WEBVTT NOTE Lysander Spooner and Other Antebellum Radicalism 1 00:00:00.000 --> 00:00:04.280 What I think I'd like to do for my portion of this today 2 00:00:04.360 --> 00:00:08.000 is to focus on a few areas 3 00:00:08.080 --> 00:00:10.920 and focus on them in some detail, 4 00:00:11.000 --> 00:00:12.920 instead of trying to cover absolutely everything. 5 00:00:13.000 --> 00:00:15.200 I mean, the chapter five has a lot of detail in it 6 00:00:15.280 --> 00:00:17.640 about a lot of different things, 7 00:00:17.720 --> 00:00:21.040 and I'd like to elaborate on some of that, 8 00:00:21.120 --> 00:00:22.960 and I'd also like to include some material 9 00:00:23.040 --> 00:00:25.680 that's not contained in the chapter. 10 00:00:25.760 --> 00:00:27.800 And we'll see how far we get with this. 11 00:00:27.800 --> 00:00:32.800 I'd like to cover three things, and we might do only two and then just have the discussion. 12 00:00:32.800 --> 00:00:39.800 So I'm going to start with the two that you will find the least about in the text, 13 00:00:39.800 --> 00:00:42.800 so that if we had to miss one, it would be one that's already in the text. 14 00:00:42.800 --> 00:00:49.800 So here we are talking about the antebellum period, the several decades leading up to the war, 15 00:00:49.800 --> 00:00:54.800 and what I've chosen to start with is a man named Lysander Spooner, 16 00:00:54.800 --> 00:00:56.800 Lysander Spooner 17 00:01:24.800 --> 00:01:31.800 So what I did was I tried to organize a way of looking at Lysander Spooner and why he's significant or at least interesting. 18 00:01:31.800 --> 00:01:37.800 There really is nobody quite like this man. And then I want to explain to you why he's relevant. 19 00:01:37.800 --> 00:01:42.800 Spooner was born in Massachusetts in 1808, dies in 1887. 20 00:01:42.800 --> 00:01:50.800 He's a radical abolitionist lawyer who's involved in a number of radical causes over the course of his career. 21 00:01:50.800 --> 00:01:57.800 in the 1840s, he runs into some legal problems with the U.S. government because he tries running his own postal service. 22 00:01:57.800 --> 00:02:01.800 He thinks the post office in his day is slow and inefficient, so he's going to run his own. 23 00:02:01.800 --> 00:02:04.800 He doesn't see there's any law against that. 24 00:02:04.800 --> 00:02:11.800 Right. The Constitution does say the U.S. government can establish post offices, but it doesn't say nobody else can. 25 00:02:11.800 --> 00:02:16.800 So he started his own American letter mail company. 26 00:02:16.800 --> 00:02:25.200 So, he started his own American Letter Mail Company and the U.S. government protested this vigorously 27 00:02:25.200 --> 00:02:30.400 and in fact, basically litigated him into bankruptcy. So, he had to give up. So, he tried. 28 00:02:30.400 --> 00:02:34.600 So, if anybody, sometimes I get people saying, you know, I'm going to start my own and I just remind them, 29 00:02:34.600 --> 00:02:38.500 look, Lysander Spooner tried that, they're just not going to let you get away with it. 30 00:02:38.500 --> 00:02:43.700 So, that was the sort of thing he did. In fact, he wrote a whole essay about the unconstitutionality 31 00:02:43.700 --> 00:02:47.700 of Prohibiting Him from Delivering Mail if He Wanted to. 32 00:02:47.700 --> 00:02:55.940 Well, what I'm focusing on here is a lengthy work, 300 pages at least, that he wrote that 33 00:02:55.940 --> 00:02:58.700 came out in the mid to late 1840s, because he added to it. 34 00:02:58.700 --> 00:03:03.700 He had a part one, then later in the 1840s a part two, called The Unconstitutionality 35 00:03:03.700 --> 00:03:04.700 of Slavery. 36 00:03:04.700 --> 00:03:06.540 Now, he chooses this title deliberately. 37 00:03:06.540 --> 00:03:07.980 It's quite provocative. 38 00:03:07.980 --> 00:03:12.540 He's claiming that the Constitution not only does not sanction slavery, but is in fact an 39 00:03:12.540 --> 00:03:18.540 and an anti-slavery document, and at first glance that just seems absurd, even ridiculous. 40 00:03:18.540 --> 00:03:25.540 Surely there are clauses in the Constitution that sanction or at least refer to slavery. 41 00:03:25.540 --> 00:03:28.540 So what exactly can Spooner mean here? 42 00:03:28.540 --> 00:03:32.540 Well let's first note the context of the unconstitutionality of slavery. 43 00:03:32.540 --> 00:03:38.540 Spooner is breaking here with more mainstream, you might say, abolitionists like William Lloyd Garrison, 44 00:03:38.540 --> 00:03:42.540 and a fellow, I guess, Massachusettsian. 45 00:03:42.540 --> 00:03:47.540 Garrison was probably the best known abolitionist in the United States. 46 00:03:47.540 --> 00:03:52.540 He was the editor of a paper called The Liberator that was published since 1831. 47 00:03:52.540 --> 00:03:57.540 And he also was involved in regional and national anti-slavery organizations. 48 00:03:57.540 --> 00:04:01.540 And Garrison took the view that the Constitution was a pro-slavery document 49 00:04:01.540 --> 00:04:04.540 and therefore needed to be repudiated by abolitionists. 50 00:04:04.540 --> 00:04:10.540 So Garrison took the view that the Constitution was a covenant with hell, basically. 51 00:04:10.540 --> 00:04:14.540 It was a covenant with death, that it had blood on its hands, 52 00:04:14.540 --> 00:04:21.540 that no abolitionist could be loyal to it or even could vote under the auspices of the Constitution 53 00:04:21.540 --> 00:04:25.540 because it's so tied northerners to the slave system. 54 00:04:25.540 --> 00:04:29.540 So Garrison took this view and publicly denounced the Constitution. 55 00:04:29.540 --> 00:04:42.540 In the 1840s he even burned a copy of the Constitution publicly, and in fact here I had just a short excerpt from an article that Garrison wrote in his newspaper, The Liberator, at the end of 1832. 56 00:04:42.540 --> 00:04:46.540 Here's how Garrison felt about the Constitution. He said, 57 00:04:46.540 --> 00:04:54.540 There is much declamation about the sacredness of the compact which was formed between the free and slave states on the adoption of the Constitution. 58 00:04:54.540 --> 00:05:10.540 A sacred compact, forsooth, we, meaning we abolitionists, pronounce it the most bloody and heaven-daring arrangement ever made by men for the continuance and protection of a system of the most atrocious villainy ever exhibited on earth. 59 00:05:10.540 --> 00:05:16.860 Yes, we recognize the compact, but with feelings of shame and indignation, and it will be held 60 00:05:16.860 --> 00:05:21.580 in everlasting infamy by the friends of justice and humanity throughout the world. 61 00:05:21.580 --> 00:05:26.580 It was a compact formed at the sacrifice of the bodies and souls of millions of our race 62 00:05:26.580 --> 00:05:31.860 for the sake of achieving a political object, an unblushing and monstrous coalition to do 63 00:05:31.860 --> 00:05:34.180 evil that good might come. 64 00:05:34.180 --> 00:05:38.100 Such a compact was in the nature of things and according to the law of God, null and 65 00:05:38.100 --> 00:05:40.180 void from the beginning. 