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In 1851, Frederick Douglass publicly challenged the position of William Lloyd Garrison and the American Anti-Slavery Society that the U.S. Constitution was a proslavery document. As an enslaved child, the self-taught Douglass had identified literacy as “the pathway from slavery to freedom.” The same insight prompted the mature author and editor to part ways with Garrisonian moral suasionists in order to join “legal suasionists” like antislavery constitutionalist lawyers Lysander Spooner and William Goodell. From the 1840s through the 1890s, Douglass promoted the legal literacy of everyday African Americans (free and enslaved) while developing his own legal-critical analysis of American racism. Committed to wielding the “forms of law and . . . rules of hermeneutics” on behalf of freedom and equality, Douglass tirelessly challenged the increasingly biopolitical orientation of post-Reconstruction legislation and jurisprudence. From slavery to mass incarceration, Douglass insisted, racism is incompatible with the rule of law.
This chapter shifts the focus to the Constitution by tracking the emergence of historical readings of the Constitution and showing how debates over slavery drew attention to the historical realities of change since and distance from the founding era. The very act of producing a written constitution initiated this development. At first, the move to see the new Constitution as archival contributed to its status as a sacred document, but that move also had the potential to rapidly desacralize the Constitution by revealing that its roots rested in a distinct temporal setting. The death of James Madison in 1836 sparked efforts to publish and use his writings to interpret the Constitution. The slavery debates shaped that usage. Some abolitionists followed William Lloyd Garrison in using Madison’s Papers to damn the Constitution, but many antislavery constitutionalists advanced interpretations that emphasized the framers’ anticipation of eventual emancipation. Coupled with a stress on slavery’s unexpected spread and the sudden rise of the Slave Power, these antislavery accounts of original expectation cultivated a new sense of temporal dislocation from America’s most useful past.
This chapter articulates the ideas of the last powerful advocate of natural rights in nineteenth century America. To provide some context for Spooner's natural rights doctrine, it describes briefly some of the views of two other radical libertarian advocates who were writing in England around the time that Spooner began to address questions of political and legal theory in the late 1830s-Thomas Hodgskin (1787-1869) and the early Herbert Spencer (1820- 1903). The chapter considers the views of the early Herbert Spencer. Beginning with his anti-slavery treatises and culminating in his essays on natural law and natural rights, Spooner staked out his position as the most philosophically engaging, forceful, and Lockean voice among the individual anarchists. The representation that Spooner offers is remarkably like Hodgskin's critique of legislation, with the crucial difference that Spooner is in position to distinguish sharply between law, i.e., natural law, and legislation.
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