Lysander Spooner argued that there is “no treason” against the Constitution because it has no authority over Americans. Another nail in the Constitution’s coffin, and a powerful rejoinder to the neofascism of the hour, should be neo-Spoonerism: there is no treason against the federal government, because the federal government does not abide by the document which it claims as its foundational authority to govern.
https://mises.org/wire/what-spooner-can-teach-us-our-age-neofascism
Jason Morgan
Mises Wire readers are probably familiar with nineteenth-century American proto-libertarian Lysander Spooner (1808–87). Spooner’s radical challenges to statism are best summed up by the title of Murray Rothbard’s edited collection of Spooner’s greatest writings: Let’s Abolish Government. Spooner was a great American, an anarchist committed to the free administration of justice, anticollectivism, dismantling slavery, and preventing the federal government from setting up a new kind of nationwide statist enslavement on the ruins of the wartorn South.
Lysander Spooner’s most prominent work is probably his post–Civil War tract No Treason. Spooner wrote No Treason to argue that secession from the federal union is no crime.
Of this work, section 6, “The Constitution of No Authority,” stands out. In “The Constitution of No Authority,” Spooner saps the battlements of the federal edifice, the Constitution itself. The Constitution, he writes, is at best a contract, and even then at best a contract among the very few “who had already come to years of discretion” living at the time who were consulted on the document. The Constitution begins with “We, the People,” but Spooner pulled the curtain back on that rhetoric to argue that “the People” could mean, at most, the people alive and of majority age who had some say in how and when the document was signed and ratified. That is all.
“The Constitution,” Spooner writes, “so far as it was their contract [referring to the handful of people with a hand in making the document], died with them.” The entire sentence is emphasized in the original. Lest anyone miss the meaning, Spooner begins the section with his conclusion: “The Constitution has no inherent authority or obligation.”
In other words, no one living in Spooner’s time, approaching a century since the Constitution was hammered out and inked at the bottom, can be said to be engaged in unconstitutional acts. Because there is no Constitution, Spooner says. Whatever it was, it ended when the people who signed it passed from the scene. The framers “had no natural power or right to make [the Constitution] obligatory upon their children,” he writes. Americans cannot and should not be bound by contracts which some people made among themselves long ago.
In short, because there is no Constitution, there is “no treason.”
(As for the arguments that voting and paying taxes count as tacit agreements to participate in the Constitution’s imagined governmental regime, Spooner demurs. People could vote without a Constitution as well as with one, he says, and paying taxes is akin to being the victim of highway robbery, to which no person would consent if he had the choice. So, neither voting nor paying taxes implies a personal ratification of the parchment from 1789.)
Spooner’s pioneering arguments against organized theft known as centralized government are especially powerful in our time. I would love to have read Spooner’s assessment of the 2020 “election,” for example, and his views on the “stimulus,” inflation, shortages, counterfeiting, polymorphic infrastructure, and imperialist boondoggles which the 1789 Constitution has placidly overseen. I think Spooner might have said, in a Massachusetts deadpan, “There is no treason in checking out of that mess. There is no reason not to.”
But if Lysander Spooner were alive today, and were reprising “The Constitution of No Authority,” he might take much farther some of the elements found in his original work. He might push his arguments so far as to give rise to a new kind of Spoonerism, a neo-Spoonerism. I think this neo-Spoonerism would be the natural complement to the original. For the obverse of the Constitution’s having no authority is the plain fact that no one who purports to uphold the Constitution actually does so. Not only is the document itself void—not a single soul among us having signed it, as Spooner argues at great length. But even if “We the People” had signed such a contract, it would still be void, because the counterparty, namely the government, has violated, I think it is no stretch to say, every single promise and clause. The Constitution is invalid on its face, and invalidated by egregious and habitual breach.
Spooner points this out in a narrowcast way in “The Constitution of No Authority.” He writes:
It is no exaggeration, but a literal truth, to say that, by the Constitution—not as I interpret it, but as it is interpreted by those who pretend to administer it—the properties, liberties, and lives of the entire people of the United States are surrendered unreservedly into the hands of men who, it is provided by the Constitution itself, shall never be ‘questioned’ as to any disposal they make of them. (pp. 22-23; emphasis in original)
The Constitution creates an absurdity, Spooner argues, in which the document claiming to safeguard our liberties makes us the “property” (Spooner’s term) of the government. On the Constitution’s own terms, the Constitution does the opposite of what it purports. This, too, Spooner says, is a mark against anyone’s having to abide by it.
But let us take a much broader view of the Constitution and its applications. Much has changed since Spooner’s day. Do those who claim constitutional authority abide by the Constitution? Do they legitimately work within the confines of the document which we are to believe gives them the right to govern “the People”? If they do not—that is, if the government itself does not follow the Constitution—then there is a second powerful argument extending from Spooner’s original insights and reinforcing them.
