No Treason

Do Hamilton and Madison’s Concept of Consent of the Governed Answer Charges of Violation Natural Law As Lysander Spooner Charges?

I want to thank

Dave Wise (Neoteric Wood Art)

for requesting this topic. It proved to be thought provoking and fun.

Last month Dave Wise asked me to write about Abolitionist Lysander Spooner and Spooner’s views on the Constitution and the Founding Fathers. This was challenging as it introduced me to a new perspective on what comprises the validity of our Constitution. Since this month is the birth month of the Father of The Constitution James Madison, it seemed a good time to take a look at Spooner’s life and critique of the framework of our society. He asked the question, do we truly adhere to Natural Law if we are bound to by a Constitution that is not enforced with the same standards as legal documents. Spooner offers many insights that question the strength of the Constitution and if the Constitution itself can protect us from the tyranny that the Founding Fathers fought to repel when they established our system of government.

I was not familiar with Spooner beyond his argument that unconstitutional acts are immediately null and void, a position aligned with Madison and Jeffersons’ thinking on what steps should be taken to preserve individual rights. This quote from Spooner in Defense For Fugitive Slaves is what I was acquainted most with:

because, if an unconstitutional act be binding until invalidated by repeal, the government may, in the mean time disarm the people, suppress the freedom of speech and the press, prohibit the use of the suffrage, and thus put it beyond the power of the people to reform the government through the exercise of those rights.

Contrast that with his opening statement from No Treason #6: Constitution of No Authority and you get a flavor for what we in for:

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts.

Did Madison and Hamilton anticipate questions of legitimacy appropriately, or do Spooner’s practical arguments shine an uncomfortable light on where the Constitution is too general in establishing its authority?

Who Is Spooner

Lysander Spooner, born January 19th 1808 in Athol Massachusetts, was an entrepreneur, attorney and Abolitionist. He was truly a contrarian, and notably independent thinker with a very practical and logical approach to his philosophy of liberty and independence. He was the second child of nine, and although his ancestor was an early settler in the Plymouth colony in 1737, his family was not of the typical Puritan mindset. His grandfather was Wing Spooner, a captain in the Revolutionary Army. His father Asa, while a strong authority figure, went against the grain by giving his first two sons non-Christian names. Leander, the eldest son, was named after Greek myth and Lysander after a Spartan general.

Lysander inherited other qualities from this family, such as their reverence for freedom and the staunch aversion to slavery. Both his father and mother were avowed abolitionists, and this influenced Lysander greatly.

Spooner’s views on abolition were also rooted in his views on Natural Law. For Spooner, Natural Law should be the basis for a just society. Natural Law is the belief that men and women inherently possess the right of free speech, thought, and the right to pursue a life of prosperity. These rights were not bestowed by rulers or a government. The laws of men were many times at odds with Natural Law. The right to work and acquire property were natural rights, and could not be annulled by legislation.

The whole object of legislation is to overturn natural law, and substitute for it the arbitrary will of power;” in other words, “to destroy men’s rights.

According to Spooner, slavery was not a condition that could be enforced by the Constitution, because it ran contrary to the Constitution’s foundation in Natural Law itself. Interestingly enough, Spooner also maintained that Congress did not have the ability to outlaw slavery, because that implied that Congress would have in its power to grant the ability to enslave in the first place. All people were free according to Natural Law, and the Constitution could neither grant that status nor revoke that status. Therefore, no laws for repealing slavery were required.

Spooner’s thinking influenced Frederick Douglas, who was at odds with other abolitionists that the Constitution legally enforced slavery. Many abolitionists felt that the Constitution granted slavery, and while that was wrong, they would have to wait for the opportunity to alter the Constitution in order to end the institution of slavery.

