Was Slavery Unconstitutional Before the Thirteenth Amendment? Lysander Spooner’s Theory of Interpretation

In 1843, radical abolitionist William Lloyd Garrison called the Constitution of the United States, a covenant with death and an agreement with hell. Why? Because it sanctioned slavery, one of the greatest crimes that one person can commit against another. Slavery was thought by abolitionists to be a violation of the natural rights of man so fundamental that, as Lincoln once remarked: If slavery were not wrong, nothing is wrong. Yet the original U.S. Constitution was widely thought to have sanctioned this crime. Even today, many still believe that, until the ratification of the Thirteenth Amendment prohibiting involuntary servitude, slavery previously had been constitutional, and for this reason, the original Constitution was deeply flawed. But in 1845 one man disagreed with the conventional wisdom. That man insisted that slavery was not only a moral abomination; it was also unconstitutional. His name was Lysander Spooner and he defended this position in a book, entitled The Unconstitutionality of Slavery. While rejecting his conclusion, Garrison wrote of Spooner\u27s argument: We admit Mr. Spooner\u27s reasoning to be ingenious--perhaps, as an effort in logic, unanswerable. Historians of abolitionism know Spooner\u27s name, but lawyers, law professors and their students generally do not. This is a pity. For Lysander Spooner deserves a place of honor among American lawyers, both for the principles for which he stood against the crowd and for the brilliance with which he defended those principles. In this Essay, though the author will be unable to do his analysis complete justice, he wants to describe the method of constitutional interpretation that led Spooner to his conclusion about slavery. In many ways, Spooner\u27s interpretive approach has a very modern ring. In important respects, however, his approach is preferable to those commonly used today and worthy of study for this reason alone

DISCUSSIONS REGARDING THE PRESCRIPTION IN CRIMINAL LAW

This study displays certain controversial issues related to the prescription of criminal liability and the prescription of the punishment execution, analyzing them both theoretically and practically, based on the resolutions of the courts in Romania. Thus, the study debates upon the acts that can lead to interruption of the course of prescription and the punishment to be taken into account when calculating the prescription period of the punishment execution, as well as upon the relevance of the period when the trial was suspended in the course of adjudication in what concerns the plea of unconstitutionality, under the former regulations in this matter.prescription of criminal liability, prescription of the punishment execution, criminal law

The Constitution of Reasons

Cass Sunstein\u27s book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court\u27s repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference than we do to presently held preferences and presently conceived interests in our public or collective decisionmaking; and for the view that at the heart of our constitutional traditions lies a commitment to deliberative democracy which, if sufficiently attended, could generate many more specific constitutional entailments, including but not limited to those put forth above. This book represents, and by so doing strengthens, these arguments and a good number of others as well. This book is well worth reading and rereading if for no other reason than to get a sense of the power of traditional legal arguments when put to often quite nontraditional political ends. What Sunstein has tried to do in this book is to weave his arguments on particular issues into a coherent whole, largely by identifying and then developing the common philosophical premises of the various positions he has taken over the last ten years. He then argues that the conception of the Constitution that emerges from a careful elaboration of those premises is both truer to our history and more just than the competing visions of the Constitution that both constitutional theorists and the Court have developed in the modem, post-New Deal era. Importantly, though, Sunstein does not simply present his interpretation of the Constitution as one possible interpretation among any number. Rather, his starting premises, he clearly believes, are correct and widely held to be so. If that assumption is right, and if we share with him a commitment to rational forms of argument, then the Constitution he envisions is not just his interpretation; instead, it is in an important sense our Constitution. It follows that the conclusions he reaches on substantive constitutional positions, including some he calls surprising, should command general assent. I think this larger, overarching project is not in the end successful, but I also think it is a tremendously worthy endeavor. It is a project full of promise and hope: the Constitution here envisioned is a just Constitution which could indeed service the ends of justice in contemporary life. Consequently, when the project fails, the failures are tremendously disappointing, and the reasons for those failures important. In this review, I will first describe the deep structure of Sunstein\u27s Constitution by outlining what I take to be the major premises elaborated in his book and then criticizing sequentially each of the premises I take to be the basic building blocks of Sunstein\u27s partial Constitution. All of Sunstein\u27s basic premises, I think, are more problematic than Sunstein believes them to be. By identifying the problems I hope to suggest that the flaws, although deep, are curable, and that whether or not that is the case, the constitutional goals Sunstein puts forward in this book are goals we should applaud