66 00:05:40.180 --> 00:05:44.820 No body of men ever had the right to guarantee the holding of human beings in bondage. 67 00:05:44.820 --> 00:05:49.260 Who or what were the framers of our government that they should dare confirm and authorize 68 00:05:49.260 --> 00:05:55.380 such high-handed villainy, such flagrant robbery of the inalienable rights of man, such a glaring 69 00:05:55.380 --> 00:06:01.020 violation of all the precepts and injunctions of the Gospel, such a savage war upon a sixth 70 00:06:01.020 --> 00:06:02.620 part of our whole population? 71 00:06:02.620 --> 00:06:06.520 And then he goes on and gets really serious after that. 72 00:06:06.520 --> 00:06:13.280 So that's some indication of the style of rhetoric you might encounter in reading Garrison 73 00:06:13.280 --> 00:06:15.360 and his followers. 74 00:06:15.360 --> 00:06:20.840 So when Spooner comes along and in fact acquits the constitution of any association with slavery, 75 00:06:20.840 --> 00:06:24.920 this is something quite daring and original. 76 00:06:24.920 --> 00:06:27.520 Well how is Spooner going to make this argument? 77 00:06:27.520 --> 00:06:33.800 Well let's first recognize that later in his career when the Civil War came or war between 78 00:06:33.800 --> 00:06:46.800 When that war came, Spooner, although an abolitionist, was dead set against the war, was totally anti-Lincoln, thought the war was an obvious sham, that it had nothing to do with slavery. 79 00:06:46.800 --> 00:06:50.800 It was simply fought to coerce the southern states to stay in the Union. 80 00:06:50.800 --> 00:06:57.800 And Spooner believed that the southern states had as much right to leave the Union as a slave did to run away from his master. 81 00:06:57.800 --> 00:07:04.800 So, he both believed in radical antislavery and he also believed in radical secessions. 82 00:07:04.800 --> 00:07:14.800 And in fact, he wrote a lengthy book or a study called No Treason, the Constitution of No Authority following the war. 83 00:07:14.800 --> 00:07:21.800 And he uses the words no treason as if to indicate that the southern states committed no treason when they seceded. 84 00:07:21.800 --> 00:07:30.300 And Spooner went to the radical conclusion, after the war, two or three decades after he'd written the Unconstitutionality of Slavery, 85 00:07:30.300 --> 00:07:41.800 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. 86 00:07:41.800 --> 00:07:50.300 And Spooner said, you know, whatever document this is, the Constitution, the fact is I didn't sign it, nobody living today signed it, 87 00:07:50.300 --> 00:07:59.300 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. 88 00:07:59.300 --> 00:08:09.300 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. 89 00:08:09.300 --> 00:08:14.300 None of us have consented to it. It has no authority over any of us, strictly speaking. 90 00:08:14.300 --> 00:08:20.300 That's a very radical position and he's not necessarily taking that position in the unconstitutionality of slavery, 91 00:08:20.300 --> 00:08:22.300 but that was the argument that he later made. 92 00:08:22.300 --> 00:08:28.300 That's a big problem in political philosophy is trying to reconcile freedom and authority. 93 00:08:28.300 --> 00:08:36.300 John Locke in the late 17th century had argued that people sort of implicitly consent to the government over them 94 00:08:36.300 --> 00:08:38.300 and any constitution that backs it. 95 00:08:38.300 --> 00:08:43.300 They imply that they consent to it by the fact that they continue to live under that government. 96 00:08:43.300 --> 00:08:45.300 But for Spooner, that's not enough. 97 00:08:45.300 --> 00:08:49.300 If I haven't given my act of consent, then it cannot be considered binding. 98 00:08:49.300 --> 00:08:52.300 So he ultimately takes this very radical position. 99 00:08:52.300 --> 00:08:56.300 What he says in the Unconstitutionality of Slavery is simply this, 100 00:08:56.300 --> 00:09:01.300 that if the meaning of consent is going to be coherent, 101 00:09:01.300 --> 00:09:04.300 if we're going to understand consent as a meaningful idea, 102 00:09:04.300 --> 00:09:10.300 then although it's true that the U.S. Constitution has not been consented to by every single person, 103 00:09:10.300 --> 00:09:15.300 He says that, if it's going to be legitimate at all, what we have to understand is that 104 00:09:15.300 --> 00:09:20.300 if we're going to take for granted that the U.S. Constitution has the consent of the people 105 00:09:20.300 --> 00:09:27.300 and is the product of the people, then we cannot assume that this Constitution takes away people's rights 106 00:09:27.300 --> 00:09:31.300 because people cannot be assumed to have consented to something that would do that. 107 00:09:31.300 --> 00:09:37.300 So we can only assume that people would consent to a document that promotes justice. 108 00:09:37.300 --> 00:09:40.800 So we must always, in our interpretation of the Constitution, 109 00:09:40.800 --> 00:09:46.300 incline in the direction of the most just interpretation of its clauses. 110 00:09:46.300 --> 00:09:50.300 Because universal consent can never be, 111 00:09:50.300 --> 00:09:53.300 and because we have to, in effect, rely on implied consent, 112 00:09:53.300 --> 00:09:56.800 well, we can only assume that people would consent, 113 00:09:56.800 --> 00:10:00.800 in effect, to be governed according to justice. 114 00:10:00.800 --> 00:10:02.800 Now, we'll put that on the back burner for a moment 115 00:10:02.800 --> 00:10:04.800 and consider this principle. 116 00:10:04.800 --> 00:10:08.200 What I have up here is original meaning versus original intent. 117 00:10:08.200 --> 00:10:19.500 Every time to this day that a potential Supreme Court justice is being confirmed by the Senate, 118 00:10:19.500 --> 00:10:23.800 always there's some discussion of what does this person believe about original intent. 119 00:10:23.800 --> 00:10:28.600 Original intent simply is a sort of school of jurisprudence 120 00:10:28.600 --> 00:10:31.800 that seeks to interpret the Constitution by trying to figure out 121 00:10:31.800 --> 00:10:41.800 or, more precisely, what the people who ratified the Constitution in each state believed that it meant. 122 00:10:41.800 --> 00:10:46.800 And the idea of original intent, therefore, is that today the Constitution is still the same document 123 00:10:46.800 --> 00:10:51.800 and we should interpret it in light of what its drafters and its ratifiers meant by it. 124 00:10:51.800 --> 00:10:55.800 Spooner takes a somewhat different spin on this. 125 00:10:55.800 --> 00:10:59.800 Spooner says that what's more important is the original meaning of the document. 126 00:10:59.800 --> 00:11:02.800 And he says that's not the same thing as original intent. 127 00:11:02.800 --> 00:11:05.800 That you may have intended something in the Constitution, 128 00:11:05.800 --> 00:11:09.800 but the only thing that could remotely bind us would be the Constitution itself, 129 00:11:09.800 --> 00:11:11.800 would be the document itself. 