 Welcome to Free Thoughts from Libertarianism.org and the Cato Institute. I'm Aaron Powell. I'm Trevor Burrus. Today, we welcome back to the podcast Matt Zalinski. He's Associate Professor of Philosophy at the University of San Diego, a co-director of USD's Institute for Law and Philosophy and the founder of the Bleeding Hearts Libertarians blog. Today, we're going to be talking about an essay by Lysander Spooner. It's a long essay called A Letter to Grover Cleveland on – here, I'll read the full title. It is A Letter to Grover Cleveland on his false inaugural address, the usurpations and crimes of lawmakers and judges and the consequent poverty, ignorance and servitude of the people. Which gives a good sense of his style. That's pretty good. Yeah, that's good. It was written in 1886. So, I mean, let me just start with the very beginning of this, just the opening passage to give the tone of the essay before we move into discussing it because Spooner has a style of his own. So, this is – I mean, as the title says, he's writing this letter to President Grover Cleveland. So, he begins by saying, your inaugural address is probably as honest, sensible and consistent a one as that of any president within the last 50 years or perhaps as any since the foundation of the government. If therefore it is false, absurd, self-contradictory and ridiculous, it is not, as I think, because you are personally less honest, sensible or consistent than your predecessors. But because the government itself, according to your own description of it and according to the practical administration of it for nearly 100 years, is an utterly and palpably false, absurd and criminal one, such praises as you bestow upon it are therefore necessarily false, absurd and ridiculous. And then it goes on for 130 pages like that. It's pretty much – yeah, it goes on. I read it. I was telling this to Matt. I read it in a Keith Oberman voice. That's what I decided. It's like an out with the countdown. So, Matt, who was this guy? So, Losander Spooner was – he was a cranky old man by the time he was writing this. So, this was actually written in 1885 and published in 1886. It was his last published work. He died in 1887. Losander Spooner was an American 19th century lawyer, abolitionist and probably one of the most important 19th century libertarian theorists. A lot of his work was especially early in his career, was heavily focused on the law given his background. So, probably his most famous work and one of his earliest works was an 1845 essay called The Unconstitutionality of Slavery, where Spooner kind of brought together his libertarianism, his belief in natural law and his concern for the constitution to make a concerted argument that slavery as existed in the United States was in fact unconstitutional. That turned out to be a profoundly influential argument among a certain wing of the abolitionist movement and even those abolitionists who disagreed with them, people like Garrison who thought that slavery was constitutional and therefore so much the worse for the constitution had to engage with Spooner on this. So, it was a major, major work. He authored a number of other lesser known pieces throughout his life, too. He had an essay on trial by jury where he makes the case for what we would now describe as jury nullification, which had some influence. He wrote a long essay on intellectual property, so Spooner is one of the best known I guess libertarian proponents of strong, very strong, rights of intellectual property. He wrote a series of essays called No Treason, which are very close in theme to the letter that we're going to be discussing today. And then one of my favorite things by Lysander Spooner actually is this 1875 essay that he wrote called Vices Are Not Crimes, which he published anonymously in this, it was a collection of essays on prohibition in the United States, obviously not the 1920s prohibition, but earlier prohibition, and it's a broadly million argument, right? The idea is, look, there are certain things that people do that are bad, that are worthy of moral condemnation, but not everything that other people do that we disapprove of even with good reason ought to count as criminal and therefore be subject to the kind of coercive prohibition of the law. So it's like Mill's famous essay on liberty, but it's a much more hardcore kind of argument and much more explicitly grounded on an idea of natural rights that I think many libertarians will find appealing. That essay is kind of interesting because it sort of disappeared off the face of the earth for about a hundred years, as I said, and Spooner published it anonymously at first, and it wasn't until Benjamin Tucker wrote his obituary of Spooner in Liberty Magazine that it was discovered publicly that Spooner was the author, and then even after that, it just sort of disappeared and people forgot about it, and it wasn't rediscovered until 1977, so it's not in the collected works, the standard collected works of Spooner, but it's pretty easy to come by now. I believe it is in Individualism a Reader, published by Libertarianism.org. Of course it is. That's an outstanding book, hopefully. Do you know if he was able to support himself through his publishing, or did he work as a lawyer most of the time? He worked briefly as a lawyer. It didn't work out too well for him. I feel like he would feel immoral practicing law. Yeah, I mean, he had a difficult relationship with the law, and as I was telling Aaron earlier, he's not exactly a people person, so I... Yeah, you submit a brief written like this, and you're not going to get very far. I could see him not getting on very well with clients, but he had a number of posts. He worked as a lawyer. He worked as a bank clerk for a while. He was poor throughout his life. He always had financial difficulties, but as his life went on, he had more and more occasion to support himself by his writing. Early on, I mean, one of his earliest and most famous examples to support himself financially was a company he founded in 1844, called the American Letter Mail Company, which was his own private post office, set up to compete with the US government's post office in violation of the law. This was legally prohibited, and Spooner knew it was legally prohibited. He wasn't the only one who was doing this kind of thing. There were a lot of people who were engaged in the private delivery of mail because postage was really, really expensive at the time, so people were resorting to things like sending bundles of newspapers to each other and sort of encoding their messages in the newspapers by circling and underlying various letters because it turns out it's cheaper to mail like a big stack of newspapers to somebody than it is to mail a single letter. But what was unique about Spooner was the fact that he did this openly, and not just in