In his essay Defense for Fugitive Slaves, Spooner attacks the constitutionality of the The Fugitive Slave Act of 1850 as well as Fugitive Slave Act of 1793, stating that since they are inherently contrary to Natural Law, they are nullified. If there is no Constitutional basis for slavery, then how can laws that compel compliance be followed? In addition, there were other unconstitutional elements of the Fugitive Slave Act of 1850, such as authorization of cases decided wholly on ex parte testimony, and prohibition of a writ of Habeas Corpus for those arrested. If the foundation of the laws are unconstitutional, then the Fugitive Slave Act was not a law at all, and could not be enforced by magistrates and officers.

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.

Spooner then lays out that to go along with an unconstitutional law until it is repealed, is your silent agreement as though that the law is actually constitutional. By function if that law is enforced and you do nothing, what is the difference? He asserts that it is our right to resist that law from the start, that right is absolute and unqualified.

To say that an unconstitutional law must be obeyed until it is repealed, is saying that an unconstitutional law is just as obligatory as a constitutional one,—for the latter is binding only until it is repealed. There would therefore be no difference at all between a constitutional and an unconstitutional law, in respect to their binding force; and that would be equivalent to abolishing the constitution, and giving to the government unlimited power.

Since our framework of justice is weakened if unjust laws are enforced, the act of resistance is itself constitutional. It makes the Constitution stronger.

The exercise of the right is neither rebellion against the constitution, nor revolution—it is a maintenance of the constitution itself, by keeping the government within the constitution. It is also a defence of the natural rights of the people, against robbers and trespassers, who attempt to set up their own personal authority and power, in opposition to those of the constitution and people, which they were appointed to administer

As you can see, if we are to live under a Constitution that allows us to ensure justice we have to ensure it supports Natural Law. If we are to live under a Constitution that is enforceable, we must act to keep it strong and ensure it is a legal, functioning set of laws. The laws that are not supported by Natural Law transgress man’s rights, and those must be disobeyed, from the start.

The Constitution of No Authority

While the reasoning Spooner lays out in Defence For Fugitives slaves certainly echoes and rhymes with Madison and others views of the Constitution, in 1867 Spooner published a series of even more radical essays that called the validity of the Constitution into question by examining the idea of the Constitution acting as a social contract. These essays are No Treason: The Constitution of No Authority. We are going to draw from the sixth essay in the series for our discussion. This is going to challenge you like it did me, but it’s worth following Spooner’s line of thinking.

To begin, Spooner states that one of the consequences of Natural Law is that men and women are free to accumulate property and create. For centuries a contract has been the convention with which the terms of agreement have been enforced. It is a record of what was promised and what was given in a transaction or as demonstration of ownership. For Spooner, contracts were the irreplaceable underpinning of civilization, and people were naturally free to enter into contracts and had the expressed right to enforce them in order to protect themselves.

A signature was therefore held as the signifying mark or identifier that some had entered into a binding contract. Citing English law, he detailed that contracts were not enforceable without the signature of all parties involved, and common law would not uphold verbal agreements in the same fashion as a signed document.

All of this is very practical.

So Spooner then asks where are the signatures of the citizens who are currently regulated under the US Constitution. If the Constitution is legally binding and upheld in court, where are the requisite signatures? For each generation.

This is the supreme law of the land, and THE contract for us all but we are not asked if we wish to enter into this social contract. We certainly can’t opt out, for example, if we refuse to pay taxes. As individuals we are never voluntarily consenting to the constraints of the Constitution, and without a signature are we legally bound to the Constitution in the same way we are if we sign a lease or a mortgage?

Spooner, following this argument of legal contracts, asks that even if the generation that signed the Constitution was bound to its rules, can those signatories make that legal decision to bind future generations? Common sense says that no other legal document binds future generations to comply when they have not had a chance to make the decisions themselves. Our courts currently function in that fashion. I am not legally responsible for a document that my father signed for his business if I am not named in the document and yield my consent for the contract’s constraints.

The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, 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.

If the US Constitution is like a contract for a corporation, it doesn’t function as one, because with corporate contracts new signatories must be named once the original executors of the corporate agreement are named.