130 00:11:11.800 --> 00:11:14.800 Not secret conversations behind closed doors, 131 00:11:14.800 --> 00:11:17.800 or not something that may be in the back of your mind, 132 00:11:17.800 --> 00:11:20.800 you sort of, in a fog, sort of intended to do. 133 00:11:20.800 --> 00:11:22.800 But what did you actually write down? 134 00:11:22.800 --> 00:11:26.800 Maybe you intended, for example, to sanction slavery. 135 00:11:26.800 --> 00:11:31.800 But if I don't see slavery in there, then we're not going to assume it exists. 136 00:11:31.800 --> 00:11:37.800 So he is focusing not so much on what the intention behind a constitutional clause was, 137 00:11:37.800 --> 00:11:40.800 but rather what is the meaning of the words in that clause. 138 00:11:40.800 --> 00:11:43.800 I don't care what James Madison thought in 1787 139 00:11:43.800 --> 00:11:47.800 or what so-and-so thought at the ratifying convention somewhere. 140 00:11:47.800 --> 00:11:50.800 What do the words mean? What did they mean then? 141 00:11:50.800 --> 00:11:52.800 What do these words themselves actually mean? 142 00:11:52.800 --> 00:11:54.800 So that's what he means by original meaning. 143 00:11:54.800 --> 00:11:57.640 We're going to look to the text of the document alone 144 00:11:57.640 --> 00:12:01.040 and not to any mediating sources like 145 00:12:01.040 --> 00:12:05.520 constitutional convention or ratifying conventions. 146 00:12:05.520 --> 00:12:08.120 Now, what Spooner immediately notices is that 147 00:12:08.120 --> 00:12:10.240 a lot of words have many meanings. 148 00:12:10.240 --> 00:12:13.200 In fact, he says the word free or freedom 149 00:12:13.200 --> 00:12:15.680 has dozens of potential meanings. 150 00:12:15.680 --> 00:12:19.080 So, original meaning does not necessarily solve 151 00:12:19.080 --> 00:12:21.000 the question of how to interpret the Constitution 152 00:12:21.000 --> 00:12:23.200 because words have multiple meanings. 153 00:12:23.200 --> 00:12:29.200 How do we decide between all the multiple meanings that attach to the various words we find in the Constitution? 154 00:12:29.200 --> 00:12:36.200 And he says we need to have some way to arbitrate between potentially divergent meanings of these words. 155 00:12:36.200 --> 00:12:43.200 And he says our great arbiter in deciding which meaning of these words we should use is natural law. 156 00:12:43.200 --> 00:12:49.200 Now that's a concept that today, although it's having a little bit of a revival right now, 157 00:12:49.200 --> 00:12:58.200 Today would be considered sort of old-fashioned and archaic and law professors would sort of grin and giggle at it. 158 00:12:58.200 --> 00:13:02.200 But let's see what exactly Spooner means by natural law. 159 00:13:02.200 --> 00:13:11.200 By natural law, Spooner simply means in effect the rules of living that we sort of spontaneously recognize as being just. 160 00:13:11.200 --> 00:13:14.200 Rules that govern the interaction of human beings. 161 00:13:14.200 --> 00:13:21.200 Spooner says that natural law is something that, in many ways, you have already learned by the time you're, let's say, an advanced toddler. 162 00:13:21.200 --> 00:13:25.200 You've already learned the key precepts of natural law. 163 00:13:25.200 --> 00:13:29.200 Let me cite Spooner here. Spooner says, 164 00:13:29.200 --> 00:13:33.200 Children learn many principles of natural law at a very early age. 165 00:13:33.200 --> 00:13:39.200 For example, they learn that when one child is born, he or she will have a child. 166 00:13:39.200 --> 00:13:42.060 These are fundamental principles of natural law at a very early age. 167 00:13:42.060 --> 00:13:47.540 For example, they learn that when one child has picked up an apple or a flower it is his, 168 00:13:47.540 --> 00:13:50.980 and that his associates may not take it from him against his will. 169 00:13:50.980 --> 00:13:56.000 They also learn that if he voluntarily exchange his apple or flower with a playmate for some 170 00:13:56.000 --> 00:14:02.120 other article of desire, he has thereby surrendered his right to it and must not reclaim it. 171 00:14:02.120 --> 00:14:06.120 These are fundamental principles of natural law which govern most of the greatest interests 172 00:14:06.120 --> 00:14:10.860 of Individuals and Society, yet children learn them earlier than they learn that three and 173 00:14:10.860 --> 00:14:13.520 three are six or five and five ten. 174 00:14:13.520 --> 00:14:19.020 Well, in effect, these are the foundational principles of natural law, that in effect 175 00:14:19.020 --> 00:14:24.020 that you have a certain liberty when it comes to the use of your own faculties, that you 176 00:14:24.020 --> 00:14:28.880 have the right to acquire property and to exchange that property or to sell it. 177 00:14:28.880 --> 00:14:35.880 These are basic principles that everyone recognizes at an early age is what Spooner is suggesting. 178 00:14:36.120 --> 00:14:40.120 This, in effect, in a nutshell, is what the natural law is. 179 00:14:40.120 --> 00:14:46.120 Now, if I may just, because I love this quotation, if I may be excused, a brief digression. 180 00:14:46.120 --> 00:14:50.120 A lot of times people will say that, well, you can't really know what natural law is. 181 00:14:50.120 --> 00:14:55.120 It's kind of arbitrary. Your natural law may be different from mine, and nobody really knows what it is. 182 00:14:55.120 --> 00:14:58.120 It's very confusing. It's not very useful. 183 00:14:58.120 --> 00:15:04.120 And Spooner tried to explain why it is that people would think that natural law was confusing or not knowable. 184 00:15:04.120 --> 00:15:09.120 and what he suggested is that government has kind of screwed up our understanding of natural law 185 00:15:09.120 --> 00:15:12.120 because it violates natural law consistently. 186 00:15:12.120 --> 00:15:17.120 We understand naturally when we're children that I shouldn't yank that toy away from that other child 187 00:15:17.120 --> 00:15:20.120 or at least I learn it when my parents tell me I shouldn't. 188 00:15:20.120 --> 00:15:24.120 But ultimately we know if somebody takes something from us, we know we've been treated unjustly. 189 00:15:24.120 --> 00:15:27.120 We know we've been unjustly expropriated. 190 00:15:27.120 --> 00:15:32.120 Why is it that this is said to be so unclear? 191 00:15:32.120 --> 00:15:37.120 He says that since government is always stealing from you, but they call it taxation, 192 00:15:37.120 --> 00:15:43.120 or government is always kidnapping people, but they'll call it conscription or they'll give it some word, 193 00:15:43.120 --> 00:15:51.120 well, therefore, governments are constantly inverting or, in effect, misleading our understanding of natural law. 194 00:15:51.120 --> 00:15:55.120 And that's why it has become confusing, because on the one hand we say there's no stealing, 195 00:15:55.120 --> 00:15:58.120 but on the other hand we say, but those guys can steal. 196 00:15:58.120 --> 00:16:01.120 There's no kidnapping, but those guys can kidnap. 