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America's Counter-Revolution
The Constitution Revisited

From the back cover:

This book challenges the assumption that the Constitution was a landmark in the struggle for liberty. Instead, Sheldon Richman argues, it was the product of a counter-revolution, a setback for the radicalism represented by America’s break with the British empire. Drawing on careful, credible historical scholarship and contemporary political analysis, Richman suggests that this counter-revolution was the work of conservatives who sought a nation of “power, consequence, and grandeur.” America’s Counter-Revolution makes a persuasive case that the Constitution was a victory not for liberty but for the agendas and interests of a militaristic, aristocratic, privilege-seeking ruling class.

Thursday, January 21, 2010

Scott Horton, Lysander Spooner, and Me

Scott Horton interviewed me on Antiwar Radio the other day. The subject: Lysander Spooner and his relevance to our times. Here it is.

5 comments:

Stephan Kinsella said...

Sheldon, nice interview. I was not clear on whether you agreed with Spooner's argument that slavery was unconstitutional, though you seemed sympathetic to it. I frankly think Spooner's argument, though well-meant and clever, is tendentious and a ridiculous stretch. For one thing, the Constitution established the federal government and then limited its powers. It didn't make slavery unconstitutional any more than state laws suppressing free speech and establishing a state religion (such as Congregationalism) were "unconstitutional." Not until the 13th Amendment.

Anyway, what came to mind when hearing your discussion of the Spooner argument was that it seemed inconsistent with your views on the Interstate Commerce clause as we discussed in this post. There you seem to dismiss a forced libertarian "wishful thinking" interpretation of the Constitution's IC clause and other clauses--e.g. the "perpetual union" language meaning that perhaps secession was not constitutional, etc. I.e., you seem to be a realist or even cynic there (and you have me half-convinced re the IC clause--esp. after reading Hummel's brilliant article, where he writes "To oversimplify only slightly, the Federalists got their Constitution, but the Anti-Federalists determined how it would be interpreted."). I.e. you rightly see that libertarian attempts to spin the IC clause etc. in a libertarian way are forced and unrealistic. Yet, you don't seem as skeptical of Spooner's tortured argument that slavery was unconstitutional.

I'd be interested in your further thoughts on this.

Sheldon Richman said...

I see no comparison between the Commerce Clauses and "slave" clauses. On its face the CC is not obviously limited to interstate commerce. It says, "commerce among the several states." States didn't engage in commerce. In the article on the judiciary, the framers were capable of saying, "between Citizens of different States" when they wanted to express the interstate idea. They would have used that language in CC if that's what they meant.

Spooner's clauses on their face are not about slavery. ("Other persons" did not typically mean slaves.) You have to outside the document to learn that's why the framers meant.

Stephan Kinsella said...

Sheldon: But the IC clause issue concerns the scope of a grant of power to Congress. The constitutionality of a given federal LAW may turn on how we interpret the IC clause. If it's narrow, then a given federal law may be in effect ultra vires. If it's broad, maybe a given federal law is constitutional. That's why it matters how we construe the IC clause.

But whether "other persons" means blacks/slaves or not does not determine the constitutionality of slavery. What is constitutional or not are LAWS, not practices. Slavery was practiced in the states and regulated (and permitted) by state law. Even if the Constitution prohibited Congress from enacting laws regarding slavery, that does not mean slavery is unconstitutional, any more than censorship was unconstitutional. It was only unconstitutional for Congress to censor and establish a state religion; it was not unconstitutional for states to establish a state religion or censor. But how does ambiguity over what "other persons" means even possibly imply a constitutional limit on state laws regarding slavery?

Sheldon Richman said...

I am simply relating Spooner's logic. He might say that the limitation of the CC to interstate commerce is not stated in unequivocal terms. The plain reading is a grant of plenary power, unfortunate though that is. To really know what he'd think, you'll have to resurrect him. I don't think he would say you twist the words to get a pro-freedom meaning, although I am happy that the CC was interpreted narrowly rather than broadly.

About slavery, in the run up to the Civil War, the constitutionality of slavery was debated. Spooner was answering his fellow abolitionists, who unanimously believed slavery was constitutional.

Stephan Kinsella said...

Sheldon:

"I don't think he would say you twist the words to get a pro-freedom meaning, although I am happy that the CC was interpreted narrowly rather than broadly."

Oh, I dind't realize this. I think we are closer than we realized.

"About slavery, in the run up to the Civil War, the constitutionality of slavery was debated. Spooner was answering his fellow abolitionists, who unanimously believed slavery was constitutional."

Yes, I realize this--but I was curious as to whether you agreed with him. I mean it seems like a very bad argument to me.