]; and this provision protects them from all responsibility for the laws they make.”
The second half of this constitutional section’s first clause, that he cites, pertains only to the “privilege from Arrest” that congresscritters enjoy during the performance of their duties, which is not an immunity from them being held accountable by their constituents. His interpretation of their “sovereign immunity” is quite over stretched here, not to say anything of Spooner’s obfuscation concerning the context of the constitutional clause in question. He continues with:
“If, then, nobody is individually responsible for the acts of Congress, the members of Congress are nobody’s agents. And if they are nobody’s agents, they are themselves individually responsible for their own acts, and for the acts of all whom they employ. And the authority they are exercising is simply their own individual authority; and, by the law of nature – the highest of all laws – anybody injured by their acts, anybody who is deprived by them of his property or his liberty, has the same right to hold them individually responsible, that he has to hold any other trespasser individually responsible. He has the same right to resist them, and their agents, that he has to resist any other trespassers.”
Oh my, what a myopic view he has, doesn’t he? Again, Spooner’s worldview about responsibility is profoundly dissimilar from that of the Framers. While they understood responsibility to be possess both individual and collective characteristics, Spooner insists that only individual responsibility is valid, thus negating nearly all social contract theories. But if that is true, isn’t Spooner directly contradicting the classically liberal Lockean position, especially with regards to tacit consent?
Spooner’s concept of only individual responsibility being morally valid is weirdly applied to voting as well. He says:
“As every body who supports the Constitution by voting (if there are any such) does so secretly (by secret ballot), and in a way to avoid all personal responsibility for the acts of his agents or representatives, it cannot legally or reasonably be said that anybody at all supports the Constitution by voting. No man can reasonably or legally be said to do such a thing as to assent to, or support, the Constitution, unless he does it openly, and in a way to make himself personally responsible for the acts of his agents, so long as they act within the limits of the power he delegates to them.”
Similar to his demand that the Constitution be explicitly signed by over 30 million Americans, Spooner insists that, procedurally speaking, voting cannot respect individual privacy. What is rather interesting about this is that “secret” (really, private) ballots got started as a way to avoid voter intimidation, which was common during the 19th century. Spooner’s inference, that the existence of a “secret” ballot is therefore indicative of a “secret” government, lacks sufficient proof for such an assertion. Interestingly enough, he also seems to recognize the legitimacy of republicanism when he recognized that the voters who are individually responsible for the acts of government agents are only responsible so long as those agents act within the limits of the powers delegated to them! Without missing a beat, Spooner next claims that:
“The Constitution itself, then, being of no authority, on what authority does our government practically rest? On what ground can those who pretend to administer it, claim a right to seize men’s property, to restrain them of their natural liberty of action, industry, and trade, and to kill all who deny their authority to dispose of men’s properties, liberties, and lives at their pleasure and discretion? The most they can say, in answer to this question, is, that some half, two-thirds, or three-fourths of the male adults of the country have a tacit understanding that they will maintain a government under the Constitution; that they will select, by ballot, the person to administer it, or a plurality, of their ballots, shall act as their representatives, and administer the Constitution in their name, and by their authority.”
Quite revealing, isn’t it? So, here you have a lawyer whose entire argument against the validity of the Constitution is predicated on the lack of explicit signatures by the population on the document, but then he also admits that a “tacit understanding” exists amongst the electorate to continue the government anyway. Well, jeez Spooner, which is it? Is acquiescence sufficient, or must there be several million signatures on the damn document?! You can’t have your cake and eat it too! Most puzzling of all was this statement:
“The secret ballot makes a secret government; and a secret government is a secret band of robbers and murderers. Open despotism is better than this. The single despot stands out in the face of all men, and says: ‘I am the State, my will is law. I am your master, I take the responsibility of my acts. The only arbiter I acknowledge is the sword; if anyone denies my right, let him try conclusions with me.’ But a secret government is little less than a government of assassins. Under it, a man knows not who his tyrants are, until they have struck, and perhaps not then. He may guess, beforehand, as to some of his immediate neighbors. But he really knows nothing. The man to whom he would most naturally fly for protection, may prove an enemy, when the time of trial comes. This is the kind of government we have; and it is the only one we are likely to have, until men are ready to say: ‘We will consent to no Constitution, except such as one as we are neither ashamed or afraid to sign; and we will authorize no government to do anything in our name which we are not willing to be personally responsible for.‘”
Who is “we,” kemosabe? This sounds to me like a vague conditional acceptance for a republican form of government. Of course, it is typical within polemic anarchistic practice to set the acceptance standard for constituting a government so high that it is literally impossible to form one in the first place, for what reasonable person would want to be personally responsible for the acts of individual government agents? I’d also like to point out here that Spooner clearly prefers “open despotism” to republicanism; the implications of that, I think, are quite staggering.
With regard to taxation, Spooner accepts the libertarian aphorism that all taxation is theft. He interprets taxation the same as:
“To take a man’s property without his consent, and then to infer his consent because he attempts, by voting, to prevent that property from being used to his injury, is a very insufficient proof of his consent to support the Constitution. It is, in fact, no proof at all.”