197 00:16:01.120 --> 00:16:02.120 So Spooner says, 198 00:16:31.120 --> 00:16:35.840 is a matter of very similar difficulty to what it would take to learn a system of mathematics 199 00:16:35.840 --> 00:16:38.360 which should consist of the mathematics of nature 200 00:16:38.360 --> 00:16:42.880 interspersed with such other mathematics as might be created by legislation 201 00:16:42.880 --> 00:16:47.800 in violation of all the natural principles of numbers and quantities. 202 00:16:47.800 --> 00:16:53.400 Well, he's going to use natural law as the arbiter between different meanings of words. 203 00:16:53.400 --> 00:16:58.600 And so that is to say, if there is a word that can be taken in more than one meaning, 204 00:16:58.600 --> 00:17:06.600 The law is going to take it in the meaning that in effect has it most consistent with the demands of natural law. 205 00:17:06.600 --> 00:17:14.600 That if there's a meaning of that word that might be inconsistent with the demands of natural law, that meaning will not be entertained by the law. 206 00:17:14.600 --> 00:17:24.600 So natural law in effect helps us to arbitrate between different meanings attached to words that are embedded within human laws. 207 00:17:24.600 --> 00:17:30.100 So, this is the central principle of Spooner's thinking. 208 00:17:30.100 --> 00:17:33.600 Law never gives the benefit of the doubt to violations of natural law. 209 00:17:33.600 --> 00:17:41.100 The law always gives the benefit of the doubt to freedom and to adherence to natural law. 210 00:17:41.100 --> 00:17:43.100 So, Spooner says this, 211 00:17:43.100 --> 00:17:47.600 Where words are susceptible of two meanings, one consistent and the other inconsistent, 212 00:17:47.600 --> 00:17:52.100 with justice and natural right, that meaning and only that meaning, 213 00:17:52.100 --> 00:17:57.100 No language except that which is peremptory and no implication except one that is inevitable 214 00:17:57.100 --> 00:18:02.100 shall be held to authorize or sanction anything contrary to natural right. 215 00:18:02.100 --> 00:18:09.100 No extraneous or historical evidence shall be admitted to fix upon a statute an unjust or immoral meaning 216 00:18:09.100 --> 00:18:14.100 when the words themselves of the act are susceptible of an innocent one. 217 00:18:14.100 --> 00:18:21.100 Spooner cites some legal cases that seem to support this manner of interpretation, he cites United States v. Fisher as reading, 218 00:18:44.100 --> 00:18:48.100 and use a court of justice to suppose a design to effect such objects. 219 00:18:48.100 --> 00:18:56.100 So that is to say, if you have a statute that violates natural law, 220 00:18:56.100 --> 00:19:03.100 that statute must be worded in such a way that it is absolutely clear that the legislator intended that. 221 00:19:03.100 --> 00:19:07.100 If there is even the slightest room for doubt that that is the meaning of the statute, 222 00:19:07.100 --> 00:19:12.100 then the more innocent meaning shall be assigned to it. 223 00:19:12.100 --> 00:19:17.540 Now, Spooner says this is not perfect, but this is at least what he says a scaffolding 224 00:19:17.540 --> 00:19:22.940 from which to erect that higher standard of law to wit that no language or authority whatever 225 00:19:22.940 --> 00:19:26.860 can legalize anything inconsistent with natural justice. 226 00:19:26.860 --> 00:19:32.340 He likewise quotes Jacob's Law Dictionary and says no law will make a construction to 227 00:19:32.340 --> 00:19:37.940 do wrong and there are some things which the law favors and some it dislikes. 228 00:19:37.940 --> 00:19:41.340 It favoreth those things that come from the order of nature. 229 00:19:41.340 --> 00:19:45.340 Again, that is the Spoonerite principle of interpretation. 230 00:19:45.340 --> 00:19:53.340 And in fact, there's a prominent case that I referred to in Chapter 5 from the 18th century in Britain called Somerset's case 231 00:19:53.340 --> 00:20:06.340 that also shows that in a case where the exact statute is unclear, the law always sides with natural law as opposed to siding with violations of natural law. 232 00:20:06.340 --> 00:20:12.040 If you noted in there, Somerset's case, which I mentioned in the discussion a couple of weeks ago, 233 00:20:12.040 --> 00:20:17.340 involved a slave from Jamaica, who had been brought to England by his master, 234 00:20:17.340 --> 00:20:21.340 and then the master tried to remove him from England once again. 235 00:20:21.340 --> 00:20:26.340 But some anti-slavery advocates argued that removing him from England was tantamount to kidnapping, 236 00:20:26.340 --> 00:20:28.340 because the slave did not wish to leave, 237 00:20:28.340 --> 00:20:34.340 and because nowhere in England was the institution of slavery statutorily established. 238 00:20:34.340 --> 00:20:41.340 And the law in effect decided that in the absence of any positive statute establishing slavery, 239 00:20:41.340 --> 00:20:47.340 we assume slavery not to exist. We always, when there's a case and we don't quite know what the answer is, 240 00:20:47.340 --> 00:20:51.340 we always side with natural law rather than violations of natural law, 241 00:20:51.340 --> 00:20:54.340 and it was assumed that slavery is a terrible violation of natural law. 242 00:20:54.340 --> 00:20:57.340 So the law never gives it the benefit of the doubt. 243 00:20:57.340 --> 00:21:02.340 It always gives freedom the benefit of the doubt, and so Somerset was freed on those grounds, 244 00:21:02.340 --> 00:21:08.140 and I argued that that line of jurisprudence was then brought across the Atlantic 245 00:21:08.140 --> 00:21:14.740 and formed a number of important cases in American history involving slaves who had been removed to other places 246 00:21:14.740 --> 00:21:22.140 and then sued for their freedom while they were legitimately granted it on the same grounds as in Somerset's case. 247 00:21:22.140 --> 00:21:24.540 Okay, good. 248 00:21:24.540 --> 00:21:28.840 Now if I may share with you a passage from Spooner. 249 00:21:28.840 --> 00:21:34.440 This is from his Unconstitutionality of Slavery, and he says this, 250 00:21:34.440 --> 00:21:38.840 To assert that the Constitution intended to sanction slavery 251 00:21:38.840 --> 00:21:42.840 is in reality equivalent to asserting that the necessary meaning, 252 00:21:42.840 --> 00:21:47.640 the unavoidable import of the words alone of the Constitution, 253 00:21:47.640 --> 00:21:52.440 come fully up to the point of a clear, definite, distinct, express, 254 00:21:52.440 --> 00:21:58.640 explicit, unequivocal, necessary and peremptory sanction of the specific thing. 255 00:21:58.640 --> 00:22:01.840 Human Slavery, Property in Man 256 00:22:01.840 --> 00:22:05.340 If the necessary import of its words alone 257 00:22:05.340 --> 00:22:08.240 do but fall an iota short of this point, 258 00:22:08.240 --> 00:22:11.740 the instrument gives, and legally speaking intended to give, 259 00:22:11.740 --> 00:22:14.740 no legal sanction to slavery. 260 00:22:14.740 --> 00:22:19.040 Now who can in good faith say that the words alone of the Constitution 261 00:22:19.040 --> 00:22:20.940 come up to this point? 262 00:22:20.940 --> 00:22:24.840 No one who knows anything of law and the meaning of words. 