the sense that he didn't make any efforts to hide it, but he actually went out of his way to publicize it. So he wrote this essay called the Unconstitutionality of the Laws of Congress Prohibiting Private Mails, which set out his argument for why, in fact, it ought not be regarded as unconstitutional to set up your own private post office. And it was a nice, simple, elegant argument. The idea was, look, if you look in the Constitution, it clearly gives the US government the power to run a post office. But it doesn't say anything about prohibiting other people from running their own post offices, right? And the delegation of a power to the government is not the same thing as delegation of power to prohibit other people from engaging in that same activity. So he was begging for a fight. He sent a letter, a copy of this pamphlet to the postmaster generally. He said, like, sue me. See how far this goes for you. And they never did. They arrested some of his employees and sued him. And every single letter that was sent through his company was a separate offense. So they were really mounting up the legal bills for him. And by the time it looked like his case might have some legs and actually go somewhere, the government basically conceded by lowering the postage rates and sort of putting him effectively out of business in that way. So this earned Spooner the title, father of the 3-cent stamp because it was the idea like it's his credit that postage rates went as low as they did. So the letter to Grover Cleveland was not the first time he was trying to be a burr in a public official's career. Not the first time, not the second time, not the third time. Spooner made something of a habit of this. He started his legal career actually in agitating in this way. So Massachusetts had a law which said that if you were a college graduate, then you had to practice, you had to work with a lawyer for three years before you could set up your own practice. Whereas if you weren't a college graduate, then you had to work with a lawyer for five years. So this sort of extra burden on non-college graduates. And Spooner protested this, saying that this was an illegitimate restriction and basically a kind of anti-poor, right? Because the college and college education in those days was kind of a luxury. It wasn't like vocational training. It was something you did if you could sort of afford to spend a few years of your life not making money. And so most people from poor and working class backgrounds didn't go to college and Spooner thought this was sort of legalized discrimination against the poor, which is kind of an interesting theme throughout his life. I mean he's a fierce critic of the state. As we'll see in this essay, he thinks that the state routinely oversteps the very narrow bounds of authority that it has and routinely does so in a way that supports the interests of the strong and powerful at the expense of the poor and oppressed. So there's a real kind of left libertarian angle to Spooner's work that runs, I think, just throughout his career from his earliest writings all the way up to the last. I think you've said, perhaps on Facebook, you've expressed your enthusiasm for this particular essay. I love this essay. And so before we get into this essay, I'm curious, what makes this essay better in your mind or more fun than, say, his more famous, the more often anthologized ones I'm thinking of. I mean his, the No Trees in Essay, the Constitution No Authority is probably the most famous. What sets this one apart from those in your mind? So I think this is, it's a more mature work in some ways. Spooner, Spooner's thoughts evolved quite a bit throughout his career. Again, he was born in 1808, died in 1887. No treason was written, I believe, 1867 to 1870. This, and so this was at least 15 years later. So he'd undergone some changes through then. He thought a bit more through things and some of that's reflected in the text. It's a more holistic text as well. It ties together a number of disparate themes that run throughout Spooner's earlier work and that aren't all in no treason. So you get more of the economic stuff in the letter to Grover Cleveland than you would in no treason, which is nice because, again Spooner wasn't just a legal theorist, he wasn't just a philosopher. He had really unique and interesting ideas in a wide range of disciplines. And then it's just fun. I mean it's an angry, cranky old man you can imagine him listening on the radio to this address or like I imagine huddled in the corner. Just sort of face turning red as he hears this and then just firing off this 130 page letter in the course of a couple of hours. It's got that tone to it and there's just some gem quotes in here. Whether you agree with the philosophical argument or not, I mean they're just they're beautifully expressed in a way that they probably wouldn't have been if he'd taken more time to be kind of thoughtful and careful about them. Do you have any idea why Grover Cleveland or anything about did he have, did Grover Cleveland disappoint him or did he have high hopes for Grover Cleveland or is there any reason that Grover Cleveland was the one to receive the blunt of his ire? That's a good question. I don't know. I mean from a libertarian perspective it doesn't seem like there's anything more to dislike about Cleveland than a lot of the other presidents who were alive during Spooner's life. And Spooner says that throughout. I mean he seems to say he says at several points things that you're not particularly worse than anyone else. You seem to be saying the right things but you're just either wrong or lying. But he doesn't seem to have it in particularly for this guy. Yeah. I haven't read anywhere any account of what led him to write this particular essay at this particular time to this particular president. I mean maybe it was just he wanted to write something and saw this as a kind of news hook for his essay. But I'd be interested in finding out if there was more to it than that. I can only speculate otherwise. Well then let's turn to it. I mean he so we'll begin that the essay is broken into a whole bunch of sections and a number of them seem to repeat each other. But that's one of Spooner's styles is he's rather repetitive at times. But we'll start at the beginning. I mean the first argument that he raises as he's talking about Grover Cleveland saying that it's the role of government to create and enforce these laws he's he begins by saying that that he's simply wrong about that. Right. That law exists independently of government. That government has no say one way or another over what the law is. That's right. That's right. So right away in in section one of the essay you basically get Spooner arguing for a kind of anarchism. Right. So he's not soft softly starting off with this argument. So Spooner Spooner was