The Unconstitutionality of Slavery

by Lysander Spooner

This prohibition upon the states to pass any law impairing the natural obligation of men's contracts, implies that all men have a constitutional right to enter into all contracts that have a natural obligation. It therefore secures the constitutional right of all men to enter into such contracts, and to have them respected by the state governments. Yet this constitutional right of all men to enter into all contracts that have a natural obligation, and to have those contracts recognized by law as valid, is a right plainly inconsistent with the idea that men can constitutionally be made slaves.

This provision therefore absolutely prohibits the passage of slave laws, because laws that make men slaves must necessarily impair the obligation of all their contracts.

Eighth. Persons, whom some of the state governments recognize as slaves, are made eligible, by the constitution of the United States, to the office of president of the United States. The constitutional provision on this subject is this:

"No person, except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of president; neither shall any person be eligible to that office, who shall not have attained the age of thirty-five years, and been fourteen years a resident of the United States."

According to this provision, all "persons",[23] who have resided within the United States fourteen years, have attained the age of thirty-five years, and are either natural born citizens, or were citizens of the United States at the time of the adoption of the constitution, are eligible to the office of president. No other qualifications than these being required by the constitution, no others can be legally demanded. The only question, then, that can arise, is as to the word "citizen." Who are the persons that come within this definition, as here used? The clause itself divides them into two classes, to wit, the "natural born," and those who were "citizens of the United States at the time of the adoption of the constitution." In regard to this latter class, it has before been shown, from the preamble to the constitution, that all who were "people of the United States," (that is, permanent inhabitants,) at the time the constitution was adopted, were made citizens by it. And this clause, describing those eligible to the office of president, implies the same thing. This is evident; for it speaks of those who were "citizens of the United States at the time of the adoption of the constitution." Now there clearly could have been no "citizens of the United States, at the time of the adoption of the constitution," unless they were made so by the constitution itself; for there were no "citizens of the United States" before the adoption of the constitution. The Confederation had no citizens. It was a mere league between the state governments. The separate states belonging to the confederacy had each their own citizens respectively. But the confederation itself, as such, had no citizens. There were, therefore, no "citizens of the United States," (but only citizens of the respective states,) before the adoption of the constitution.—Yet this clause asserts that immediately on the adoption, or "at the time of the adoption of this constitution," there were "citizens of the United States." Those, then, who were "citizens of the United States at the time of the adoption of the constitution," were necessarily those, and only those, who had been made so by the adoption of the constitution; because they could have become citizens at that precise "time" in no other way. If, then, any persons were made citizens by the adoption of the constitution, who were the individuals that were thus made citizens? They were "the people of the United States," of course—as the preamble to the constitution virtually asserts. And if "the people of the United States" were made citizens by the adoption of the constitution, then all "the people of the United States" were necessarily made citizens by it—for no discrimination is made by the constitution between different individuals, "people of the United States"—and there is therefore no means of determining who were made citizens by the adoption of the constitution, unless all "the people of the United States" were so made. Any "person," then, who was one of "the people of the United States" "at the time of the adoption of this constitution," and who is thirty-five years old, and has resided fourteen years within the United States, is eligible to the office of president of the United States. And if every such person be eligible, under the constitution, to the office of president of the United States, the constitution certainly does not recognize them as slaves.

The other class of citizens, mentioned as being eligible to the office of president, consists of the "natural born citizens." Here is an implied assertion that natural birth in the country gives the right of citizenship. And if it gives it to one, it necessarily gives it to all—for no discrimination is made; and if all persons, born in the country, are not entitled to citizenship, the constitution has given us no test by which to determine who of them are entitled to it.

Every person, then, born in the country, and that shall have attained the age of thirty-five years, and been fourteen years a resident within the United States, is eligible to the office of president. And if eligible to that office, the constitution certainly does not recognize him as a slave.

Persons, who are "citizens" of the United States, according to the foregoing definitions, are also eligible to the offices of representative and senator of the United States; and therefore cannot be slaves.

Ninth. The constitution declares that "the trial of all crimes, except in cases of impeachment, shall be by jury."—Also that "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."

It is obvious that slaves, if we had any, might "levy war against the United States," and might also "adhere to their enemies, giving them aid and comfort." It may, however, be doubted whether they could commit the crime of treason—for treason implies a breach of fidelity, trust or allegiance, where fidelity, trust or allegiance is due. And it is very clear that slaves could owe allegiance, trust or fidelity, neither to the United States, nor to the state governments; for allegiance is due to a government only from those who are protected by it. Slaves could owe to our governments nothing but resistance and destruction. If therefore they were to levy war against the United States, they might not perhaps be liable to the technical charge of treason; although there would, in reality, be as much treason in their act, as there would of any other crime—for there would, in truth, be neither legal nor moral crime of any kind in it. Still, the government would be compelled, in order to protect itself against them, to charge them with some crime or other—treason, murder, or something else. And this charge, whatever it might be, would have to be tried by a jury. And what (in criminal cases,) is the "trial by jury?" It is a trial, both of the law and the fact, by the "peers," or equals, of the person tried. Who are the "peers" of a slave? None, evidently, but slaves. If, then, the constitution recognizes any such class of persons, in this country, as slaves, it would follow that for any crime committed by them against the United States, they must be tried, both on the law and the facts, by a jury of slaves. The result of such trials we can readily imagine.