263 00:22:24.840 --> 00:22:28.440 Not even the name of the thing alleged to be sanctioned 264 00:22:28.440 --> 00:22:35.440 is given. Here he's referring to the fact that the word slavery or slave cannot be found in the entire document. 265 00:22:35.440 --> 00:22:46.440 The Constitution itself contains no designation, description or necessary admission of the existence of such a thing as slavery, servitude or the right of property in man. 266 00:22:46.440 --> 00:22:56.440 We are obliged to go out of the instrument and grope among the records of oppression, lawlessness and crime, records unmentioned and of course unsanctioned by the Constitution, 267 00:22:56.440 --> 00:23:01.440 to find the thing to which it is said that the words of the Constitution apply. 268 00:23:01.440 --> 00:23:05.440 And when we have found this thing, which the Constitution dare not name, 269 00:23:05.440 --> 00:23:11.440 we find that the Constitution has sanctioned it, if at all, only by enigmatical words, 270 00:23:11.440 --> 00:23:16.440 by unnecessary implication and inference, by innuendo and double entendre, 271 00:23:16.440 --> 00:23:20.440 and under a name that entirely fails of describing the thing. 272 00:23:20.440 --> 00:23:24.440 Everybody must admit that the Constitution itself contains no language 273 00:23:24.440 --> 00:23:30.440 from which alone any court that were either strangers to the prior existence of slavery 274 00:23:30.440 --> 00:23:33.740 or that did not assume its prior existence to be legal 275 00:23:33.740 --> 00:23:37.140 could legally decide that the Constitution sanctioned it. 276 00:23:37.140 --> 00:23:42.740 And this is the true test for determining whether the Constitution does or does not sanction slavery. 277 00:23:42.740 --> 00:23:47.840 That is, whether a court of law strangers to the prior existence of slavery 278 00:23:47.840 --> 00:23:50.640 or not assuming its prior existence to be legal, 279 00:23:50.640 --> 00:23:53.940 looking only at the naked language of the instrument, 280 00:23:53.940 --> 00:23:58.940 could consistently with legal rules judicially determine that it sanctions slavery. 281 00:23:58.940 --> 00:24:05.340 Every lawyer who at all deserves that name knows that the claim for slavery could stand no such test. 282 00:24:05.340 --> 00:24:10.140 The fact is palpable that the Constitution contains no such legal sanction, 283 00:24:10.140 --> 00:24:15.540 that it is only by unnecessary implication and inference, by innuendo and double entendre, 284 00:24:15.540 --> 00:24:20.140 by the aid of exterior evidence, the assumption of the prior legality of slavery, 285 00:24:20.140 --> 00:24:25.580 and the gratuitous imputation of criminal intentions that are not avowed in legal terms 286 00:24:25.580 --> 00:24:30.100 that any sanction of slavery as a legal institution can be extorted from it. 287 00:24:30.100 --> 00:24:36.780 Well, that is, if at some length, that is his rule of interpretation. 288 00:24:36.780 --> 00:24:38.380 And again, if you were to say to him, 289 00:24:38.380 --> 00:24:42.180 but what about the intentions of so-and-so and this and that person 290 00:24:42.180 --> 00:24:45.700 behind closed doors when they drafted it or when they approved it? 291 00:24:45.700 --> 00:24:48.660 Here is one of Spooner's replies. 292 00:24:48.660 --> 00:25:07.660 He says any forty or fifty men, like those who framed the Constitution, may now secretly concoct another, that is honest in its terms, and yet in secret conclave confess to each other the criminal objects they intended to accomplish by it, if its honest character should enable them to secure it for the adoption of the people. 293 00:25:07.660 --> 00:25:14.660 But if the people should adopt such a Constitution, would they thereby adopt any of the criminal and secret purposes of its authors? 294 00:25:14.660 --> 00:25:19.660 Or if the guilty confessions of these conspirators should be revealed 50 years afterwards, 295 00:25:19.660 --> 00:25:23.660 would judicial tribunals look to them as giving the government any authority 296 00:25:23.660 --> 00:25:27.660 for violating the legal meaning of the words of such constitution 297 00:25:27.660 --> 00:25:33.660 and for so construing them as to subserve the criminal and shameless purposes of its originators? 298 00:25:36.660 --> 00:25:41.660 Well, let's take a brief look now since we're running out of time already on item number one. 299 00:25:41.660 --> 00:25:47.260 at the three clauses in the Constitution that are most frequently assumed to refer to slavery. 300 00:25:47.260 --> 00:25:51.560 And by the way, I don't necessarily agree with Spooner. I don't necessarily believe that he made his case. 301 00:25:51.560 --> 00:25:57.060 But he is an important figure and he has an interesting method of constitutional interpretation, 302 00:25:57.060 --> 00:25:59.760 original meaning as opposed to original intent. 303 00:25:59.760 --> 00:26:05.560 His method has been taken up by, for example, Professor Randy Barnett at Boston University Law School, 304 00:26:05.560 --> 00:26:09.960 who wrote a very important study of Spooner and his unconstitutionality of slavery, 305 00:26:09.960 --> 00:26:14.460 which is easily found on the Internet, which I recommend and which I myself have benefited from. 306 00:26:14.460 --> 00:26:18.260 And there's also the fact that other people did in fact adopt his view. 307 00:26:18.260 --> 00:26:24.460 Frederick Douglass, the famous ex-slave turned abolitionist who had been a Garrisonian, 308 00:26:24.460 --> 00:26:31.760 read the Unconstitutionality of Slavery and then converted to Spooner's side and believed his arguments. 309 00:26:31.760 --> 00:26:40.660 Well, the first one in the order that Spooner discusses them is Article 4, Section 2. 310 00:26:40.660 --> 00:26:46.560 No person held to service or labor in one state, under the laws thereof, escaping into another, 311 00:26:46.560 --> 00:26:51.660 shall in consequence of any law or regulation therein be discharged from such service or labor, 312 00:26:51.660 --> 00:26:57.960 but shall be delivered up on claim of the party to whom such service or labor may be due. 313 00:26:57.960 --> 00:27:13.460 Well, this is the sort of fugitive slave clause, because in effect, it's taken to mean that if a slave should run away to some non-slave area, that state to which he has run is obligated to turn him over to his owner. 314 00:27:13.460 --> 00:27:21.460 But now, the exegesis that Spooner proposes that we accept on this clause is as follows. 315 00:27:21.460 --> 00:27:32.460 This is a very long book, his Unconstitutionality of Slavery, and he discusses each of these at great length. 316 00:27:32.460 --> 00:27:38.460 And any brief coverage is going to make it seem as if he had only trivial arguments, or he had very little to say. 317 00:27:38.460 --> 00:27:43.460 He had a great deal to say. I'm just summarizing a couple of points that he makes. 318 00:27:43.460 --> 00:27:47.460 Well, first Spooner again notes that I don't see the word slave in here. 319 00:27:47.460 --> 00:27:53.460 He says, neither service nor labor is necessarily slavery. 