The Ludwig von Mises Institute presents The Libertarian Tradition, an audio series with Jeff Brigenbach.
It is in January of each year when, if we are wise, we raise a toast, or otherwise appropriately celebrate, the birthday of Lysander Spooner, one of the greatest of all libertarian theoreticians.
Spooner was born on January 19th, to be precise, on a farm near the central Massachusetts town of Athol, about 70 miles west of Boston.
The year was 1808. Thomas Jefferson was just about to begin his final year in the White House, which had only opened for business, so to speak, a mere eight years before.
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In the early 1820s a very young Lysander Spooner received a proposition from his father. When Lysander turned 16 in 1824, he could leave home and try to make his own way in the world, or, if he preferred, he could remain on the farm for another nine years, until he was 25.
During this time, he would help his father, and his father, in return, would provide food, lodging, and what their official legal contract described as good educational advantages.
Lysander chose option two, and spent another nine years on the farm after his 16th birthday. He left at last in 1833, at the age of 25.
After a few months as a schoolteacher, a few weeks as a private tutor, and a few more weeks in the business offices of a retail store, he secured a position as a clerk in the office of the Registrar of Deeds in Worcester, Massachusetts, the biggest town in the immediate area, about 40 miles south of his birthplace.
He quickly acquired a reputation for conscientiousness, accuracy and reliability.
He quickly came to the attention of two prominent local attorneys, John Davis, an anti-slavery
Whig, who would later serve as governor of Massachusetts and in both houses of the U.S.
Congress representing Massachusetts, and Charles Allen, another anti-slavery Whig, who would
Davis and Allen encouraged young Spooner to consider taking up the study of law and pursuing
a legal career.
They took him into their law offices as a student.
But when he completed the standard three-year curriculum in two years, he found himself
barred from practicing law.
Not because he had not devoted the customary three years to his studies, but because the
state of Massachusetts required five years of study from any would-be lawyer who was
not a college graduate.
Spooner protested, and Davis and Allen backed his protest.
When their brilliant young students submitted a petition to the legislature seeking a change
in the law, they got it read.
Davis, by then governor of the state, and Allen, by then a state senator, also saw to
it that the law was changed.
By 1836, at the age of 28, Spooner could legally practice law in Massachusetts.
He was to practice law in Massachusetts for the rest of his long life, though it never
made him much money.
His problem was that he kept driving clients and prospective clients away by publicizing
and Spooner had radical opinions on just about anything you could name.
He had come from a family of ardent abolitionists, so he was long used to the idea of holding
views most other people didn't agree with.
And during his years as a law student, Spooner had begun broadening his radicalism beyond
just the slavery issue.
He devoted much of his spare time in the early to mid-1830s, for example, to reading theology,
and he soon began publishing his views on what he was reading.
In 1834, he published a pamphlet entitled The Deist's Immortality and an essay on man's
accountability for his belief.
In 1836, just as his legal right to practice law in Massachusetts was receiving official
Approval, he published another pamphlet entitled, The Deists' Reply to the Alleged Supernatural
Evidences of Christianity.
Now don't get me wrong here, I'm not saying that Spooner scared away business merely by
coming out as a free thinker.
Freethought was a popular movement in 19th century America, it was a broad coalition.
Of course, it included atheists and agnostics, but their numbers were small.
It also included the more numerous deists, people who believed in a god who had made
the universe and then, in effect, walked away, a god who neither listened to nor acted upon
the prayers of individual humans, a god who refrained from interfering in the world he
The Free Thought Movement included many religious leaders and thinkers as well, mostly Unitarians
and Transcendentalists with here and there a few Quakers thrown in, religious thinkers
who were critical of the idea of turning to religious dogma as a source of truth or authority,
Religious thinkers who rejected biblical miracles and the divinity of Jesus.
The Free Thought Movement also included thousands of people whose main interest was religious
freedom, an aggressive activist commitment to separation of church and state.