a firm believer in natural law. And you saw this earlier in his writings. He was sort of implicit in the unconstitutionality of slavery. Although again that that was mostly a legal argument. Right. He wasn't he wasn't saying we should get rid of slavery because slavery is unjust or a violation of the natural rights of man. It was he believed that but the argument that he was making there was it's unconstitutional. Later in life he becomes he seems to become more radical ideas of natural law play a greater role in his arguments than idea arguments about what the Constitution does or does not say. And so here in in this letter he's making he's making an argument for for what philosophers would describe as a kind of philosophical anarchism which is an essential which is essentially a denial of the authority of the state to you know in other words a denial of the claim that the state has the right to tell you how to behave or how not to behave and that you as a citizen therefore have a corresponding obligation to obey the state's commands just just because the state commanded them. And it's like many of Spooner's arguments it's it's a fairly simple and elegant argument. The idea is look if the government comes around and passes a law then one of two things must be the case either that law is merely restating the natural law right so so you know maybe the natural law says that it's wrong to go around killing people and so the the government then comes around and says hey it's don't go around killing people well okay that's true but like you haven't added anything to my obligations as a citizen by saying that I already had an obligation not to kill people by virtue of the natural law so in in that case the law is simply superfluous. On the other hand perhaps the law is not in accordance with natural law but in violation of natural law but if that's the case then it's it's criminal. He says it's not it's not anything that we have any any obligation to obey in fact we have an obligation to disregard it right he's sort of echoes of Augustine here and unjust law is no law at all it's an act of usurpation so so either the law is superfluous or it's criminal but in neither case do we have any special obligation to do what the government tells us to do just because the government tells us to do it. That's the telling little phrase and I think it's repeated a bunch of times in the first section which is lawmakers as they call themselves. Every time he says lawmaker he says as they call themselves because they're just powerful people who are telling you what to do but is that a false dichotomy do you think that was space spinners dichotomy there is that is that are there laws that are neither against justice or for justice and they just sort of describe would driving on the left left side of the road right side of the road or or even some basic property law laws like how high above your property you own or things like this would these be neither here in neither of the category that Spooner describes right so that's that's I think is exactly right it's it's more complicated than Spooner presents it here and not I think more complicated than he realizes I think he knows better but he's he's exercising some rhetorical liberties here but it's it's certainly more complicated than he presents it right so it's not just that either law is restate natural law or they conflict with natural law they might they might add sort of add something to natural law without merely restating it or contradicting it so for instance you know you might have a vision of natural law which says that you know part of the part of the obligation of citizens is to find conventions to live amongst each other in ways that facilitate peaceful coexistence right but there could be a lot of different conventions upon which one could settle that would serve that goal and so the important thing then is just to sort of pick one of them and get everybody on the same board like driving on the right hand side of the road right like it doesn't matter whether you drive on the right hand side of the road or whether you drive on the left hand side of the road either one of those allows people to drive down the street without getting into head-on collisions but it matters a lot that everybody's doing the same thing and so you might think there's a rule for government there in in setting that convention and in a way kind of giving a certain sort of specificity to the natural law right this is something I mean this is something that's fairly common place in the natural law tradition you see this in Aquinas going back as far as Aquinas right who says that you know you've you've got the natural law could be stated at a variety of different levels of of specificity right at the most general most abstract the natural law simply says do good and avoid evil which is true very undetermined about that that seems like a good rule but it doesn't really do much to settle questions about you know resolving the kinds of conflicts we face with each other in society so you know you you can you can go further than that through abstract reasoning alone right by reflecting on on on scripture if you're Aquinas or just using your reason and thinking about the the human condition but but even that kind of abstract reasoning will only take you so far at some point you need to sort of settle upon conventions that are going to pick out particular ways of of implementing these abstract rules and that seems like on the natural law approach a perfectly legitimate rule for for government if if it is somewhat reductivist though because I was thinking as I was reading this I was thinking he says things unapologetically as it is clear is data him things that are not clear to anyone most other people and if I was to say oh you want to know about libertarianism and I said here you should read this and they and they would just read it and they say this guy is a nut job who reduces everything down to very basic categories and if that is if the reduction part is somewhat true where do what is the value we find in the way that he does forcefully explain even if they're reductivist categories where is the value of the reduction there well so he's got I mean I think there's still a basic point to that argument right which which holds even once we notice that things are more complicated and he presents them which is that most of us believe that there are moral standards independent of government right most of us think that it's it's not wrong to kill people just because government says it's wrong to kill people and so if you take those natural laws seriously then what what spooner does here is he shows us that those natural laws put a tremendous put a very strong constraint on the legitimate scope of governmental activity it's not maybe it maybe goes too far to say that there's nothing