320 00:27:53.460 --> 00:28:01.460 And again, his take is that if I can put an innocent interpretation on these words, 321 00:28:01.460 --> 00:28:06.460 then because the law always will lean in the direction of natural law, 322 00:28:06.460 --> 00:28:10.460 that is the meaning that we're going to use in interpreting the clause. 323 00:28:10.460 --> 00:28:13.460 He says, neither service nor labor is necessarily slavery. 324 00:28:13.460 --> 00:28:15.460 And not being necessarily slavery, 325 00:28:15.460 --> 00:28:21.460 The words cannot, in this case, be strained beyond their necessary meaning to make them sanction a wrong. 326 00:28:21.460 --> 00:28:27.460 And then he emphasizes, the stretching, if there be any, must always be towards the right. 327 00:28:27.460 --> 00:28:32.460 The words service or labor do not necessarily, nor in their common acceptation, 328 00:28:32.460 --> 00:28:35.460 so much as suggest the idea of slavery. 329 00:28:35.460 --> 00:28:41.460 That is, they do not suggest the idea of the laborer or servant being the property of the person for whom he labors. 330 00:28:41.460 --> 00:28:55.460 An indented apprentice serves in labor for another. He is held to do so under a contract, and for a consideration that are recognized by the laws as legitimate and consistent with natural right, yet he is not owned as property. 331 00:28:55.460 --> 00:28:59.460 A condemned criminal is held to labor, yet he is not owned as property. 332 00:28:59.460 --> 00:29:03.460 The law allows no such straining of the meaning of words towards the wrong 333 00:29:03.460 --> 00:29:10.460 as that which would convert the words service or labor of men into property in man 334 00:29:10.460 --> 00:29:15.460 and thus make a man who serves or labors for another the property of that other. 335 00:29:15.460 --> 00:29:18.460 And then, again, he elaborates on this at great length. 336 00:29:18.460 --> 00:29:22.460 The second of the clauses that I have up here is Article 1, Section 2, 337 00:29:22.460 --> 00:29:25.460 which is the so-called Three-Fifths Clause, 338 00:29:25.460 --> 00:29:45.460 The Smith's Clause, which says representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. 339 00:29:45.460 --> 00:29:57.460 Well, traditionally, other persons are interpreted as being slaves and this clause was inserted to make compromise between North and South possible for reasons that I explained in an earlier chapter. 340 00:29:57.460 --> 00:30:09.460 But what does Spooner's take? Well, a lot of times this section would just be argued, this is obviously a reference to slavery, I mean, not only, even if you don't want to look at the record of the convention, 341 00:30:09.460 --> 00:30:15.860 The fact is that it refers to free persons on the one hand and all other persons on the other. 342 00:30:15.860 --> 00:30:19.160 Well, what interpretation does that permit, after all, for other persons? 343 00:30:19.160 --> 00:30:22.660 If they're not free, what else are they? They must be slaves. 344 00:30:22.660 --> 00:30:27.560 But here, again, sticking to original meaning, what do the words mean? 345 00:30:27.560 --> 00:30:32.760 Spooner, in fact, entertains, what has English law meant by the word free? 346 00:30:32.760 --> 00:30:36.260 Has it intended this word to mean the opposite of slave? 347 00:30:36.260 --> 00:30:40.160 And he writes, the English law had for centuries used the word free 348 00:30:40.160 --> 00:30:43.160 as describing persons possessing citizenship 349 00:30:43.160 --> 00:30:45.860 or some other franchise or peculiar privilege 350 00:30:45.860 --> 00:30:47.760 as distinguished from aliens 351 00:30:47.760 --> 00:30:51.360 and persons not possessed of such franchise or privilege. 352 00:30:51.360 --> 00:30:53.760 This law and this use of the word free 353 00:30:53.760 --> 00:30:56.460 had been adopted in this country from its first settlement. 354 00:30:56.460 --> 00:31:00.560 So it simply means people enjoying all the privileges of citizenship. 355 00:31:00.560 --> 00:31:05.060 So other persons could simply refer to resident aliens. 356 00:31:05.060 --> 00:31:08.620 Finally, and again, many, many more arguments he advances. 357 00:31:08.620 --> 00:31:11.860 Finally, Article 1, Section 9, Spooner writes, 358 00:31:11.860 --> 00:31:15.220 the migration, sorry, the Constitution, Spooner quotes, 359 00:31:15.220 --> 00:31:18.740 the migration or importation of such persons, 360 00:31:18.740 --> 00:31:22.420 as any of the states now existing shall think proper to admit, 361 00:31:22.420 --> 00:31:27.380 shall not be prohibited by the Congress prior to the year 1808, 362 00:31:27.380 --> 00:31:30.580 but a tax or duty may be imposed on such importation, 363 00:31:30.580 --> 00:31:33.300 not exceeding $10 for each person. 364 00:31:33.300 --> 00:31:38.300 Well, this, again, is typically understood to mean that the slave trade 365 00:31:38.300 --> 00:31:44.800 shall be, cannot be prohibited by the Congress until 1808. 366 00:31:44.800 --> 00:31:47.800 But again, Spooner looks at this and says, 367 00:31:47.800 --> 00:31:52.300 migration or importation of such persons as any of the states now existing shall think proper to admit. 368 00:31:52.300 --> 00:31:57.300 He says, what impartial observer, looking at those words alone, 369 00:31:57.300 --> 00:32:00.300 not looking at historical evidence or what people said, 370 00:32:00.300 --> 00:32:05.200 But looking at those words would say, well, this must refer to the slave trade. 371 00:32:05.200 --> 00:32:10.000 None. None. Nobody would look at those words and say that that refers to the slave trade. 372 00:32:10.000 --> 00:32:13.300 Therefore, we're not going to interpret it as referring to the slave trade. 373 00:32:13.300 --> 00:32:20.200 We will simply say that it refers to the importation, which, by the way, does not necessarily mean importation of property. 374 00:32:20.200 --> 00:32:25.000 That was an argument that said this must refer to slaves because we use the word importation. 375 00:32:25.000 --> 00:32:28.500 and slave labor was thought of as property 376 00:32:28.500 --> 00:32:32.500 and we use the word importation with property so that means it must refer to slavery 377 00:32:32.500 --> 00:32:36.500 but the word importation was referred to the importation of foreigners all the time 378 00:32:36.500 --> 00:32:38.500 not presuming that they were slaves. 379 00:32:38.500 --> 00:32:41.500 It just simply means that the general importation of foreigners 380 00:32:41.500 --> 00:32:47.500 would be uninhibited by Congressional action until 1808. 