And free thinkers generally insisted that human progress depended on the exercise of
to each individual's reason with regard to all knowledge, even knowledge of so-called
sacred things.
There were lots of free thinkers in the America of 1836.
But as Spooner's biographer Charles Shively puts it, other critics of traditional dogma
were soft and gentlemanly, solicitous of their opposition.
Spooner was uncompromising and harsh with clergymen and believers.
In Spooner's pamphlets, as Shively describes them, Christ is dismissed as a charlatan,
and the Bible as an unreliable set of old wives' tales, if not outright lies.
Clergymen knew all this, Spooner argued, but they used their offices for prestige and an
easy living.
His pamphlets were intended, according to Spooner himself, to awaken opposition to the
the clergy and Christianity, because they delude and enslave the imaginations of the
young and make men dupes, fools, slaves, cowards, bigots and fanatics.
Potential clients tended to shy away from engaging such an intransigent firebrand to
represent them in court.
Spooner, on the other hand, had discovered his true calling, the thing he most enjoyed
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In 1837, when he was 29 years old, he bought land in Ohio, only to lose everything when
land prices collapsed in the once-famous Panic of 1837, which was followed by a five-year
depression, including bank failures and abnormally high rates of unemployment.
Then, some six years later, now in his mid-30s, Spooner once again put all his savings behind
a business venture.
This time it was a private postal service that carried letters between addresses in
Boston and Baltimore.
This venture prospered quickly and expanded its services to include New York and Philadelphia,
but its success was short-lived.
It was forced out of business, scarcely six months after opening its doors, by the U.S.
government, intent upon enforcing the Private Express statutes, which prohibit the establishment
of Private Firms to Deliver First Class Mail.
Characteristically, Spooner wrote a pamphlet called The Unconstitutionality of the Laws
of Congress Prohibiting Private Mails, in which he defended his case.
But it was of no avail.
Again, Spooner lost everything.
Thereafter he lived the life of an urban recluse, reading, studying and writing, living on his
His meager earnings, never again investing any of them in speculative business ventures.
No sooner had his American Letter mail company been forced into bankruptcy by the U.S. government
than Spooner sat down to work on a new book, with the provocative title, The Unconstitutionality
of Slavery.
Historian Tom Woods, author of the best-selling Politically Incorrect Guide to American History,
in a 2006 lecture on American radicalism in the years before the Civil War, gives a nice
explanation of exactly why Spooner's title, The Unconstitutionality of Slavery, was so
provocative when it was published in 1845.
The reader opens the book, Woods explains, expecting to find a predictable anti-slavery
He's claiming that the Constitution not only does not sanction slavery, but is in fact an anti-slavery document.
And at first glance that just seems absurd, even ridiculous.
Surely there are clauses in the Constitution that sanction or at least refer to slavery.
So what exactly can Spooner mean here?
Well, let's first note the context of the unconstitutionality of slavery.
What exactly can Spooner mean here?
Well, let's first note the context of the unconstitutionality of slavery.
Spooner is breaking here with more mainstream, you might say, abolitionists,
like William Lloyd Garrison, a fellow, I guess, Massachusettsian.
Garrison was probably the best known abolitionist in the United States.
He was the editor of a paper called The Liberator that was published since 1831.
and he also was involved in regional and national anti-slavery organizations and
Garrison took the view that the Constitution was a pro-slavery document
and therefore needed to be repudiated by abolitionists so Garrison took the view
that the Constitution was a covenant with with hell basically it was a
covenant with death that it had blood on its hands that no abolitionist could be
Why did Spooner argue that slavery was unconstitutional? How did he justify this view? By focusing
his attention on the exact wording of the Constitution. Here Tom Woods quotes Spooner's
exact words.
Everybody must admit that the Constitution itself contains no language from which alone
any court that were either strangers to the prior existence of slavery or that did not
assume its prior existence to be legal could legally decide that the Constitution sanctioned
it.