at all the government can do but it certainly narrows the field right and rules certain things out if if they are in conflict with these these basic moral duties what I like about spooner really throughout throughout this essay is that he he makes very vivid what seems to me to be a a key libertarian idea which is that the moral rules that apply to us as individuals apply to governments too you don't get any special magic exemption from the rules and morality just because you and a bunch of your buddies get together and call yourself a government you're still human beings and you're still bound to treat the other human beings with whom you live in the same ways that you would be bound if if you were just a private citizen so if it's wrong for me as a citizen to take your stuff without your consent and spend it on what I think is a really good cause then it's at least prima fascia wrong for the government to do that too if you want to say that there's something special about the government that that makes it okay then there's a very heavy burden of proof on you to explain why that should be the case so that that's a theme that that runs throughout spooner's writings which I think is really really super important for understanding the way libertarians see the world it's I see a lot of parallels actually between the kind of moral argument spooner makes in this essay and the kind of arguments that that my humor makes in his recent book the problem of political authority in both cases you have somebody who's trying to argue for very extreme conclusions right humor like spooner is is an anarchist and but they try to get there by way of what they take to be fairly commonsensical moral beliefs they don't start off with you know asking you to accept any crazy stuff about you know God spoke to me last night and right or you know accept you know accept this absolute prohibition on such a cavity and he's just saying like look you think it's wrong to steal from people okay why is it any different women's government right you think it's wrong for for me to like order you to kill somebody like why you know why we think war is okay then so we had humor on the podcast quite a ways back I believe and about a year ago I think yeah and his but his arguments are coming from he's a moral intuitionist so we have these intuitions about morality and we should I mean I'm totally not but you know we could take them as somewhat true you know they're true if our intuitions are good enough but spooner doesn't seem to argue that way I mean he in in section two he basically says like look this these these natural rights we have this natural law is a science this isn't something you know we just we don't have these free floating intuitions there is a science of this stuff and he then challenges Grover Cleveland saying you know if there is no science of justice how do you know that there is such principle as justice so I guess the question is how does he argue for that science of justice because that's a little different from simply pointing to common sense moral beliefs how does he ground this this science yeah he doesn't do much to ground it it's mostly assertion on his part spooner has an earlier essay called natural law which is his most sustained treatment of these more kind of meta ethical questions about the sort of foundations of of morality and but even there it's a really brief essay I think unfinished I believe and it and it doesn't it doesn't provide what I think contemporary philosophers would regard as anything close to an adequate answer to to that question my own reading of spooner is that we should take his claims about the scientific nature of natural law with a grain of salt it's really I don't think it plays a a strong role in the in the argument I think you know it's it's it sounds like spooner and humor are approaching these questions from two very different frameworks rights you humor is this wishy washy intuitionist and spooner is this rigid natural lawyer but in fact I think they're they're much more similar than they appear I think you know if you look into the kinds of reasons spooner gives for believing that certain principles are true principles of natural law it looks an awful lot like what humor is doing when he calls it intuitionism you know in both cases they're trying to appeal to widely shared moral beliefs and in fact that's kind of the argument that spooner gives for claiming that certain principles or principles of natural law is like look every everybody knows this right you just this is common sense it's you know and this is this is sort of common theme in natural law theory which is that you know the natural law is not difficult to discern we can we can figure out what it is we don't have to wait for God to tell us we can just look around the world think about it and not even think about it all that hard and we'll we'll arrive at these these correct beliefs about what the natural law says it struck me as interesting that in section three we in the first two sections he tends to come out as full-throated anarchist as you possibly could be and then in section three he says sir that's that's I got the Keith Oldman thing sir if any government is to be rational consistent and honest one it must evidently be based on some fundamental immutable eternal principle such as every man may reasonably agree to and such as every man may rightfully be compelled to abide abide by and obey and if the whole power of the government must be limited to the maintenance of that single principle so he then comes and says that the government does have this job that it has to be maintaining justice but doesn't it need taxation and some sort of powers over people in order to do any job that he sort of disavows in the first two sections of the of the work or is I mean so is he a volunteerist some other way is that government though yeah well these are these are excellent questions Spooner never described himself as a as a volunteerist I don't believe he ever described himself as an anarchist either the position that he puts forward in this essay is he clearly puts him in the realm of what we would again what we'd now describe in philosophy is as philosophical anarchism which is where you're denying that the state has any kind of special authority but you can do that without denying that the state should exist right so it's a philosophical anarchism is a kind of anarchism but it's different from say the kind of anarchism that you find expressed in the writings of someone like Murray Rothbard right so Rothbard thinks quite explicitly that not only does the state lack legitimate authority in the sense that Spooner claims so he's he's a philosophical anarchist too but he goes further and says that you know the state is a criminal association that ought to be disbanded and replaced and and Rothbard