381 00:32:47.500 --> 00:32:49.500 Now whether or not we accept these arguments, 382 00:32:49.500 --> 00:32:54.500 whether they are textually strained or not as some have alleged, 383 00:32:54.500 --> 00:32:59.500 It is nevertheless an interesting argument, and Spooner is proposing for our consideration 384 00:32:59.500 --> 00:33:04.500 an interesting method of constitutional interpretation that I don't necessarily share, 385 00:33:04.500 --> 00:33:09.500 but nevertheless I still find sort of compelling and interesting, 386 00:33:09.500 --> 00:33:14.500 but yet Spooner is sort of one of these people who's entirely left out, like no one talks about him. 387 00:33:14.500 --> 00:33:19.500 You get to the page in the American History textbook where Spooner should be, and it's blank, 388 00:33:19.500 --> 00:33:26.500 You can almost hear cricket sounds coming out of the book as if it's like nothing, no reference to him at all. 389 00:33:26.500 --> 00:33:31.500 He should be mentioned because he's an interesting guy and a lot of people have formed their whole political philosophy 390 00:33:31.500 --> 00:33:36.500 basically based on Spooner. You do a search for Lysander Spooner on the internet. 391 00:33:36.500 --> 00:33:38.500 You'll find a lot of interesting material. 392 00:33:38.500 --> 00:33:40.500 Well, I'm obviously only going to get to two of the things. 393 00:33:40.500 --> 00:33:45.500 The second one will take only a moment, but I think it's important enough that I do want to tell you about it. 394 00:33:45.500 --> 00:33:47.500 And then we'll have our discussion. 395 00:33:47.500 --> 00:33:53.500 The second of the items that I guess I'll cover today involves fugitive slave laws, as long as we're on the subject of slavery. 396 00:33:53.500 --> 00:34:09.500 Fugitive slave laws are statutes that are meant to give, well, statutory standing to the Constitution's clause, Article 4, Section 2, authorizing and in fact demanding the return of runaway slaves. 397 00:34:09.500 --> 00:34:16.500 Now we're going to depart from Spooner here and assume that Article 4, Section 2 does in fact refer to the return of runaway slaves. 398 00:34:16.500 --> 00:34:44.500 Well, the first fugitive slave law was passed in 1793, but the one that we're going to look at was passed in 1850 and it in effect gave legal teeth to this demand and I want to give an overview of the details of it because I want to show how in fact the principles of 98 were brought to bear against it. 399 00:34:44.500 --> 00:34:49.500 First, we'll talk about fugitive slave laws, then I'll remind you about what the Principles of 98 were, 400 00:34:49.500 --> 00:34:52.500 then we'll put them together and it'll be glorious. 401 00:34:52.500 --> 00:35:02.500 So, at first glance, it does seem as if the return of runaway slaves is something that the Constitution requires, 402 00:35:02.500 --> 00:35:10.500 because clearly Article IV, Section 2, if you're going to take it, using the history behind it as support for your interpretation, 403 00:35:10.500 --> 00:35:16.500 There does seem to be a lot of evidence that that was the intent of those words. 404 00:35:16.500 --> 00:35:23.500 And so, therefore, it would seem that how can a state resist this using Jefferson's principles? 405 00:35:23.500 --> 00:35:30.500 I'll just briefly remind you that Jefferson had this view that if a law is unconstitutional, the states can resist and refuse to enforce it. 406 00:35:30.500 --> 00:35:39.500 Well, those principles don't seem relevant here because people supporting the Fugitive Slave Act can, in fact, point to a constitutional clause to justify themselves. 407 00:35:39.500 --> 00:35:43.500 So how could these principles be relevant? 408 00:35:43.500 --> 00:35:48.500 And the answer is that there were constitutional objections raised against the Fugitive Slave Act 409 00:35:48.500 --> 00:35:52.500 by people who acknowledged that there was this clause, 410 00:35:52.500 --> 00:35:59.500 but who nevertheless said that nevertheless the specifics of this act violate other constitutional clauses, 411 00:35:59.500 --> 00:36:04.500 and therefore we are freed from the responsibility of enforcing them. 412 00:36:04.500 --> 00:36:18.500 So, in fact, the 1850 Fugitive Slave Act took all fugitive slave cases and put them under federal jurisdiction so that states couldn't just evade them, the federal government would get into the act. 413 00:36:18.500 --> 00:36:29.500 Fugitives who were going to be recaptured were denied the right to testify in their own defense and they were denied the right to a jury trial. 414 00:36:29.500 --> 00:36:43.500 Bystanders under the 1850 Act were forced to participate in the capture of a fugitive and stiff penalties were imposed for sheltering or just obstructing the capture of a fugitive. 415 00:36:43.500 --> 00:36:52.500 Now, according to the Fugitive Slave Act of 1850, if you want to reclaim a runaway slave, you pretty much observe the following procedure. 416 00:36:52.500 --> 00:37:01.500 The owner presents himself in a court in his home state where he states in an affidavit that the slave in question has escaped 417 00:37:01.500 --> 00:37:10.500 and that the slave owed labor to him and the owner must provide a physical description of the slave. 418 00:37:10.500 --> 00:37:14.500 Now if the judge believes that the owner has demonstrated his case, 419 00:37:14.500 --> 00:37:23.500 The judge issues at that point an official transcript that the owner could then present in whatever jurisdiction he later could find the fugitive. 420 00:37:23.500 --> 00:37:30.500 So the judge from his home state has in effect already authorized him to go get this person and then all he has to do is present this document. 421 00:37:30.500 --> 00:37:36.500 So that transcript, now we get to the role of the federal government. 422 00:37:36.500 --> 00:37:43.500 Federal commissioners now have the role of not determining that the man in question was in fact a runaway slave. 423 00:37:43.500 --> 00:37:57.500 The Federal Commissioner's job is simply to determine whether the man that the owner finds and presents to the Commissioner was the man described in the judge's transcript. 424 00:37:57.500 --> 00:38:06.500 So that is to say that there's a physical description of the slave that's given and the Federal Commissioner's job now is simply to say, yes, this man fits this physical description. 425 00:38:06.500 --> 00:38:11.500 It is not his job to say, yes, this man was in fact the slave of the owner. 426 00:38:11.500 --> 00:38:13.500 The owner. That's already been determined. 427 00:38:13.500 --> 00:38:19.500 The Federal Commissioner simply identifies this is the man who appears in the claim. 428 00:38:19.500 --> 00:38:24.500 If this is the correct man, according to the physical description, then he's returned to slavery. 429 00:38:24.500 --> 00:38:28.500 There's no trial, he gets no jury trial, there's no appeal. 430 00:38:28.500 --> 00:38:32.500 If the man fits the description, he is remanded to slavery. 431 00:38:32.500 --> 00:38:37.500 Well, there were a great many constitutional objections raised against this act. 432 00:38:37.500 --> 00:38:43.180 For one, there was the objection that the fugitive was denied a jury trial. 433 00:38:43.180 --> 00:38:51.980 Another was a more technical objection, which is that the Federal Commissioners were obviously 434 00:38:51.980 --> 00:38:58.060 exercising judicial power, and yet the conditions of their employment did not comply with those 435 00:38:58.060 --> 00:39:01.780 established for judicial officers by the Constitution. 