The Unconstitutionality of Slavery

by Lysander Spooner

Again. It certainly cannot be admitted that we must go out of the United States constitution to find the classes whom it describes as "the free," and "all other persons" than "the free," until it be shown that the constitution has told us where to go to find them. In all other cases, (without an exception, I think,) where the constitution makes any of its provisions dependent upon the state constitutions, or state legislatures, it has particularly described them as depending upon them. But it gives no intimation that it has left it with the state constitutions, or the state legislatures, to prescribe whom it means by the terms "free persons" and "all other persons," on whom it requires its own representation to be based. We have, therefore, no more authority from the constitution of the United States, for going to the state constitutions, to find the classes described in the former as the "free persons" and "all other persons," than we have for going to Turkey or Japan. We are compelled, therefore, to find them in the constitution of the United States itself, if any answering to the description can possibly be found there.

Again. If we were permitted to go to the state constitutions, or to the state statute books, to find who were the persons intended by the constitution of the United States; and if, as the slave argument assumes, it was left to the states respectively to prescribe who should, and who should not, be "free" within the meaning of the constitution of the United States, it would follow that the terms "free" and "all other persons," might be applied in as many different ways, and to as many different classes of persons, as there were different states in the union. Not only so, but the application might also be varied at pleasure in the same state. One inevitable consequence of this state of things would be, that there could be neither a permanent, nor a uniform basis of representation throughout the country. Another possible, and even probable consequence would be, such inextricable confusion, as to the persons described by the same terms in the different states, that Congress could not apportion the national representation at all, in the manner required by the constitution. The questions of law, arising out of the different uses of the word "free," by the different states, might be made so endless and inexplicable, that the state governments might entirely defeat all the power of the general government to make an apportionment.

If the slave construction be put upon this clause, still another difficulty, in the way of making an apportionment, would follow, viz., that congress could have no legal knowledge of the persons composing each of the two different classes, on which its representation must be based; for there is no legal record—known to the laws of the United States, or even to the laws of the states—of those who are slaves, or those who are not. The information obtained by the census takers, (who have no legal records to go to,) must, in the nature of things, be of the most loose and uncertain character, on such points as these. Any accurate or legal knowledge on the subject is, therefore, obviously impossible. But if the other construction be adopted, this difficulty is avoided—for congress then have the control of the whole matter, and may adopt such means as may be necessary for ascertaining accurately the persons who belong to each of these different classes. And by their naturalization laws they actually do provide for a legal record of all who are made "free" by naturalization.

And this consideration of certainty, as to the individuals and numbers belonging to each of these two classes, "free" and "all other persons," acquires an increased and irresistible force, when it is considered that these different classes of persons constitute also different bases for taxation, as well as representation. The requirement of the constitution is, that "representatives and direct taxes shall be apportioned," &c., according to the number of "free persons" and "all other persons." In reference to so important a subject as taxation, accurate and legal knowledge of the persons and numbers belonging to the different classes, becomes indispensable. Yet under the slave construction this legal knowledge becomes impossible. Under the other construction it is as perfectly and entirely within the power of congress, as, in the nature of things, such a subject can be—for naturalization is a legal process; and legal records, prescribed by congress, may be, and actually are, preserved of all the persons naturalized or made "free" by their laws.

