Complete Works. Lysander Spooner
law of justice is just as supreme and universal in the moral world, as these others are in the mental or physical world; and is as unalterable as are these by any human power. And it is just as false and absurd to talk of anybody’s having the power to abolish the law of justice, and set up their own will in its stead, as it would be to talk of their having the power to abolish the law of gravitation, or any of the other natural laws of the universe, and set up their own will in the place of them.
Yet Marshall holds that this natural law of justice is no law at all, in comparison with some “rule of civil conduct prescribed by [what he calls] the supreme power in a State.”
And he gives this miserable definition, which he picked up somewhere—out of the legal filth in which he wallowed—as his sufficient authority for striking down all the natural obligation of men’s contracts, and all men’s natural rights to make their own contracts; and for upholding the State governments in prohibiting all such contracts as they, in their avarice and tyranny, may choose to prohibit. He does it too, directly in the face of that very constitution, which he professes to uphold, and which declares that “No State shall pass any law impairing the [natural] obligation of contracts.”
By the same rule, or on the same definition of law, he would strike down any and all the other natural rights of mankind.
That such a definition of law should suit the purposes of men like Marshall, who believe that governments should have all power, and men no rights, accounts for the fact that, in this country, men have had no “rights”—but only such permits as lawmakers have seen fit to allow them—since the State and United States governments were established,—or at least for the last eighty years.
Marshall also said:
The right [of government] to regulate contracts, to prescribe the rules by which they may be evidenced, to prohibit such as may be deemed mischievous, is unquestionable, and has been universally exercised.—Ogden vs. Saunders, 12 Wheaton 347.
He here asserts that “the supreme power in a State”—that is, the legislature of a State—has “the right” to “deem it mischievous” to allow men to exercise their natural right to make their own contracts! Contracts that have a natural obligation! And that, if a State legislature thinks it “mischievous” to allow men to make contracts that are naturally obligatory, “its right to prohibit them is unquestionable.”
Is not this equivalent to saying that governments have all power, and the people no rights?
On the same principle, and under the same definition of law, the lawmakers of a State may, of course, hold it “mischievous” to allow men to exercise any of their other natural rights, as well as their right to make their own contracts; and may therefore prohibit the exercise of any, or all, of them.
And this is equivalent to saying that governments have all power, and the people no rights.
If a government can forbid the free exercise of a single one of man’s natural rights, it may, for the same reason, forbid the exercise of any and all of them; and thus establish, practically and absolutely, Marshall’s principle, that the government has all power, and the people no rights.
In the same case, of Ogden vs. Saunders, Marshall’s principle was agreed to by all the other justices, and all the lawyers!
Thus Thompson, one of the justices, said:
Would it not be within the legitimate powers of a State legislature to declare prospectively that no one should be made responsible, upon contracts entered into before arriving at the age of twenty-five years? This, I presume, cannot be doubted.—p. 300.
On the same principle, he might say that a State legislature may declare that no person, under fifty, or seventy, or a hundred, years of age, shall exercise his natural right of making any contract that is naturally obligatory.
In the same case, Trimble, another of the justices, said:
If the positive law [that is, the statute law] of the State declares the contract shall have no obligation, it can have no obligation, whatever may be the principles of natural law in regard to such a contract. This doctrine has been held and maintained by all States and nations. The power of controlling, modifying, and even taking away, all obligation from such contracts as, independently of positive enactions to the contrary, would have been obligatory, has been exercised by all independent sovereigns.—p. 320.
Yes; and why has this power been exercised by “all States and nations,” and “all independent sovereigns”? Solely because these governments have all—or at least so many of them as Trimble had in his mind—been despotic and tyrannical; and have claimed for themselves all power, and denied to the people all rights.
Thus it seems that Trimble, like all the rest of them, got his constitutional law, not from any natural principles of justice, not from men’s natural rights, not from the constitution of the United States, nor even from any constitution affirming men’s natural rights, but from “the doctrine [that] has been held and maintained by all [those] States and nations,” and “all [those] independent sovereigns,” who have usurped all power, and denied all the natural rights of mankind.
Marshall gives another of his false definitions, when, speaking for the whole court, in regard to the power of congress “to regulate commerce with foreign nations, and among the several States,” he asserts the right of congress to an arbitrary, absolute dominion over all men’s natural rights to carry on such commerce. Thus he says:
What is this power? It is the power to regulate: that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of congress, though limited to specific objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United States. The wisdom and the discretion of congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they [the people] have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.—Gibbons vs. Ogden, 9 Wheaton 196.
This is a general declaration of absolutism over all “commerce with foreign nations and among the several States,” with certain exceptions mentioned in the constitution; such as that “all duties, imposts, and excises shall be uniform throughout the United States,” and “no tax or duty shall be laid on articles exported from any State,” and “no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another.”
According to this opinion of the court, congress has—subject to the exceptions referred to—absolute, irresponsible dominion over “all commerce with foreign nations, and among the several States”; and all men’s natural rights to trade with each other, among the several States, and all over the world, are prostrate under the feet of a contemptible, detestable, and irresponsible cabal of lawmakers; and the people have no protection or redress for any tyranny or robbery that may be practised upon them, except “the wisdom and the discretion of congress, their identity with the people, and the influence which their constituents possess at elections”!
It will be noticed that the court say that “all the other powers, vested in congress, are complete in themselves, and may be exercised to their utmost extent, and acknowledge no limitations, other than those prescribed by the constitution.”
They say that among “all the other [practically unlimited] powers, vested in congress,” is the power “of declaring war”; and, of course, of carrying on war; that