The Unconstitutionality of SlaverySpooner, Lysander
Philosophy
The Unconstitutionality of Slavery
Spooner, Lysander
Slavery -- United States
Besides, is it not as important to the safety and rights of all
interested, that a constitution or compact of government, established by
a whole people, should be so construed as to promote the ends of
justice, as it is that a private contract or a legislative enactment
should be thus construed? Is it not as necessary that some check should
be imposed upon the judiciary to prevent them from perverting, at
pleasure, the whole purpose and character of the government, as it is
that they should be restrained from perverting the meaning of a private
contract, or a legislative enactment? Obviously written compacts of
government could not be upheld for a day, if it were understood by the
mass of the people that the judiciary were at liberty to interpret them
according to their own pleasure, instead of their being restrained by
such rules as have now been laid down.
Let us now look at some of the provisions of the constitution, and see
what crimes might be held to be authorized by them, if their meaning
were not to be ascertained and restricted by such rules of
interpretation as apply to all other legal instruments.
The second amendment to the constitution declares that "the right of the
people to keep and bear arms shall not be infringed."
This right "to keep and bear arms," implies the right to use them--as
much as a provision securing to the people the right to buy and keep
food, would imply their right also to eat it. But this implied right to
use arms, is only a right to use them in a manner consistent with
natural rights--as, for example, in defence of life, liberty, chastity,
&c. Here is an innocent and just meaning, of which the words are
susceptible; and such is therefore the _extent_ of their legal meaning.
If courts could go beyond the innocent and necessary meaning of the
words, and imply or infer from them an authority for anything contrary
to natural right, they could imply a constitutional authority in the
people to use arms, not merely for the just and innocent purposes of
defence, but also for the criminal purposes of aggression--for purposes
of murder, robbery, or any other acts of wrong to which arms are capable
of being applied. The mere _verbal_ implication would as much authorize
the people to use arms for unjust, as for just, purposes. But the
_legal_ implication gives only an authority for their innocent use. And
why? Simply because justice is the end of all law--the legitimate end of
all compacts of government. It is itself law; and there is no right or
power among men to destroy its obligation.
Take another case. The constitution declares that "Congress shall have
power to _regulate commerce_ with foreign nations, and among the several
states, and with the Indian tribes."
Public-domain text, read in full here on John Shaqi.
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