If we adopt that meaning of the word "free," which is consistent with freedom—that meaning which is consistent with natural right—the meaning given to it by the Articles of Confederation, by the then existing state constitutions, by the colonial charters, and by the English law ever since our ancestors enjoyed the name of freemen, all these difficulties, inconsistencies, contradictions and absurdities, that must otherwise arise, vanish. The word "free" then describes the native and naturalized citizens of the United States, and the words "all other persons" describe resident aliens, "Indians not taxed," and possibly some others. The representation is then placed upon the best, most just, and most rational basis that the words used can be made to describe. The representation also becomes equal and uniform throughout the country. The principle of distinction between the two bases, becomes also a stable, rational and intelligible one—one too necessarily growing out of the exercise of one of the powers granted to congress;—one, too, whose operation could have been foreseen and judged of by the people who adopted the constitution—instead of one fluctuating with the ever changing and arbitrary legislation of the various states, whose mode and motives of action could not have been anticipated. Adopt this definition of the word "free," and the same legislature, (that is, the national one,) that is required by the constitution to apportion the representation according to certain principles, becomes invested—as it evidently ought to be, and as it necessarily must be, to be efficient—with the power of determining, by their own (naturalization) laws, who are the persons composing the different bases on which its apportionment is to be made; instead of being, as they otherwise would be, obliged to seek for these persons through all the statute books of all the different states of the union, and through all the evidences of private property, under which one of these classes might be held. Adopt this definition of the word "free," and the United States government becomes, so far at least as its popular representation—which is its most important feature—is concerned, an independent government, subsisting by its own vigor, and pervaded throughout by one uniform principle. Reject this definition, and the popular national representation, loses at once its nationality, and becomes a mere dependency on the will of local corporations—a mere shuttlecock to be driven hither and thither by the arbitrary and conflicting legislation of an indefinite number of separate states. Adopt this meaning of the word "free," and the national government becomes capable of knowing its own bases of representation and power, and its own subjects of taxation. Reject this definition, and the government knows not whom it represents, or on whom to levy taxes for its support. Adopt this meaning of the word "free," and some three millions of native born, but now crushed human beings, become, with their posterity, men and citizens. Adopt this meaning—this legal meaning—this only meaning that can, in this clause, be legally given to the word "free," and our constitution becomes, instead of a nefarious compact of conspirators against the rights of man, a consistent and impartial contract of government between all "the people of the United States," for securing "to themselves and their posterity the blessings of liberty" and "justice."

Again. We cannot unnecessarily place upon the constitution a meaning directly destructive of the government it was designed to establish. By giving to the word "free" the meaning universally given to it by our political papers of a similar character up to the time the constitution was adopted, we give to the government three millions of citizens, ready to fight and be taxed for its support. By giving to the word "free" a meaning correlative with slavery, we locate in our midst three millions of enemies; thus making a difference of six millions, (one third of our whole number,) in the physical strength of the nation. Certainly a meaning so suicidal towards the government, cannot be given to any part of the constitution, except the language be irresistibly explicit; much less can it be done, (as in this case it would be,) wantonly, unnecessarily, gratuitously, wickedly, and in violation of all previous usage.

Again. If we look into the constitution itself for the meaning of the word "free," we find it to result from the distinction there recognized between citizens and aliens. If we look into the contemporary state constitutions, we still find the word "free" to express the political relation of the individual to the state, and not any property relation of one individual to another. If we look into the law of nature for the meaning of the word "free," we find that by that law all mankind are free. Whether, therefore, we look to the constitution itself, to the contemporary state constitutions, or to the law of nature, for the meaning of this word "free," the only meaning we shall find is one consistent with the personal liberty of all. On the other hand, if we are resolved to give the word a meaning correlative with slavery, we must go to the lawless code of the kidnapper to find such a meaning. Does it need any argument to prove to which of these different codes our judicial tribunals are bound to go, to find the meaning of the words used in a constitution, that is established professedly to secure liberty and justice?

Once more. It is altogether a false, absurd, violent, unnatural and preposterous proceeding, in construing a political paper, which purports to establish men's relations to the state, and especially in construing the clause in it which fixes the basis of representation and taxation, to give to the words, which describe the persons to be represented and taxed, and which appropriately indicate those relations of men to the state which make them proper subjects of taxation and representation—to give to such words a meaning, which, instead of describing men's relations to the state, would describe merely a personal or property relation of one individual to another, which the state has nowhere else recognized, and which, if admitted to exist, would absolve the persons described from all allegiance to the state, would deny them all right to be represented, and discharge them from all liability to be taxed.

But it is unnecessary to follow out this slave argument into all its ramifications. It sets out with nothing but assumptions, that are gratuitous, absurd, improbable, irrelevant, contrary to all previous usage, contrary to natural right, and therefore inadmissible. It conducts to nothing but contradictions, absurdities, impossibilities, indiscriminate slavery, anarchy, and the destruction of the very government which the constitution was designed to establish.

The other clause relied on as a recognition and sanction, both of slavery and the slave trade, is the following: