The Unconstitutionality of Slavery

by Lysander Spooner

Fifth. "The congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;" also "to raise and support armies;" and "to provide and maintain a navy."

Have not congress authority, under these powers, to enlist soldiers and sailors, by contract with themselves, and to pay them their wages, grant them pensions, and secure their wages and pensions to their own use, without asking the permission either of the state governments, or of any individuals whom the state governments may see fit to recognize as the owners of such soldiers and sailors? Certainly they have, in defiance of all state laws and constitutions whatsoever; and they have already asserted that principle by enacting that pensions, paid by the United States to their soldiers, shall not be liable to be taken for debt, under the laws of the states. Have they not authority also to grant letters of marque and reprisal, and to secure the prizes, to a ship's crew of blacks, as well as of whites? To those whom the State governments call slaves, as well as to those whom the state governments call free?—Have not congress authority to make contracts, for the defence of the nation, with any and all the inhabitants of the nation, who may be willing to perform the service? Or are they obliged first to ask and obtain the consent of those private individuals who may pretend to own the inhabitants of this nation? Undoubtedly congress have the power to contract with whom they please, and to secure wages and pensions to such individuals, in contempt of all state authority. Yet this power is inconsistent with the idea that the constitution recognizes or sanctions the legality of slavery.

Sixth. "The congress shall have power to provide for the organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia, according to the discipline prescribed by congress." Also "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions."

Have not congress, under these powers, as undoubted authority to enroll in the militia, and "arm" those whom the states call slaves, and authorize them always to keep their arms by them, even when not on duty, (that they may at all times be ready to be "called forth" "to execute the laws of the Union, suppress insurrections, and repel invasions,") as they have thus to enroll and arm those whom the states call free? Can the state governments determine who may, and who may not compose the militia of the "United States?"

Look, too, at this power, in connection with the second amendment to the constitution; which is in these words:

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

These provisions obviously recognize the natural right of all men "to keep and bear arms" for their personal defence; and prohibit both congress and the state governments from infringing the right of "the people"—that is, of any of the people—to do so; and more especially of any whom congress have power to include in their militia. This right of a man "to keep and bear arms," is a right palpably inconsistent with the idea of his being a slave. Yet the right is secured as effectually to those whom the states presume to call slaves, as to any whom the states condescend to acknowledge free.

Under this provision any man has a right either to give or sell arms to those persons whom the states call slaves; and there is no constitutional power, in either the national or state governments, that can punish him for so doing; or that can take those arms from the slaves; or that can make it criminal for the slaves to use them, if, from the inefficiency of the laws, it should become necessary for them to do so, in defence of their own lives or liberties; for this constitutional right to keep arms implies the constitutional right to use them, if need be, for the defence of one's liberty or life.

Seventh. The constitution of the United States declares that "no state shall pass any law impairing the obligation of contracts."

"The obligation of contracts," here spoken of, is, of necessity, the natural obligation; for that is the only real or true obligation that any contracts can have. It is also the only obligation, which courts recognize in any case, except where legislatures arbitrarily interfere to impair it. But the prohibition of the constitution is upon the states' passing any law whatever that shall impair the natural obligation of men's contracts. Yet, if slave laws were constitutional, they would effectually impair the obligation of all contracts entered into by those who are made slaves; for the slave laws must necessarily hold that all a slave's contracts are void.