436 00:39:01.780 --> 00:39:06.080 According to the Constitution, such judicial officers are appointed by the President, they 437 00:39:06.080 --> 00:39:20.080 The Federal Commissioners under the Fugitive Slave Act of 1850 were not paid by a salary, but they were paid by a fee that was paid every time there was a case brought before them. 438 00:39:20.080 --> 00:39:24.080 Now that's a very technical objection. 439 00:39:24.080 --> 00:39:35.080 But even worse, the Federal Fugitive Slave Act Commissioners receive a $10 fee if they return the accused person to slavery, and only $5 if they free him. 440 00:39:35.080 --> 00:39:38.380 Well, there's obviously a vested interest in returning them to slavery. 441 00:39:38.380 --> 00:39:43.780 And in fact, Lysander Spooner himself argued that 442 00:39:43.780 --> 00:39:46.180 even before we get to this differential problem, 443 00:39:46.180 --> 00:39:49.480 it was simply that the fact they were being paid by fees 444 00:39:49.480 --> 00:39:53.480 made it unconstitutional because all judicial officers must be paid by salary. 445 00:39:53.480 --> 00:39:56.980 But other scholars have argued that obviously, I quote one of them, 446 00:39:56.980 --> 00:40:01.880 to give a commissioner a pecuniary interest in the outcome of a hearing over which he presides, 447 00:40:01.880 --> 00:40:06.880 That is to say, offering him $10 to hear it one way and $5 to hear the other 448 00:40:06.880 --> 00:40:10.880 is a violation of the due process clause of the Fifth Amendment. 449 00:40:10.880 --> 00:40:14.880 Well, several northern states enacted what became known as personal liberty laws 450 00:40:14.880 --> 00:40:17.880 designed to frustrate the enforcement of the law. 451 00:40:17.880 --> 00:40:21.880 Only rarely did these actually directly oppose the law. 452 00:40:21.880 --> 00:40:25.880 What they simply did was make the enforcement of the law very difficult. 453 00:40:25.880 --> 00:40:28.880 They penalized and even impeached state officials 454 00:40:28.880 --> 00:40:32.880 They were officials who lent their support to a fugitive slave claimant. 455 00:40:32.880 --> 00:40:38.880 They refused to allow federal officials to use of local jails to house accused fugitives 456 00:40:38.880 --> 00:40:43.880 and ensured that claimants could not simply snatch accused fugitives from the free states. 457 00:40:43.880 --> 00:40:48.880 They had to go before the federal fugitive slave tribunals. 458 00:40:48.880 --> 00:40:52.880 This latter provision made the reclamation of fugitive slaves often prohibitively expensive, 459 00:40:52.880 --> 00:40:57.880 what with the legal fees and other expenses that a potential claimant would incur. 460 00:40:57.880 --> 00:41:05.880 But even these limited forms of resistance often opened up the northern states to charges of dereliction of constitutional duty. 461 00:41:05.880 --> 00:41:08.880 But now and here I get to the point. 462 00:41:08.880 --> 00:41:15.880 I noted in chapter 3 an interesting case that came before the Supreme Court of the state of Wisconsin, 463 00:41:15.880 --> 00:41:22.880 in which Wisconsin was being accused of not faithfully executing the Fugitive Slave Act of 1850. 464 00:41:22.880 --> 00:41:27.880 Now, we recall from last time that in 1798 in the Virginia and Kentucky resolutions, 465 00:41:27.880 --> 00:41:35.880 Jefferson and the Kentucky resolutions had laid out certain principles that then were taken up by the very states that opposed them in 1798. 466 00:41:35.880 --> 00:41:39.880 I showed you at least briefly some evidence that New England states began using them. 467 00:41:39.880 --> 00:41:48.880 It was common currency and basically the principles of 98, named after the resolutions of 1798, were as follows. 468 00:41:48.880 --> 00:41:55.880 Well, it follows that the U.S. government has been given a limited number of powers delegated to it by the states. 469 00:41:55.880 --> 00:41:58.880 The states reserve all powers not delegated to the federal government, 470 00:41:58.880 --> 00:42:02.880 and that if the federal government should go beyond the powers granted to it 471 00:42:02.880 --> 00:42:07.880 and exercise a power that is in fact reserved to the states and has not been delegated to it, 472 00:42:07.880 --> 00:42:13.880 therefore the states can nullify that law and refuse to enforce it within their borders. 473 00:42:13.880 --> 00:42:20.880 Well, how does Wisconsin deal with this accusation that it's not faithfully executing the Fugitive Slave Act? 474 00:42:20.880 --> 00:42:25.880 Well, here we go. This is what the Wisconsin Supreme Court said. 475 00:42:43.880 --> 00:42:51.880 The U.S. Government cannot monopolistically interpret the Constitution. The states also must be able to interpret it. 476 00:42:51.880 --> 00:42:55.880 There is no common judge between the Federal Government and the states. 477 00:42:55.880 --> 00:42:58.880 The Supreme Court does not count. The Supreme Court is part of the Federal Government. 478 00:42:58.880 --> 00:43:01.880 That's not an impartial judge. There is no common judge. 479 00:43:01.880 --> 00:43:04.880 Therefore, each of the parties interprets it for itself. 480 00:43:04.880 --> 00:43:10.880 Resolve that the principle and construction contended for by the party which now rules in the councils of the nation, 481 00:43:10.880 --> 00:43:14.880 that the general government is the exclusive judge of the extent of the powers delegated to it, 482 00:43:14.880 --> 00:43:19.880 stop nothing short of despotism, since the discretion of those who administer the government 483 00:43:19.880 --> 00:43:22.880 and not the Constitution would be the measure of their powers. 484 00:43:22.880 --> 00:43:26.880 That the several states which formed that instrument being sovereign and independent 485 00:43:26.880 --> 00:43:29.880 have the unquestionable right to judge of its infractions 486 00:43:29.880 --> 00:43:32.880 and that a positive defiance of those sovereignties 487 00:43:32.880 --> 00:43:38.880 of all unauthorized acts done or attempted to be done under color of that instrument is the rightful remedy. 488 00:43:38.880 --> 00:43:45.880 Well, these paragraphs I've just cited are taken almost word for word from the Kentucky resolutions of 1798. 489 00:43:45.880 --> 00:43:50.880 The principles of 98 were still alive over six decades later. 490 00:43:50.880 --> 00:43:53.880 This ruling came down in 1859. 491 00:43:53.880 --> 00:43:58.880 And contrary to those who say, well, states' rights is just a big code word to protect slavery. 492 00:43:58.880 --> 00:44:05.880 To the contrary, states' rights in this case, as in many other cases, were used on behalf of the cause of human liberty. 493 00:44:05.880 --> 00:44:12.880 and the cause of human liberty, and it was federal government power that was used on behalf of the cause of human bondage. 494 00:44:12.880 --> 00:44:19.880 Well, given that I'm already somewhat over my time, we will leave as a mystery forever what that third theme was going to be, 495 00:44:19.880 --> 00:44:28.880 and we'll adjourn for our brief, well, adjournment, and I'll run and get copies of the reading that any of you may have missed from last time, so thank you.