And this is the true test for determining whether the Constitution does or does not
sanction slavery, that is, whether a court of law strangers to the prior existence of
If slavery, or not assuming its prior existence to be legal, looking only at the naked language of the instrument, could consistently with legal rules judicially determine that it sanctions slavery.
Every lawyer who at all deserves that name knows that the claim for slavery could stand no such test.
The fact is palpable that the Constitution contains no such legal sanction,
that it is only by unnecessary implication and inference, by innuendo and double entendre,
by the aid of exterior evidence, the assumption of the prior legality of slavery,
and the gratuitous imputation of criminal intentions that are not avowed in legal terms,
that any sanction of slavery as a legal institution can be extorted from it.
The unconstitutionality of slavery was widely read in abolitionist circles over the next decade.
In the crucial presidential election year of 1860, it was reissued in a new edition.
By 1847, only two years after its original publication, it had become sufficiently
popular and sufficiently influential that William Lloyd Garrison's close associate,
Wendell Phillips, devoted an entire pamphlet to attacking Spooner's arguments. Phillips wrote
that Mr. Spooner's idea is practical no-governmentism. It leaves everyone to do what is right in his own eyes.
Actually, there was something to this criticism. In point of fact, Spooner did not support either the U.S. Constitution or the U.S. government, or any government.
It's not certain whether he held this position in the 1840s, but he certainly held it in the 1860s.
In a letter to a fellow abolitionist, he argued that the Constitution could not be supported by honest men who know its true character.
But he felt at perfect liberty to, as he put it, interpret the Constitution on those points wherein it is right,
and then appeal to those who profess to be governed by it to act up to their own standard.
Again, Tom Woods offered a memorable summary of Spooner's view in his lecture back in 2006.
He wrote a lengthy book, or a study, called No Treason, the Constitution of No Authority following the war.
And he uses the words no treason to indicate that the southern states committed no treason when they seceded.
and Spooner went to the radical conclusion after the war,
two or three decades after he'd written the Unconstitutionality of Slavery,
he drew the conclusion that really no constitution can ever be legally binding
on anyone who did not himself actually, officially and explicitly agree to it and sign it.
And Spooner said, you know, whatever document this is, the Constitution, the fact is I didn't sign it,
Nobody living today signed it, so how can it possibly bind me?
There's no other aspect of life in which I'm just simply assumed to have agreed to something that I never agreed to.
And so what Spooner concluded was that since there was no universal consent to the Constitution,
and even if there had been, all those people who consented to it are now dead,
none of us have consented to it, it has no authority over any of us, strictly speaking.
Lysander Spooner died in Boston in 1887, a few months after his 79th birthday.
He wrote about money and banking, religious topics, and much else over the course of his
long career.
But it is his views on politics and government that have made him immortal.
Let me leave you with a justly famous quotation from No Treason.
This passage was composed sometime in 1869 or 1870, and it conveys very well, I think,
the exhilarating directness and plain-spokenness of Smooner's style, as well as the purity
of his libertarian message.
It is true that the theory of our Constitution is that all taxes are paid voluntarily, that
that our government is a mutual insurance company, voluntarily entered into by the people
with each other, that each man makes a free and purely voluntary contract with all others
who are parties to the Constitution, to pay so much money for so much protection, the
same as he does with any other insurance company, and that he is just as free not to be protected
and not to pay tax as he is to pay a tax and be protected.
But this theory of our government is wholly different from the practical fact.
The fact is that the government, like a highwayman, says to a man, your money or your life.
And many, if not most, taxes are paid under the compulsion of that threat.
The government does not, indeed, waylay a man in a lonely place, spring upon him from
the roadside, and, holding a pistol to his head, proceed to rifle his pockets.
But the robbery is nonetheless a robbery on that account, and it is far more dastardly
and shameful.
The 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 travelers
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 as 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 villainies
as these.
In short, he does not, in addition to robbing you, attempt to make you either his dupe or
his slave.
This is Jeff Rigenbach.
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