Voting does not constitute even a tacit agreement in Spooner’s view, because it is anonymous. Our public servants cannot see who voted for a group of representatives. So no legal, binding responsibility is supported there. In a sense, it would be similar to 5 people sitting in the lobby of an attorney's office expecting that attorney to render legal advice on the basis of all 5 remaining anonymous. How can that attorney render services if he doesn’t know who he is representing? For Spooner, voting becomes an act of self defense, because in order to prevent your neighbors from enacting laws that take your property, you MUST cast a vote, yet casting that vote doesn’t identify you among a dissenting majority, or even a dissenting minority. It is anonymous. There is no contract here. Take this line of reasoning further and we see that we can’t really call elected representatives public servants or agents, because that role needs to be defined with an agreement of who is responsible for that servant or agent's actions. In a legal agreement, my employees who fail to perform their jobs when building a home are my liability if you decide to take me to court for failure to build your home in accordance with local building code ordinances. With public servants, no such relationship exists. I cannot sue you for voting for the guy who allowed a reservoir to skip safety inspection and resulting in a flood in spring. I don’t know if you voted for that “official” or not.

For still another reason they are neither our servants, agents, attorneys, nor representatives. And that reason is, that we do not make ourselves responsible for their acts. If a man is my servant, agent, or attorney, I necessarily make myself responsible for all his acts done within the limits of the power I have intrusted to him. If I have intrusted him, as my agent, with either absolute power, or any power at all, over the persons or properties of other men than myself, I thereby necessarily make myself responsible to those other persons for any injuries he may do them, so long as he acts within the limits of the power I have granted him. But no individual who may be injured in his person or property, by acts of Congress, can come to the individual electors, and hold them responsible for these acts of their so-called agents or representatives. This fact proves that these pretended agents of the people, of everybody, are really the agents of nobody.

Did Madison or Hamilton Anticipate This Argument

The Declaration of Independence, the opener for the twenty years evolution of political theory, set the tone that Madison continued to support via a strong adherence to republicanism. “The just powers of the consent of the governed” is the preamble that the colonists all believed empowered them to voluntarily grant their authority to representatives in the Congress, in the courts, the office of President, or the political offices of their states.

But what did it mean when a select group of people wished to propose a new form of government for all the citizens, what mechanism existed to accomplish this? Madison observed that objectivity and great virtue would be required to remain above the urgency rising from the difficulties that the Articles of Confederation could not provide solutions for. Yet many critics of the Constitutional Convention argued that very thing - how could a small group take this on for 13 separate states. Washington and others all expressed their misgivings that the Articles of Confederation were failing to keep the nation together, but clearly “consent of the governed” meant that a majority of the population would have to identify that there was a problem and that a collective solution was needed. In 1787, Congress directed that a convention be formed that amended the existing Article of Confederations alone, and not produce a whole new form of government.

While Madison believed that a new form of government, a blend of national and federated powers, should be achieved as an initiation of a long standing framework for governing, Thomas Jefferson believed that a constitutional convention should be held every 19 years. Madison felt that this would undermine the strength of constitutional government, and that too many alterations would sow the seeds of doubt among citizens. And provide opportunity for attempts at creating a government favored by a faction that had won the hearts of the people but may not have the interests of the people at heart.

So if a set of rules could be set in place that would preserve the states status as sovereign nations, yet allow for a stronger central government that could protect the states and negotiate treaties on their behalf, the Constitution and new form of government must not be approved by Congress. Congress would be perceived as guarding their own interests and not consulting with each state's citizenry. Each state would hold its own convention for ratification, and would decide who to include as members to approve its adoption. Amendments could not be offered in the ratification process, and the vote would be a yes or not vote, with all 13 states being required to institute this experimental form of government. Richard Henry Lee attempted to introduce a poison pill strategy by asking for amendments, as there were no provisions resembling the Bill of Rights in the initial form of the Constitution. This failed, and from 1787 to 1791 the individual rights were in question until the 10 amendments were added.

As Madison said

Philadelphia was only the start. As James Madison explained, the Constitution “was nothing more than the draft of a plan, nothing but a dead letter, until life and validity were breathed into it by the voice of the people, speaking through the several State Conventions.”

