That was Lysander Spooner’s strategy to stop unconstitutional acts that was very much in line with James Madison and other prominent founders.
Spooner was a prominent 19th-century slavery abolitionist. He is well-known in libertarian and anarchist circles for saying the Constitution either authorized the government we got or it was powerless to stop it. “In either case, it is unfit to exist.”
But many don’t know that Spooner also wrote quite a bit about the legal meaning of the Constitution – and strategy to defend and advance liberty.
In response to the Fugitive Slave Act of 1850, Spooner penned a pamphlet titled “A Defence for Fugitive Slaves.”
The Fugitive Slave Act of 1850 ranks as one of the most insidious laws in American history. It denied a black person accused of escaping slavery any semblance of due process. A white man could basically drag a black person south into slavery merely on the power of his word. This even put people born free in the North under the constant threat of being snatched up and sent to slavery.
The first part of Spooner’s pamphlet builds a strong seven-point case against the constitutionality of the Fugitive Slave Act.
1. They authorize the delivery of the slaves without a trial by jury.
2. The Commissioners appointed by the Act of 1850, are not constitutional tribunals for the adjudication of such cases.
3. The State magistrates, authorized by the Act of 1793, to deliver up fugitives from service or labor, are not constitutional tribunals for that purpose.
4. The Act of 1850 is unconstitutional, in that it authorizes cases to be decided wholly on ex parte testimony.
5. The provisions of the Act of 1850, requiring the exclusion of certain evidence, are unconstitutional.
6. The requirement of the Act of 1850, that the cases be adjudicated “in a summary manner,” is unconstitutional.
7. The prohibition, in the Act of 1850, of the issue of the writ of Habeas Corpus for the relief of those arrested under the act, is unconstitutional.
Spooner goes on to reason that if the fugitive slave acts are unconstitutional, it follows that they are really no law at all. Furthermore, “an officer of the government is an officer of the law only when he is proceeding according to law.” In other words, the federal government had no legitimate authority to enforce the unconstitutional fugitive slave act.
“If it have been shown that the acts of 1793 and of 1850, are unconstitutional, it follows that they can confer no authority upon the judges and marshals appointed to execute them; and those officers are consequently, in law, mere ruffians and kidnappers, who may be lawfully resisted, by any body and every body, like any other ruffians and kidnappers, who assail a person without any legal right.”
He goes on to write, “an unconstitutional statute is no law, in the view of the constitution. It is void, and confers no authority on any one; and whoever attempts to execute it, does so at his peril.”
Many in the founding generation came to a similar conclusion about any unconstitutional act. For instance, in Federalist #78. Alexander Hamilton wrote:
“There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”
James Iredell of North Carolina put it another way, saying a law “not warranted by the Constitution is a bare-faced usurpation.”
Thomas Jefferson wrote, “Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
But so what? Simply asserting that a law is unconstitutional and thus void doesn’t change anything in practice. The government is all too happy to continue enforcing unconstitutional acts. Spooner has already alluded to the only thing that can put teeth into constitutional assertions — resistance.
Spooner makes this point without equivocation.
“The right of the people, therefore, to resist an unconstitutional law, is absolute and unqualified, from the moment the law is enacted.”
Some will argue that resisting an unconstitutional act goes too far. They say we need to “work within the system” and get the law repealed. But Spooner says this is nonsense. This strategy tacitly acknowledges the legitimacy of the law until it is repealed.
“To say that an unconstitutional law must be obeyed until it is repealed, is saying that an unconstitutional law is just as obligatory as a constitutional one,—for the latter is binding only until it is repealed. There would therefore be no difference at all between a constitutional and an unconstitutional law, in respect to their binding force; and that would be equivalent to abolishing the constitution, and giving to the government unlimited power.”
Spooner calls the right to resist an unconstitutional act “a constitutional right.”
“The exercise of the right is neither rebellion against the constitution, nor revolution—it is a maintenance of the constitution itself, by keeping the government within the constitution. It is also a defence of the natural rights of the people, against robbers and trespassers, who attempt to set up their own personal authority and power, in opposition to those of the constitution and people, which they were appointed to administer.”
But shouldn’t we wait until a federal court strikes down a law as unconstitutional before resisting its enforcement? Spooner didn’t think so. He said, “there is not a syllable in the constitution, that makes a decision of the judiciary—of its own force, and without regard to its correctness—binding upon any body, either upon the executive, or the people.”
Simply put, we can’t count on judges to protect our rights or to protect the people from federal power.”
“On the contrary, they have uniformly—probably without a solitary exception—proved themselves, in all questions of this nature, to be nothing but the willing instruments of usurpation and oppression. They do not accept their offices with any other intention than that of holding all laws constitutional, which they suppose the legislature will pass—for nobody accepts an office, unless with the intention of being obedient to those, to whom they are amenable.”
Spooner goes on to write, “A judicial decision, as such, has therefore no intrinsic authority at all; its constitutional authority rests wholly upon its being in accordance with the constitution.”
So, how do we resist unconstitutional acts?
Spooner called for jury nullification, writing, “It follows that, under the trial by jury, no man can be punished for resisting the execution of any law, unless the law be so clearly constitutional, as that a jury, taken promiscuously from the mass of the people, will all agree that it is constitutional.”
James Madison provided his own blueprint for resistance, suggesting “a refusal to cooperate with officers of the union.”
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
Resistance can come in many forms. The bottom line is we must resist federal overreach. The Constitution will not – and can not – enforce itself.