This is neo-Spoonerism, as I call it, or the argument that the Constitution has no authority in the broad sense as well as the narrow. Not only does the Constitution fail on the technical charges Spooner brought against it, such as that no one living today signed it and that the government which the Constitution sets up is the opposite of what it claims. But also, and perhaps even more damning, no one in government today even abides by this specious document in the first place. The Constitution is undone by itself, by reason, and by circumstances. The third, circumstantial indictment of the Constitution is what I refer to as neo-Spoonerism, an organic outgrowth of the Spoonerist philosophy.
To test this hypothetical neo-Spoonerism, choose any part of the Constitution at random and see whether it is being faithfully observed. For example, from Article I, Section VIII: “The Congress shall have the Power to … raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” This is evidently breached.
Or, from the Bill of Rights, Sixth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” On this, for a start, let us call the National Security Agency, the Federal Bureau of Investigation, and every Foreign Intelligence Surveillance Act judge on the list to the witness stand. Just to get warmed up.
Or from the Bill of Rights, Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Civil asset forfeiture seems almost a parody designed to flout this Amendment, and the spirit of the Constitution as a whole.
This list could go on for quite some time. I did not even touch the Ninth or Tenth Amendments, by a faithful reading of which the majority of the federal Colossus would have to be torn down. The federal government is tracking and trammeling our speech, limiting our freedom of assembly, endangering us with reckless involvement in foreign wars, keeping political prisoners, staging coups against sitting presidents, forcing us to inject experimental serums, and shadowing journalists. Does it make “the People” any more than mocked fools to abide by the Constitution when the “people’s government” does no such thing?
Lysander Spooner argued that there is “no treason” against the Constitution because it has no authority over Americans. Another nail in the Constitution’s coffin, and a powerful rejoinder to the neofascism of the hour, should be neo-Spoonerism: there is no treason against the federal government, because the federal government does not abide by the document which it claims as its foundational authority to govern. Author:
Contact Jason Morgan
Jason Morgan is associate professor at Reitaku University in Kashiwa, Japan, and was a 2016 Mises Institute Fellow. For a list of his books and publications, see his personal site.
Be seeing you
by Tyler DurdenFriday, Dec 17, 2021 – 11:55 PM
But before we dive into the law itself, let’s look at the question being proposed to the Supreme Court in this writ of certiorari. The question presented is: “Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with a type of “Arms” that are in common use for lawful purposes?”The way this question is asked, we can see that if decided in favor of gun owners, the overturning of the Maryland AWB would be an unprecedented victory for gun owners nationwide. A Repudiation of assault weapon bans would free states like California, Massachusetts, New York, and New Jersey from their tyrannical state governments who’ve imposed their versions of this “Assault Weapon Ban.” FPC’s Adam Kraut affirmed that position saying, “This case presents the Court with an ideal vehicle to both address the scope of protected arms and constitutionally infirm analysis applied by these recalcitrant lower courts.”The petition correctly describes the term “Assault Weapons” as a “pejorative and inaccurate label for a category of common semi-automatic firearms.” Then quoting directly from Heller goes on to describe those same firearms as “in common use” and “typically possessed by law-abiding citizens for lawful purposes.”Maryland’s AWB is an assortment of inconsistent rules and regulations thought up by bureaucrats in Annapolis who have little understanding of firearms they seek to regulate. A few examples of inconsistencies: AK pattern rifle chambered in 7.62×39? Banned. AK pattern rifle chambered in 5.45×39? Good to go. AK Pistol in 7.62×39? Good to go. The only difference between the banned rifle and pistol? The stock.It also bans the AR15 and other “Scary” looking rifles but allows AR15s that conform to a Heavy Barrel Profile, or HBAR. It also allows for rifles that are functionally identical to the AR15, like the Ruger Mini 14.Ultimately, we won’t know if the Supreme Court will hear the case until sometime in 2022, as The Supreme Court will hear it in their 2022 session. But the chances are good for the Court to take this case up. Many of the Justices have signaled that they’re ready to hear 2nd Amendment cases. If the recent NYSRPA v. Bruen is any indication, we will likely see them tackle more gun rights issues that have far-reaching implications.Also, the makeup of the Court has changed in recent years. With the addition of Amy Comey Barrett replacing Ruth Bader Ginsburg, the Court has a solid conservative majority. As lower court judges, Justice Barrett and Justice Kavanaugh signaled they think courts need to rethink the framework used to often measure how gun regulations are evaluated. This framework is known as “Intermediate Scrutiny.” When intermediate scrutiny is applied, a law has more of a chance to survive legal challenges because the government must prove only that it is “substantially related to an important government interest.”This intermediate scrutiny clause is what has kept not only the Maryland Assault Weapon ban in place but many other AWBs nationwide. If the Justices are looking for a case that has far-reaching consequences for the 2nd Amendment and the process by which states uphold these unconstitutional laws, they need look no further than Bianchi v. Frost.This is why I posed the question: “Is this the beginning of the end for gun control?”In our coverage of gun control issues over the past year, we’ve seen a clear pathway that the anti-gun lobby is taking. Using the NFA, 1968 GCA, FOPA, and other gun control laws on the books, they’ve managed to ban Bump Stocks and inch closer and closer to regulating semi-automatic firearms under the NFA or outright ban them. This Case, Bianchi v. Frost, would put a significant roadblock in front of that.
MCViewPoint 