presents us with this very robust vision of what things would look like if we did away with the state says we could we could provide for all our needs all the needs that the state the legitimate needs that the state provided for us we could provide for ourselves through voluntary combinations through a kind of free market system of defense Spooner never really gets into any of that stuff Spooner never talks really about abolishing the states there are hints in this essay about defense being provided you know it by voluntary means we kind of get together and you know you protect me I protect you but there's there's no talk of like a market in defense and there's no real talk really of abolishing the state it's just you know the idea seems to be that you know it's okay for the state to exist as long as it conforms itself with the principles of natural law but if it does that it sort of isn't going to really be like a state anymore because it's only going to have the power to act as any other voluntary organization would which it means that if it's going to raise revenue to protect your natural rights then it has to do so with your consent and not this kind of airy fairy consent where it's like you know we just assume that you consent because after all you're still living in the territory of the United States but no actual individual explicit consent is necessary in order for taxation to be anything other than robbery so it's yeah the state can exist but it it can exist just as a sort of private club yeah I got that too I got the individual consent I was cut the school I say I was I was trying to find where he was going and I understand it's more of a polemic than a it's a systematic building of a philosophy so I think he's maybe a you know has limited consent or allows for contractual and then there's this part in section seven where he says if every man woman and child in the United States had openly signed sealed and delivered to you and your associates a written document reporting to invest you with all the legislative judicial and executive powers that you now exercise they would not thereby have given you the slightest legitimate authority which which which brings it he talks about being able to sell yourself into slavery and whether or not you can do that and what but it was he is talking about the powers that the government currently has he says no one could have no organization of people could have I think is his point there yeah yeah so Spooners it's interesting because he has a number of different arguments all leading up to the same conclusion that the state lacks legitimate authority right so the you've got that first argument that you know laws either superfluous or it's a criminal then he backs that up with another argument kind of historical argument right against against the social contract theorists which say that look the state derises just powers from the consent of the government the response to that one response to that is well I never consented to anything right I never signed any social contract I didn't endorse the constitution so if the if the authority of the state is supposed to rest upon some actual act of consent and that actual act of consent never happened then the state doesn't have any authority and he even knocks down I mean it one could say well if you vote that act that's an act of consent by the very act participating in that but he knocks that one down too and kind of calls out the absurdity of saying that you know if you're one of gives you some 50 millions of people he says if you're one of these 50 millions and you you happened to vote for something it's it's absurd to think that you had a meaningful choice in the matter yeah which is I mean it's a great argument I mean that's I think a perfectly good argument against a certain kind of social contract theory but then trust the argument that you brought up is I think a third argument which goes beyond the historical argument and says that look even if contrary to fact we had signed this social contract it would be illegitimate and void because the rights that we are supposed to have given up in that social contract are in fact inalienable which means we can't through an act of will give those rights up so it's it's null and void and and the the transfer of authority never goes through I mean he says in quoting him again in section seven he says it is a natural impossibility for any man to make a binding contract that shall invest others with any right whatever of arbitrary irresponsible dominion over him so yeah we just can't and that's and I think one of the interesting things is he then spends a large chunk of the essay after that showing how the state is irresponsible and arbitrary and how it's not bound it doesn't even make a pretext of being bound by the rules that it's written down for itself and and that most of the stuff that it then does is in no way shape or form related to what it claims to exist for which is protecting our rights and enhancing the good of the individuals in the public good yeah that's right that's right yeah the the inalienability stuff is really interesting I think and in some ways a kind of underappreciated element in the libertarian intellectual tradition especially by academic philosophers who are by and large familiar with libertarianism through the work of Robert Nozick as anarchy state in utopia and in that book Nozick comes out against the idea of inalienability and says that you know look if in in a in a free society if people want to sell themselves into slavery then you know there's no reason why they shouldn't be able to do that so he endorses the idea of slavery contracts which seems at first glance like you know that that ought to be what the libertarian position is right like if you have a right to something whether it's a right to you know a property right in your car or a right in your own like a right to your kidney or a right to free speech we think that you know most of those rights the right to your car and the right to your kidney we think ought to be transferable if you want to give those rights up to somebody else in exchange for money or services then there's no reason why you shouldn't be able to do that so why shouldn't we say the same thing about other rights why shouldn't we say you could sell your right to free speech or sell your right to live an autonomous life of freedom right by by putting yourself into a slavery contract but and so that that got Nozick a lot of criticism from people like Sam Freeman who kind of characterized libertarianism as a sort of new feudalism because of this this idea but but actually I think the the mainstream view of the libertarian intellectual tradition is one which holds certain rights to be inalienable in the sense that you just you you cannot transfer that you cannot legitimately transfer them to another