Partial Unconstitutionality

Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem--severability doctrine-is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based understanding of judicial review is supposedly traceable to Marbury v. Madison. In fact, this attribution is anachronistic. Moreover, the prevailing view is wrong about the distinctive function of modern severability doctrine, which is not to save, but to destroy. This Article retrieves the original approach to partial unconstitutionality and develops a proposal for implementing a version of that approach. The proposal, displacement without inferred fallback law, is simultaneously ambitious and modest. It is ambitious because it proposes a shift in the general framework for judicial review in every case; it is modest because the proposed shift would change case outcomes in only a small set of highly consequential cases

Partial Unconstitutionality

Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem--severability doctrine-is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based understanding of judicial review is supposedly traceable to Marbury v. Madison. In fact, this attribution is anachronistic. Moreover, the prevailing view is wrong about the distinctive function of modern severability doctrine, which is not to save, but to destroy. This Article retrieves the original approach to partial unconstitutionality and develops a proposal for implementing a version of that approach. The proposal, displacement without inferred fallback law, is simultaneously ambitious and modest. It is ambitious because it proposes a shift in the general framework for judicial review in every case; it is modest because the proposed shift would change case outcomes in only a small set of highly consequential cases

Foreword: Why Popular Sovereignty Requires the Due Process of Law to Challenge Irrational or Arbitrary Statutes

So-called “substantive due process” has long been criticized progressives and conservatives as a contradictory interpretation of the Due Process Clauses, and one that undermines the popular sovereignty of We the People to govern themselves. In this Foreword, I explain why an individual conception of We the People, leads to a “republican” conception of popular sovereignty that requires a neutral magistrate to adjudicate whether a statute restricting the liberties of the We the People is within the just powers of a legislature to enact. Because a measure that is ultra vires is not truly “a law,” enforcing it against a fellow citizen and joint sovereign so as to deprive that person of his or her “life, liberty or property” violates what should be called the Due Process of Law Clauses. While the proper ends of Congress’s powers are enumerated in the text of the Constitution, the police powers of the states are more general. Still, the exercise of such powers to restrict the privileges or immunities of citizens in an “irrational or arbitrary” manner is beyond the just powers that a sovereign people can be presumed or supposed to have delegated to their servants in the legislature. Courts, who are also servants of the We the People, readily perform this type of evaluation when a “fundamental right” or “suspect class” is affected by the exercise of the police power, so such judicial engagement is well within their competence

Robinson v. Cahill: The “Thorough and Efficient” Clause

In Robinson V. Cahill, the New Jersey Supreme Court unanimously affirmed a trial court invalidation of the state\u27s school finance statute on the basis of the thorough and efficient education clause of the state constitution. This article reviews this case in detail, its genesis, its legal theories, its constitutional guidelines, and its implications for New Jersey and possibly other states

The galician judicial experience in the field of autonomic labour cuts: a study on its legal and constitutional basis

[Resumo] Análise da experiencia xudicial galega no tocante aos recortes laborais aprobados pola Lei do Parlamento de Galicia 1/2012, do 29 de febreiro, que procede á inaplicación e suspensión parcial do V Convenio colectivo único do persoal laboral da Xunta de Galicia. A diferenza do fallado polo Tribunal Superior de Xustiza de Galicia e polo Tribunal Supremo, que consideran que esta lei autonómica está por riba do convenio colectivo citado, un voto particular da sentenza galega defende a necesidade de presentar unha cuestión de inconstitucionalidade contra esta disposición legal por invadir competencias exclusivas do Estado en materia laboral. A inconstitucionalidade da lei galega mantense aínda que logo o Estado ditase o Real decreto lei 20/2012 para dar cobertura legal aos recortes autonómicos previamente impostos.[Abstract] Analysis of the Galician judicial experience on the labour cutbacks made by the Law of the Galician Parliament 1/2012, 29 February, that proceeds to the non-application and partial suspension of the V Collective Agreement of the Xunta de Galicia´s non-civil service staff. Unlike the failed by the High Court of Justice of Galicia and by the Supreme Court, that consider that this autonomic law is above the collective agreement, a dissenting opinion of the Galician judgement defends the need to present a exception of unconstitutionality against this law for invading matters of exclusive State jurisdiction in labour subjects and on which the autonomic public authorities can not legislate. The unconstitutionality of the Galician law keeps although afterwards the State dictated the Royal decree-Law 20/2012 to give legal coverage to the autonomic cutbacks previously established, so that it does not correct that vice of unconstitutionality