The Unconstitutionality of Slavery

by Lysander Spooner

Those who did take part in the actual ratification of the constitution, acted in behalf of, and, in theory, represented the authority of the whole people. Such is the theory in this country wherever suffrage is confined to a few; and such is the virtual declaration of the constitution itself. The declaration that "we the people of the United States do ordain and establish this constitution," is equivalent to a declaration that those who actually participated in its adoption, acted in behalf of all others, as well as for themselves.

Any private intentions or understandings, on the part of one portion of the people, as to who should be citizens, cannot be admitted to prove that such portion only were intended by the constitution, to be citizens; for the intentions of the other portion would be equally admissible to exclude the exclusives. The mass of the people can claim citizenship under the constitution, on no other ground than as being a part of "the people of the United States;" and such claim necessarily admits that all other "people of the United States" are equally citizens.

That the designation, "We the people of the United States," included the whole people that properly belonged to the United States, is also proved by the fact that no exception is made in any other part of the instrument.

If the constitution had intended that any portion of "the people of the United States" should be excepted from its benefits, disfranchised, outlawed, enslaved, it would of course have designated these exceptions with such particularity as to make it sure that none but the true persons intended would be liable to be subjected to such wrongs. Yet, instead of such particular designation of the exceptions, we find no designation whatever of the kind. But on the contrary, we do find, in the preamble itself, a sweeping declaration to the effect that there are no such exceptions; that the whole people of the United States are citizens, and entitled to liberty, protection, and the dispensation of justice under the constitution.

If it be admitted that the constitution designated its own citizens, then there is no escape from the conclusion that it designated the whole people of the United States as such. On the other hand, if it be denied that the constitution designated its own citizens, one of these two conclusions must follow, viz., 1st, that it has no citizens; or, 2d, that it has left an unrestrained power in the state governments to determine who may, and who may not, be citizens of the United States government. If the first of these conclusions be adopted, viz., that the constitution has no citizens, then it follows that there is really no United States government, except on paper—for there would be as much reason in talking of an army without men, as of a government without citizens. If the second conclusion be adopted, viz., that the state governments have the right of determining who may, and who may not be citizens of the United States government, then it follows that the state governments may at pleasure destroy the government of the United States, by enacting that none of their respective inhabitants shall be citizens of the United States.

This latter is really the doctrine of some of the slave states—the "state-rights" doctrine, so called. That doctrine holds that the general government is merely a confederacy or league of the several states, as states; not a government established by the people, as people. This "state-rights" doctrine has been declared unconstitutional by reiterated opinions of the supreme court of the United States;[22] and, what is of more consequence, it is denied also by the preamble to the constitution itself, which declares that it is "the people," (and not the state governments,) that ordain and establish it. It is true also that the constitution was ratified by conventions of the people, and not by the legislatures of the states. Yet because the constitution was ratified by conventions of the states separately, (as it naturally would be for convenience, and as it necessarily must have been for the reason that none but the people of the respective states could recall any portion of the authority they had, delegated to their state governments, so as to grant it to the United States government,)—yet because it was thus ratified, I say, some of the slave states have claimed that the general government was a league of states, instead of a government formed by "the people." The true reason why the slave states have held this theory, probably is, because it would give, or appear to give, to the states the right of determining who should, and who should not, be citizens of the United States. They probably saw that if it were admitted that the constitution of the United States had designated its own citizens, it had undeniably designated the whole people of the then United States as such; and that, as a state could not enslave a citizen of the United States, (on account of the supremacy of the constitution of the United States,) it would follow that there could be no constitutional slavery in the United States.

Again. If the constitution was established by authority of all "the people of the United States," they were all legally parties to it, and citizens under it. And if they were parties to it, and citizens under it, it follows that neither they, nor their posterity, nor any nor either of them, can ever be legally enslaved within the territory of the United States; for the constitution declares its object to be, among other things, "to secure the blessings of liberty to ourselves, and our posterity." This purpose of the national constitution is a law paramount to all state constitutions; for it is declared that "this constitution, and the laws of the United States that shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."

No one, I suppose, doubts that if the state governments were to abolish slavery, the slaves would then, without further legislation, become citizens of the United States. Yet, in reality, if they would become citizens then, they are equally citizens now—else it would follow that the state governments had an arbitrary power of making citizens of the United States; or—what is equally absurd—it would follow that disabilities, arbitrarily imposed by the state governments, upon native inhabitants of the country, were, of themselves, sufficient to deprive such inhabitants of their citizenship, which would otherwise have been conferred upon them by the constitution of the United States. To suppose that the state governments are thus able, arbitrarily, to keep in abeyance, or arbitrarily to withhold from any of the inhabitants of the country, any of the benefits or rights which the national constitution intended to confer upon them, would be to suppose that the state constitutions were paramount to the national one. The conclusion, therefore, is inevitable, that the state governments have no power to withhold the rights of citizenship from any who are otherwise competent to become citizens. And as all the native born inhabitants of the country are at least competent to become citizens of the United States, (if they are not already such,) the state governments have no power, by slave laws or any other, to withhold the rights of citizenship from them.

But however clear it may be, that the constitution, in reality, made citizens of all "the people of the United States," yet it is not necessary to maintain that point, in order to prove that the constitution gave no guaranty or sanction to slavery—for if it had not already given citizenship to all, it nevertheless gave to the government of the United States unlimited power of offering citizenship to all. The power given to the government of passing naturalization laws, is entirely unrestricted, except that the laws must be uniform throughout the country. And the government have undoubted power to offer naturalization and citizenship to every person in the country, whether foreigner or native, who is not already a citizen. To suppose that we have in the country three millions of native born inhabitants, not citizens, and whom the national government has no power to make citizens, when its power of naturalization is entirely unrestricted, is a palpable contradiction.

But further. The constitution of the United States must be made consistent with itself throughout; and if any of its parts are irreconcilable with each other, those parts that are inconsistent with liberty, justice and right, must be thrown out for inconsistency. Besides the provisions already mentioned, there are numerous others, in the constitution of the United States, that are entirely and irreconcilably inconsistent with the idea that there either was, or could be, any constitutional slavery in this country.