Lysander Spooner’s No Treason: Section 1

The first sentence of the first section of the book reads, “The Constitution has no inherent authority or obligation.”

Talk about making an entrance.

Lysander Spooner looks at the Constitution as a contract, and as such could only have been binding on those who actually signed it. What a novel idea, that contracts are only applicable to the parties involved. Fine, if everyone signs it good for them, they are a party to the agreement. But as Spooner points out, only a (very) small portion of the people then existing were, “permitted to express either their consent or dissent in any formal manner.”

Even if the Constitution were binding on the people living at the time who actually formally consented to it, all of those people are dead now. Spooner wrote that they had all been dead from 40-80 years. In 2011, we can say that the (incredibly small number of) people who actually formally consented to the Constitution have been dead for well over 200 years.

What’s the problem here? The problem in Spooner’s opinion, and I agree, is that even if the parties who created and assented to the Constitution had intended to bind their posterity to the Constitution (which they did not), who in their right mind could say that these persons had the authority or power to do so? Spooner says it as such: “That is to say, the instrument does not purport to be an agreement between any body but ’the people’ then existing; nor does it…assert any…right…to bind anybody but themselves.”

In illustration of this point, Spooner breaks down the language of the Preamble to the Constitution. Now this is much more important than it seems. As Wikipedia says, and of course Wikipedia is always right,

“The Preamble to the United States Constitution is a brief introductory statement of the Constitution’s fundamental purposes and guiding principles. It states in general terms, and courts have referred to it as reliable evidence of, the Founding Fathers’ intentions regarding the Constitution’s meaning and what they hoped the Constitution would achieve.”

So the rest of the Constitution is based entirely on the preamble and the creators’ actual intentions, and it probably would be a good idea to look at the actual language. So let’s look: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Spooner writes of this, “It is plain…that this language, as an agreement, purports to be only what it at most really was, viz., a contract between the people then existing…and, of necessity, binding, as a contract, only upon those then existing.”

The Constitution is a legal document, so looking at it from the point of contract law proves very fruitful. Of course, we’re taught not to look at it in this manner, but rather as some sort of mystical Ten Commandments like piece of parchment paper sent down to us by the Almighty.

One of the most important points that Spooner makes in the first section is this- the Preamble, which states the intentions of the creators in writing the document, does not in any way, shape, or form state any desire on their part to coercively bind their “posterity” to the Constitution. No where does it say that their “posterity” must or shall live under it; only that the hopes of the creators in adopting it were that, “it might prove useful to their posterity, as well as to themselves, by promoting their union, safety…etc.”

The ethical argument that Spooner makes cannot be overlooked or under weighted. The idea that a group of people intended to and/or had the power to coercively bind all future generations to abide by the Constitution is not only untenable, but immoral. No individual has the right to bind their children and their children’s children to a contract to which only he formally consented.

I wish I could write better than Spooner does about this point, but alas, he hit the nail on the head: “If they had intended to bind their posterity to live under it, they should have said that their object was, not ‘to secure to them blessings of liberty,’ but to makes laves of them; for if their ‘posterity’ are bound to live under it, they are nothing less than the salves of their foolish, tyrannical, and dead grandfathers.”

Spooner gives two examples of which I will retell only one to illustrate the point that the creators had neither intention nor authority to bind their posterity to the Constitution. What is true for Robinson Crusoe on a desert island is true for the society as a whole in an economic sense. So too it is true that what holds for the individual who plants a tree for himself “and his posterity” is the true for a group of people signing a document such as the Constitution. Spooner writes, “…when a man says he is planting a tree for himself and his posterity, he does not mean to be understood as saying that he has any thought of compelling them, nor is he such a simpleton as to imagine that he has any right or power to compel them, to eat the fruit. So far as they are concerned, he only means to say that his hopes and motive, in planting the tree, are that its fruit may be agreeable to them.”

To conclude, the language of the Preamble, which states the intentions of the creators of the Constitution and sets the motive and tone for the entire document does not assert or imply, “any right, power, or disposition, on the part of the original parties to the agreement, to compel their ‘posterity’ to live under it.”

Their intention was only to create a document that their posterity might find useful in promoting their union, safety, tranquility, and that it might tend to secure to them the blessings of liberty.

The next section discusses this idea: if the founders did not and could not bind their posterity, have their posterity bound themselves?

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