person in exchange for any consideration so you got that in spooner you get that Murray Rothbard quite explicitly and you get that in a lot of the earlier Catholic natural law theorists from whom Rothbard kind of selectively drew but it's a puzzling idea I mean it's it's a very common idea in the libertarian intellectual tradition but it's it's quite puzzling as to why we would think it to be true and spooner never really gives us much of an argument here for why certain rights should be inalienable it's just it's just kind of an assertion but isn't it I mean isn't in a sense even baked into our common law contract tradition that so we don't we don't allow what's called specific performance in breach of contract like if I you know make a contract to build a house for Trevor and then I fail to do so the courts aren't allowed to force me to build him a house that would be the court the reason they can't do that because then the third part of the state would be basically enslaving you right but but there's but there's underlying it is this notion that you like you can pay the damages but you can't be you can't be enslaved and that seems like what I mean that's awfully similar to this it's not you know I could so it would be perfectly legitimate for me to say look I'm going to work a certain term of years for you and if I decline if I back out halfway through I may have to pay you some damages or repay you a portion of what you've paid me but no contract of any kind setting aside the issues of social contract or you know libertarian tradition would allow you to force me to continue to finish out my term yeah that's right that's absolutely right but it's not obvious why that should be the case right I mean so you you because in a sense we're limiting but by saying that that's the case we're limiting your ability to enter into certain kinds of contracts right we're saying you can't do this even if you really really want to even if it would be mutually beneficial even if it's an authentic expression of your autonomous will and so forth and it's not clear why we should do that right you think like okay well you you make a contract to do something for me and then you decide you don't want to do it if if we allowed you know the specific performance um then that would involve forcing you to do this thing that you don't want to do you really don't want to mow my lawn anymore uh and we think alright there's something there's something yucky about the state forcing you to do something you don't want to do but the state's going to force you to do something you don't want to do anyways right it's going to force you to give me money you don't want to give give me money for damages for violating your contract but we don't think that's bad. So why is it okay for the state to force you to do that but not for it to force you to do the thing that you said you didn't want to do? There might be a good argument for that. I'm not coming down one way or another on the side of an alien ability but it's tricky. It's a difficult issue and it's, I think, a little under theorized in a lot of the people who endorse it. Aaron had asked the question with, we talked about Spinner's concern of basically giving anything up to the state and what happens in those situations and this is another thing of whether or not, I always wonder if this is the kind of argument that we should read because he has a basically, he has an argument throughout that give him an inch, they'll take a mile or maybe it's give him an inch and there's nothing after that that precludes them from taking a mile which seems like a slippery soap argument. There's well-known problems with slippery soap arguments that are never exactly inevitable. That's a historical question and he says that in Section 8. He says, to say as the advocates of our government do that a man must give up some of his natural rights to a government in order to have the rest of them protected, the government being all the while the sole and irresponsible judge as to what rights he does give up and what he retains and what are to be protected is to say that he gives up all the rights that the government chooses at any time to assume that he has given up and that he retains none and is to be protected in none except such as the government shall at all times see fit to protect and to permit him to retain. Is this going too far? This doesn't seem to be the actual historical case of the government. I mean, there's some governments that take all your rights and he kind of goes back and says the governments can't take all your rights because they need to suck you dry as a taxpayer and a soldier. But, I mean, is he going too far? Well, but he then spends quite a while arguing that the government basically has taken all your rights. I mean, he later, like in section 12, he has, he goes to, I think, five different ways that the government systematically denies our most important rights. So I think, I mean, I don't think that he, my sense is he's not saying like, we've given them an inch. It's, they've already taken everything there is. You just maybe don't recognize it yet. Yeah, I'm a kind of moderate libertarian, but I actually liked this argument. I thought it was pretty good because the way I read it is not that government has necessarily taken all the rights. We don't live under a despotism in the United States now or that. I mean, I'm, I mean, I've read Spooner. I'm not sure we do or don't. And he wasn't even leaving post New Deal America yet. There's a difference no matter how unjust you think the government of the United States might be right now. There's a difference between the United States and North Korea. And I'm glad I live in the former and not the latter. But, but Spooner's point is, look, so you, you entered into this agreement with the United States with the government to, to give up some of your rights. And you also give the power to the government to decide when a particular right that it wants to claim is one that you've actually given up or not. Well, if you've given the other party to your contract, the absolute power to judge the terms of the contract, then you've essentially given up all of your rights. And even if the other party doesn't actually take them, even if they're nice, right, and, and they only, they only tax you a little bit or they only regulate you a little bit. The point is there's nothing really stopping them from going as far as they might like to go. And so if you retain any freedom at all, you retain it only at the discretion of the government. And so you're, you're really in, in what Republican political theorists would describe as a condition of servitude, right? Servitude doesn't mean necessarily that your master is ruling over you at every single moment, telling you what to do and what not to do. It just means that you're, it's always