by Sean Ring
Lysander Spooner said it plainly in 1867: the Constitution has no authority over anyone who never consented to it.
At the time, people thought he was being provocative. A century and a half later, the evidence is on his side.
The document that was supposed to limit government power has become the very thing it was designed to prevent — a rubber stamp for whatever the political class decides to do. The Bill of Rights is still printed. It’s just not particularly enforced. And the gap between what the Constitution says and what Washington actually does has grown so wide that at some point you have to ask Spooner’s question: Was the document ever really in charge?
Let’s go through the evidence.
The First Amendment: Free Speech, With Exceptions
The text is unambiguous. “Congress shall make no law abridging the freedom of speech.” Not “limited law.” Not “reasonable law.” No law.
What we have instead is the Espionage Act of 1917, which has been used to prosecute journalists and whistleblowers. Section 230 pressure campaigns where the federal government leans on private platforms to remove content it dislikes — and calls it “misinformation.” The Treasury Department’s OFAC sanctions list makes it illegal to publish certain information about designated entities. Campus speech codes are blessed by federal funding conditions.
None of this is directly banned. It never is. The modern state has learned that you don’t need to repeal the First Amendment. All they have to do is build a suppression infrastructure around it and call it something else.
In No Treason, Spooner argued the Constitution’s protections were only as good as the willingness to enforce them. When the enforcers are the violators, the document is rendered useless.
The Fourth Amendment: The Right to Privacy, Mostly Gone
The Fourth Amendment reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
Then came the insidious third-party doctrine. In 1979, Smith v. Maryland held that information you share with a third party — a phone company, a bank, an internet provider — carries no Fourth Amendment protection. You “voluntarily” handed it over. The government can have it without a warrant.
In 1979, that meant phone records. In 2025, it means your location data, financial transactions, search history, and your messages. All of it sits with third parties. And since it does, with the right paperwork, all of it is accessible without the warrant the Fourth Amendment explicitly requires.
Exposed by Edward Snowden in 2013, the NSA’s bulk collection program collected the phone records of virtually every American. The FISA court approved it. The legal theory was that because the data sat with telecoms, there was no Fourth Amendment issue.
The Founders wrote the Fourth Amendment because the British used “general warrants” to conduct fishing expeditions through colonists’ papers. The NSA program was a general warrant for every American, running continuously, indefinitely. The Constitution said this was the one thing the government could never do. The government did it anyway, got a secret court to bless it, and kept it classified for a decade.
Spooner’s framework handles this cleanly. He argued that unjust law is no law at all — that legislation which violates prior natural rights has no moral claim to obedience. The FISA court didn’t make the surveillance constitutional. It made it legal. Those are different things.
The Fifth Amendment: Takings and the Death of “Public Use”
“Nor shall private property be taken for public use, without just compensation.”
Two qualifiers. Public use. Just compensation. The Founders were specific because they knew what governments do with vague language.
For most of American history, “public use” meant roads, bridges, and military installations—things the public actually used.
Then came Kelo v. City of New London in 2005. The Supreme Court held that the government could seize private homes and transfer them to a private developer because the development might generate tax revenue. The public benefit was theoretical. The seizure was real. Susette Kelo’s house — the one she’d painted pink in defiance — was bulldozed. The development was never built.
The Fifth Amendment said “public use.” The Court said “public benefit.” One word changed, and the constitutional protection for private property effectively disappeared. Any government that wants your land badly enough can now find a developer, project some tax revenue, and take it.
Spooner saw this coming. His argument about legal monopolies — that government routinely transfers wealth from private citizens to politically connected interests under cover of law — is precisely what Kelo institutionalized.
The Sixth Amendment: The Right to Trial, Quietly Abolished
The Sixth Amendment reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
In all prosecutions. Not most. All.
Today, roughly 97% of federal convictions are obtained through plea bargains. There is no trial. No jury. No public proceeding. A prosecutor presents a defendant with a choice: plead guilty to a lesser charge, or face trial on the full indictment — which, given mandatory minimum sentencing, could mean decades in prison. Most people take the deal.
Most Americans have been priced out of the constitutional right to trial. Built up through legislation from the 1980s onward, the mandatory minimum sentencing system turned the right to trial into a trap. You can exercise it and risk catastrophic punishment. Or you can waive it and go home sooner.
Spooner identified this in An Essay on the Trial by Jury. He argued that the jury was the citizen’s last check on prosecutorial and legislative overreach. Remove the jury, and the state can enforce any law it likes without ever facing a citizen veto.
The Tenth Amendment: The One That Doesn’t Even Pretend Anymore
The Tenth Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
This was supposed to be the hard limit. The federal government has specific, enumerated powers. Everything else belongs to the states or the people. That’s not a suggestion. That’s the structure of the document.
The Commerce Clause killed it. Starting in the New Deal era, the Court ruled that Congress could regulate virtually any economic activity because that activity could, in theory, affect interstate commerce. In Wickard v. Filburn (1942), a farmer growing wheat on his own land for his own consumption was found to be affecting interstate commerce because his self-sufficiency reduced his purchases from the market. It doesn’t get more ludicrous than that.
The Tenth Amendment was reduced to a bunch of clauses with no teeth. Today, the federal government regulates education, healthcare, housing, agriculture, local policing, and school bathroom policies. These powers aren’t enumerated but are justified through Commerce Clause reasoning. The Founders didn’t intend this.
Spooner’s response to this would be the same as his response to everything: show me where the people consented. Not their representatives. Not their grandparents. Them.
The Through Line
Spooner’s great insight was that the document cannot enforce itself.
Every protection has been hollowed out the same way: redefine the terms, construct a legal doctrine that technically complies with the text while gutting the substance, and find a court to bless it.
Free speech applies “except in these categories,” like hate speech (whatever that is).
Unreasonable searches become reasonable when a third party holds the data.
Public use means public benefit.
The right to trial means the right to a trial you’d be insane to actually exercise.
The document is still there. It gets cited constantly — usually by the side trying to expand government power — to explain why the expansion is, in fact, constitutional. The Constitution has become a tool for justifying what the state wants to do, not a limit on it.
Which is exactly what Spooner said would happen.
He argued in No Treason that a constitution which the government interprets, enforces, and adjudicates cannot limit the government. The fox doesn’t guard the henhouse by constitutional design. The people who benefit from power decide what the limits on power mean.
Though anarchocapitalists have adopted Lysander Spooner, he wasn’t arguing for anarchic calm (or chaos, for that matter). He merely wanted an open conversation. If the Constitution doesn’t actually bind the people who wield power, let’s stop pretending it does. Start asking what real limits on power would look like and who would actually enforce them.
Wrap Up
The Fifth Amendment was supposed to protect property. It doesn’t. The dollar is legal tender by federal law. Its value is managed by an institution (the Fed) the Constitution doesn’t mention, and the Founders didn’t authorize. The Fed exists in the same constitutional gray zone as everything else. It’s technically sanctioned by Commerce Clause logic, practically beyond any limit the document anticipated.
Lysander Spooner’s solution was this: First, stop treating the Constitution as a living guarantee. Then, start treating it as a historical document that tells you what the government promised and failed to deliver. Finally, act accordingly.
The Bill of Rights is worth reading. It tells you what they took from you.