Copies of the Constitution were distributed nationwide to legislatures and newspapers. In order to present the new proposed form of government in the best light, Madison, Hamilton and John Jay wrote a series of essays known today as the Federalist Papers where they addressed concerns and counterarguments. These do not directly address the issue that Spooner would raise in 1867, but there are concepts that would be appropriate to understand as to where the Constitution derives its consent.

In Federalist 10, Madison argues that the Constitution preserves the rights of the minority by keeping the ability for factions to exert their desires over the entire population. Direct democracy would enable this, while a republic, and large one, would provide a larger variety of factions and a variety of leaders as representatives, making a single coalition harder to achieve.

In Federalist 39 Madison addresses the many elements that will preserve the autonomy and power of the states. One would be

Each state in ratifying the constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act.

Another preservation of peoples consent would be via representation in the House of Representatives where citizens would be

represented in the same proportion, and on the same principle, as they are in the legislature of a particular state.

Hamilton believed that the consent was derived from many areas. From the Federalist 1 he states

The necessity of a government at least equally energetic with the one proposed, to the attainment of this object . . . The conformity of the proposed constitution to the true principles of republican government . . . Its analogy to your own state constitution . . . and lastly, The additional security, which its adoption will afford to the preservation of that species of government, to liberty and to property.

In Federalist 22 Hamilton implies that because there is a process to amend the Constitution, consent of the states is maintained. And because the states themselves were asked to ratify, they were included in this binding agreement. Finally, in Federalist 33 Hamilton states that adherence to the laws by the states would signify the acceptance of the Constitution’s authority. With both Founders the concept of nullification, while not state implicitly, is present.

But again, it would be the states and there political leaders would be acting as the agents of the citizens. This does not answer Spooner’s misgivings.

Ok, So Now What?

This feels a bit like the ending of finding Nemo, where the fish, after helping Nemo escape to also gain their freedom. A lot of preamble about states rights as the mechanism to prevent the rise of a centralized power and in theory would preserve our individual rights.

But there has been a change of emphasis. While the Constitution enshrines our rights with regard to Natural Law, Spooner’s point still stands: popular sovereignty and merely paying taxes is not the same as giving your consent. And there is no renewal of that consent. Jefferson came the closest with his idea of a new constitutional convention every 19 years, but that still could only be accomplished via representatives and not directly. In a sense, Madison and Hamilton both expressed the sentiment that factions need to be kept at bay, because via emotional extremism, populations could be manipulated into throwing out the government if a majority voted to toss the entire framework out. For our own good, the Constitution was locked into place because in Madison and many others' views, it limited the powers of each element to preserve the liberty that the states were also charged with preserving. The states were sovereign, vesting the federal government with certain powers to act on their behalf, and with the Bill of Rights, the new federal government could keep the states from trampling on the rights of the citizens.

There is a consolation as well with the Bill of Rights, as they were no present when the Constitution was passed. We had a period when those precious liberties were not called out, yet the process that Madison envisioned worked. Originally Madison expressed that since the Constitution had the clause “those rights not expressed here are reserved for the states, or the people” that there was no need for a Bill of Rights. But his thinking evolved, and Richard Henry Lee’s failed attempt at adding them earlier was finally fulfilled.

Operationally we are under the jurisdiction of the Constitution, and while Spooner has illustrated a great weakness regarding individual consent, there are other avenues of restraint that are available to us that we just don’t use. The states must use the 10th Amendment and enforce nullification. We simply wait for the courts to rule in our favor if we get lucky. We don’t need Spooner to tell us what the result with that method yields. Jury nullification is another method of acting as a constraint against laws that are not in our favor. Finally, as Spooner said, we have to abandon the idea that an unconstitutional law remains a law until the behemoth we call our government takes action. Madison and Jefferson took immediate action against the Alien and Sedition act with both the 10th Amendment and with Kentucky and Virginia passing laws declaring those unconstitutional laws void. An unconstitutional law is immediately void, so we are not compelled to act. Spooner was very clear in that respect, we should communicate his compelling logic so that we can take more responsibility clawing back our rights.

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