at your master's discretion to tell you what to do and what not to do. And so you can't count on that freedom. You can't claim it as a matter of right. This has always struck me as one of the, the arguments against social contract thinking for justifying the state's power, or at least an argument for why, even if we can't provide a strong reason for an alienability, we ought to think that an alienability should be present, especially when we're talking about a social contract, is that, I mean, that the way that the government operates, it's very nature, it's in any other contractual situation. If I sign a contract with you to do something in exchange for money or whatever, one of the things that you can't do is then just change the terms of the contract down the road. Like, we both have agreed to this thing and it's going to be enforced. And what the state does, I mean, Spooner says they do it under the table all the time. They just ignore terms of the contract. But even officially, the state by the nature of lawmaking changes the terms of the contract all the time. And I have no idea what that contract is going to look like in the future that even if I, let's say I did sign it, like I became a citizen and signed a social contract, I don't know what it's going to look like 20 years from now and voting if I'm one of 50 million people or one of 300 million people is not a meaningful way for me to have much say over that. And so that seems to push us towards this inalienability ought to be baked in just as a precaution given how totally weird the social contract is. Right, right. Yeah, I mean, this becomes especially problematic when you start thinking about consent in terms of tacit consent, right? So the idea that you find in Locke where by continuing to reside in a country after a certain age, you thereby tacitly consent to, well, what exactly? Like, what are the terms to which you are agreeing and what are the limits on those terms? If it's tacit, right, if nobody is actually presenting the agreement to you and asking for your explicit consent, it's very difficult to pin down with any precision what it is you're agreeing to and what rights you're reserving to yourself and not explicitly not delegating to the government. I think that we definitely have to get to, I think it's section 11, that's page 23 of the PDF that I watched. I'm not sure it's the same one. We'll put a link up on the show notes. But since it is election season forever and ever and ever more until the end of our days, we have to definitely get to the part because of the bottom of 22 where he lists all his favorite political pieces of political piffle. And this is again, remember, this is to Grover, Grover, Cleveland. And yet you have to face and let you, and yet you have the face to make no end of professions or pretenses that the impelling power, the real motive and all of this robbery and strife is nothing else than, and these are all now quotes, the service of the people, their interests, the promotion of their welfare, good government, government by the people, the popular will, the general will, the achievements of our national destiny, the benefits which are happy form of government can bestow. And it goes on and on and on and on and on. Hoping change and making America great again. Exactly. And he says, sir, what is the use of such a deluge of unmeaning words unless it be to gloss over and if possible, hide the true character of the acts of the government. Such generalities as these do not even glitter. They are only the stale phrases of the demagogue who wishes to appear to promise everything but commits himself to nothing. I think that pretty much says everything about what we're listening to right now in terms of presidential elections. But again, he has that special flair to, and I don't even know if all those come from Cleveland's speech. I don't know if he was just making them up. It wasn't clear. I couldn't find a copy of Cleveland's speech, but they probably did. But that gets into the section there of the meaning of the politicians, which he gets into some interesting public choice analysis about what the robbers do between each other. Yeah, there's a lot of anticipation of the sort of public choice idea that politicians are no different from ordinary human beings. They have the same kind of motivations that other human beings have. And if we give them large amounts of power, we ought to expect that they will use that power in a way that will benefit themselves and those to whom they're closely connected. That's another theme that just runs throughout Spooner's work. So like on, I think this is section nine, for instance, just one of the passages where Spooner articulates this idea. He says, sir, do you not know that in this conflict between these various diverse and competing interests, all ideas of individual rights, all ideas of equal and exact justice to all men will be cast to the winds that the boldest, the strongest, the most fraudulent, the most rapacious and the most corrupt men will have control of the government and make it a mere instrument for plundering the great body of the people. I have that one double red highlighted. So yes, one of my favorites. Yeah, this idea of plunder is a common term throughout the 19th century. Really, you find this a lot in Bastia, for example, talks about the idea of legal plunder in the law and in other essays. And it's really a very public choice idea. I mean, the idea of plunder is the idea of using the power of the state to enrich yourself at other people's expense. And on these 19th century libertarians saw very clearly that that's despite all the flowery rhetoric about serving the common good, that's what the state actually does when you put power in its hands. So far, we've only touched on the first portion of this very long essay. I mean, after the sections that we've talked about, he goes on to spend quite a while talking about monetary policy and then quite a while talking about the obligations of contract and we encourage all of you to read the whole thing because it's terrific. And like Trevor said, we'll put a link to it in the show notes. But taking as a whole, I know you're a fan of this essay, but also you're skeptical of parts of it. So where do you think Spooner goes wrong? What arguments are not very convincing? Right. So I think, first of all, for readers picking up this essay for the first time, the really important sections are probably the first, I'd say, 13 or so. If you read the first 13 sections and they're all fairly short, you'll get a very good sense of the major ideas in Spooner's work. The stuff after that is interesting, but of secondary importance. As far as where I think Spooner goes wrong, I mean, there are a lot of things that I disagree with Spooner about. So, for instance, I think I'm sort of ambivalent on the