Conveniently, Spooner neglects to mention the dirty secret of direct taxation, which was only supposed to be levied during the length of a temporary emergency (you’d think a lawyer wouldn’t forget to mention that in a treatise arguing against the validity of the Constitution, would you?). What is additionally insidious about this passage is that it reinforces Spooner’s support of defensive (or protest) voting, which he has written about elsewhere. How is it logically possible for an anarchist to promote voting? Wouldn’t that be similar to, say, an atheist who regularly prayed? Me, oh my…perhaps I am the silly one who assumed integrity was actually an important value! Spooner continues his tirade against taxation with his, often quoted, Analogy of the Highwayman:
“The government does not, indeed, waylay a man in a lonely place, spring upon him from the road side, and, holding a pistol to his head, proceed to rifle his pockets…[t]he highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a ‘protector,’ and that he takes men’s money against their will, merely to enable him to ‘protect’ those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful ‘sovereign,’ on account of the ‘protection’ he affords you. He does not keep ‘protecting’ you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villanies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.”
Is it me, or is this just an incomplete way of explaining Frederic Bastiat’s typology for what constitutes plunder? While Spooner’s analogy might very well be correct when applied to tyrannical government, what in God’s name does it have to do with the Constitution? And by the way, the government does indeed “spring upon him from the road side, and, holding a pistol to his head, proceed to rifle his pockets;” it’s called a traffic stop (which is especially harmful when the cops decide to commit civil asset forfeiture with your car). Spooner then declares:
“Whoever desires liberty should understand these vital facts….if a man wants ‘protection,’ he is competent to make his own bargains for it; and nobody has any occasion to rob him, in order to ‘protect’ him against his will. That the only security men can have for their political liberty, consists in their keeping their money in their own pockets, until they have assurances, perfectly satisfactory to themselves, that will be used as they wish it to be used, for their benefit, and not for their injury. That no government, so called, can reasonably be trusted for a moment, or reasonably be supposed to have honest purposes in view, any longer than it depends upon voluntary support.”
Here, Spooner sounds much like Gustave de Molinari, except that Molinari only justified the privatization of security services on economic grounds without having to denigrate republicanism. Besides, what does Spooner mean here by “voluntary support?” Does he mean, perhaps, that the government should be funded in the same way a charity would be? Again, it sounds to me as if Spooner believes that the relationship between a citizen and their government should be akin to that of the relationship a customer enjoys with the businesses he chooses to patronize. And, most importantly, how does he explain the militia? I sincerely doubt even the Anti-Federalists were in favor of complete privatization of security services, especially in light in fact that law enforcement used to be considered the common duty of all Americans, not a government monopolized occupation (this is totally consistent with republicanism, unlike Spooner’s self-contradictory arguments).
Finally, Spooner concludes his rambling diatribe by saying:
“Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; as is, moreover, such a one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such as government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” [emphasis added]
So, there you have it…the Constitution should be abolished because, at best, it has be impotent to reign in the power of the State; or at worst, it is an inherently tyrannical document that is inimicable to all of our Liberties. Wow, he sounds just like the Federalists with their whole “take this or nothing,” black-and-white approach to life, doesn’t he? No possibility of tweaking the document, or drafting a completely new one for the Republic, or trying a new form of the night-watchman State (like a kritarchy), have not seemed to enter his noggin as potentially viable options.
Let’s review all of Spooner’s pertinent claims, shall we? Allegedly, the Constitution is not a social contract, because it’s only valid if it’s explicitly signed by all citizens, except that there is a “tacit understanding” amongst the electorate to maintain the government as it is, and thus we should all defensively vote to protect our property from democratically authorized theft. Also, the posterity mentioned in the preamble aren’t “bound” by the Constitution, and all oaths made to any organs of the government are not only invalid, they’re also criminal. Congress is totally immune from any accountability for their actions, but that’s a moot point too because collective responsibility doesn’t ever pertain to the electorate, or Americans generally. And since all taxation is theft, the production of security services should be completely privatized because republicanism is just another flavor of statism.
Or so we are led to believe. Spooner seems to regard minarchism with contempt, as evidenced by his rather colorful descriptions of its mechanisms as if they were synonymous with that of absolute governments. Never mind the fact that Spooner’s arguments repeatedly suffer from being reduced to absurdity, such as his basic contradiction about explicit versus tacit consent. The worst part of this whole mess is that Spooner is, in fact, arguing on the side of the statists, for the easiest way to prove their tyranny is by demonstrating just how unconstitutional it is; lacking that, it is nearly impossible to prove tyranny easily if the only standard for doing so is someone else’s arbitrarily chosen moral code.
Lysander Spooner’s No Treason No. VI: The Constitution of No Authority is a misleading attempt to denigrate republicanism by treating it as if it were indistinguishable from garden-variety statism. Treating the Constitution as if it were an individual business contract, and not a binding social contract, which is subject to the proper performance of both parties, is to greatly misunderstand the ratification period of 1787 – 1788. Spooner committed a great injustice against the truth by neglecting to mention the Anti-Federalist tradition, whose common feature was not necessarily criticizing the Constitution, but the overwhelming desire to spend more time negotiating it, instead of having it ramrodded through the state conventions as quickly as possible, absent some genuine emergency. Despite being an abolitionist, I fear that Spooner was a walking paradox, given that he was someone who supported defensive voting, yet thought taxation was coercive theft (such peculiar characteristics does not bode well for someone who is held up as a role model for the anarchist faction).