The Unconstitutionality of Slavery

by Lysander Spooner

7. The words "service or labor" cannot be made to include slavery, unless by reversing the legal principle, that the greater includes the less, and holding that the less includes the greater; that the innocent includes the criminal; that a sanction of what is right, includes a sanction of what is wrong.

Another clause relied on as a recognition of the constitutionality of slavery, is the following, (Art. 1. Sec. 2.):

"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."

The argument claimed from this clause, in support of slavery, rests entirely upon the word "free," and the words "all other persons." Or rather it rests entirely upon the meaning of the word "free," for the application of the words "all other persons" depends upon the meaning given to the word "free." The slave argument assumes, gratuitously, that the word "free" is used as the correlative of slavery and thence it infers that the words, "all other persons," mean slaves.

It is obvious that the word "free" affords no argument for slavery, unless a meaning correlative with slavery be arbitrarily given to it, for the very purpose of making the constitution sanction or recognize slavery. Now it is very clear that no such meaning can be given to the word, for such a purpose. The ordinary meaning of a word cannot be thus arbitrarily changed, for the sake of sanctioning a wrong. A choice of meaning would be perfectly allowable, and even obligatory, if made for the purpose of avoiding any such sanction; but it is entirely inadmissable for the purpose of giving it. The legal rules of interpretation, heretofore laid down, imperatively require this preference of the right, over the wrong, in all cases where a word is susceptible of different meanings.

The English law had for centuries used the word "free" as describing persons possessing citizenship, or some other franchise or peculiar privilege—as distinguished from aliens, and persons not possessed of such franchise or privilege. This law, and this use of the word "free," as has already been shown, had been adopted in this country from its first settlement. The colonial charters all, (probably without an exception,) recognized it. The colonial legislation generally, if not universally, recognized it. The state constitutions, in existence at the time the constitution of the United States was formed and adopted, used the word in this sense, and no other. The Articles of Confederation—the then existing national compact of union—used the word in this sense, and no other. The sense is an appropriate one in itself; the most appropriate to, and consistent with the whole character of the constitution, of any of which the word is susceptible. In fact, it is the only one that is either appropriate to, or consistent with, the other parts of the instrument. Why, then, is it not the legal meaning? Manifestly it is the legal meaning. No reason whatever can be given against it, except that, if such be its meaning, the constitution will not sanction slavery! A very good reason—a perfectly unanswerable reason, in fact—in favor of this meaning; but a very futile one against it.

It is evident that the word "free" is not used as the correlative of slavery, because "Indians not taxed" are "excluded" from its application—yet they are not therefore slaves.

Again. The word "free" cannot be presumed to be used as the correlative of slavery—because slavery then had no legal existence. The word must obviously be presumed to be used as the correlative of something that did legally exist, rather than of something that did not legally exist. If it were used as the correlative of something that did not legally exist, the words "all other persons" would have no legal application. Until, then, it be shown that slavery had a legal existence, authorized either by the United States constitution, or by the then existing state constitutions—a thing that cannot be shown—the word "free" certainly cannot be claimed to have been used as its correlative.

But even if slavery had been authorized by the state constitutions, the word "free," in the United States constitution, could not have been claimed to have been used as its correlative, unless it had appeared that the United States constitution had itself provided or suggested no correlative of the word "free;" for it would obviously be absurd and inadmissible to go out of an instrument to find the intended correlative of one of its own words, when it had itself suggested one. This the constitution of the United States has done, in the persons of aliens. The power of naturalization is, by the constitution, taken from the states, and given exclusively to the United States. The constitution of the United States, therefore, necessarily supposes the existence of aliens—and thus furnishes the correlative sought for. It furnishes a class both for the word "free," and the words "all other persons" to apply to. And yet the slave argument contends that we must overlook these distinctions, necessarily growing out of the laws of the United States, and go out of the constitution of the United States to find persons whom it describes as the "free," and "all other persons." And what makes the argument the more absurd is, that by going out of the instrument to the then existing state constitutions—the only instruments to which we can go—we can find there no other persons for the words to apply to—no other classes answering to the description of the "free persons" and "all other persons,"—than the very classes suggested by the United States constitution itself, to wit, citizens and aliens; (for it has previously been shown that the then existing state constitutions recognized no such persons as slaves.)

If we are obliged, (as the slave argument claims we are,) to go out of the constitution of the United States to find the class whom it describes as "all other persons" than "the free," we shall, for aught I see, be equally obliged to go out of it to find those whom it describes as the "free"—for "the free," and "all other persons" than "the free," must be presumed to be found described somewhere in the same instrument. If, then, we are obliged to go out of the constitution to find the persons described in it as "the free" and "all other persons," we are obliged to go out of it to ascertain who are the persons on whom it declares that the representation of the government shall be based, and on whom, of course, the government is founded. And thus we should have the absurdity of a constitution that purports to authorize a government, yet leaves us to go in search of the people who are to be represented in it. Besides, if we are obliged to go out of the constitution, to find the persons on whom the government rests, and those persons are arbitrarily prescribed by some other instrument, independent of the constitution, this contradiction would follow, viz., that the United States government would be a subordinate government—a mere appendage to something else—a tail to some other kite—or rather a tail to a large number of kites at once—instead of being, as it declares itself to be, the supreme government—its constitution and laws being the supreme law of the land.