issue of intellectual property. I'm not sure, first of all, what the right way of thinking about intellectual property rights is, whether one ought to take a kind of natural rights approach to it or whether that's the kind of thing that we just have to think about in purely consequentialist terms. But even if I buy into a natural rights analysis, I'm not sure that Spooner's analysis of it is quite the right one. Again, it's got a very strong position on intellectual property rights, such that if you create an idea, you come to own that idea in perpetuity, not just for the rest of your life, but you can actually bequeath it to your children, so that on to the end of time, you and your descendants will own the right to that book you wrote or the song you hummed that one down. We are Spooner royalties after all of this. Yeah, that's right. Until the heat death of the universe. Yes. So I think he's not entirely plausible on intellectual property. And on property in general too, I think Spooner is probably more of an absolutist than I would, I think, is warranted. So Spooner's theory of property and physical objects and land and artifacts and things like that is actually explicated in his essay on intellectual property. So there's a good reason to read that essay, even if you don't care about intellectual property per se. And it's a broadly Lockean theory of property, which I think is attractive in many respects, but he modifies the Lockean idea in a couple of important ways. First, he places much less emphasis on labor than Locke did. It's about discovery for Spooner rather than labor. So you don't necessarily have to work the land if you're just the first person to encounter it and put a fence around it, then that's enough to get you title. And I think maybe that's a justifiable move. I think that might be the labor mixing thing in Locke has probably caused more problems than it's created, than it's solved. But the other move is to ditch the Lockean proviso quite explicitly. He rejects the idea that there's any proviso upon the appropriation of natural resources. And just to remind you, the Lockean proviso says that it's okay to appropriate resources for the common for your own private use. You can put a fence around a plot of land, cut down a tree and make a house out of it and so forth. So long as you leave enough and is good for others. The idea being that, look, God gave the earth to mankind in common. It's here to support all of our lives. It's not just here to be your own little private dominion. So it's fine for you to support your own life with the fruits of the earth. After all, that's what it's there for. But you have to allow other people to do the same thing. And so the Lockean proviso plays this pretty important role in limiting initial appropriation. Spooner rejects that things. There's no proviso. So I think that's problematic. I think there are good reasons to be troubled by the idea of property, even from a broadly libertarian perspective. I think Herbert Spencer's discussion of property in the original edition of social statics, that I found to be a much more persuasive account. And Spencer's explicitly anti-Lockean in that essay. You might think Spencer and Locke would be on roughly the same sides. But Spencer says, look, first of all, those of you who are living here in England in the middle of the 19th century who are appealing to Locke in order to justify your own property rights, that only works if the property rights that we have today actually came about through a process of peaceful labor mixing and exchange. And guess what? That's not how we got here. We got here through blood, conquest, and theft. And so even if Locke was right, that wouldn't do a darn thing to justify the rights we actually have, because it didn't come about in the way that Locke said they had to come about. Second of all, the other problem and the deeper, more fundamental problem with the Lockean account is when you enclose land that was previously opened to the commons, you're restricting the liberty of other people. You're saying, here's this piece of land that used to be able to walk across and use however you want. And now you can't do it anymore. And if you try to, I'm going to shoot you. I'm going to use violence against you to stop you from using that land. That's something Spencer says that ought to be kind of troubling to a libertarian, especially if you think, well, where's the end of this? What happens if all the property in the world is appropriated by private hands? And so somebody who's born into it without any property now sort of exists at the will of the property owning classes of mankind. It's like if you don't own any property, you can only stand on the surface of the earth if you get the consent of one of the property owners. And that looks like a kind of condition of serfdom almost, which as libertarians we kind of ought to be troubled by. So I think, again, that's a problem. I don't know that it's an insurmountable problem. I'm not saying let's abolish property rights or anything like that, but I think that Spencer's analysis of property rights is a much more nuanced and sophisticated one than the kind that you get in Spooner. But on the other hand, why should people read Spooner then or read this essay at least of nothing else? If they haven't been convinced, yes. Again, I can't underestimate just how much fun it is. I mean, Erin and I were talking earlier that we could easily spend the entire hour just reading juicy quotes from this essay. There's so much good stuff in here and big stars written all over my copy of the text. So it's a lot of fun. And again, I think there are ideas in here which contain at the very least important insights. Even if we don't want to follow Spooner as far as he goes with those ideas in the kind of absolute strident way that Spooner wants to take them, we must, I think, recognize that he's on to something. And we need to think really carefully about what it is he's on to, what the implications are of what he's on to, and then what the limitations are of what he's on to. So there's some real important insights in here that I think express some deep ideas in the libertarian intellectual tradition, which even if at the end of the day you disagree with those ideas and you're not a libertarian, you reject all this stuff, I think this is just a really provocative thought and a thought provoking piece that will get you to think about government, about voting, about the nature of political power in a way that you probably wouldn't have done so had you not read this essay. So in that sense, it's a real educational experience. Thank you for listening. If you have any questions, you can find us on Twitter at freethoughtspod.com. Free Thoughts is produced by Evan Banks and Mark McDaniel. To learn more, find us on the web at www.libertarianism.org.