Comments on: Dr Frasier Crane on the Constitutionality of Slavery http://bkmarcus.com/blog/2007/02/dr-frasier-crane-on-the-constitutionality-of-slavery individualism for the masses Wed, 03 Mar 2010 05:36:46 -0500 http://wordpress.org/?v=2.8.4 hourly 1 By: Gil Guillory http://bkmarcus.com/blog/2007/02/dr-frasier-crane-on-the-constitutionality-of-slavery/comment-page-1#comment-192 Gil Guillory Sun, 25 Feb 2007 00:35:04 +0000 http://bkmarcus.com/blog/2007/02/dr-frasier-crane-on-the-constitutionality-of-slavery#comment-192 I guess my comment was not clear. By "mutual mistake" I was attempting to refer to a situation where party A and party B write a contract which they intend not to include provision X, but that a plain reading of the contract reveals that provision X is written into the contract. I thought that was "mutual mistake", but I see that many online references label it "common mistake". Traditional contract law states that in this type of mistake, party A and party B are free to ignore provision X. So, if A=the state and B=the citizenry and X=the prohibition of slavery and the contract under question is the Constitution, then by contract law, A and B are free to ignore provision X. Of course, I think Spooner's interpretative school is more subtle than that. Other: If I am not mistaken, Spooner became an anarchist after writing his book on the unconstitutionality of slavery. I guess my comment was not clear. By “mutual mistake” I was attempting to refer to a situation where party A and party B write a contract which they intend not to include provision X, but that a plain reading of the contract reveals that provision X is written into the contract. I thought that was “mutual mistake”, but I see that many online references label it “common mistake”. Traditional contract law states that in this type of mistake, party A and party B are free to ignore provision X. So, if A=the state and B=the citizenry and X=the prohibition of slavery and the contract under question is the Constitution, then by contract law, A and B are free to ignore provision X.

Of course, I think Spooner’s interpretative school is more subtle than that.

Other: If I am not mistaken, Spooner became an anarchist after writing his book on the unconstitutionality of slavery.

]]> By: bk http://bkmarcus.com/blog/2007/02/dr-frasier-crane-on-the-constitutionality-of-slavery/comment-page-1#comment-156 bk Thu, 22 Feb 2007 05:12:36 +0000 http://bkmarcus.com/blog/2007/02/dr-frasier-crane-on-the-constitutionality-of-slavery#comment-156 For those who don't understand Gil's question (I didn't!), here's what <a rel="nofollow" href="http://en.wikipedia.org/wiki/Mistake_(contract_law)#Mutual_mistake" rel="nofollow">Wikipedia has to say</a> about <em>the doctrine of mutual mistake</em>: <blockquote>"A mutual mistake is when both parties of a contract are mistaken as to the terms. Each believes they are contracting to something different. The court usually tries to uphold such a mistake if a reasonable interpretation of the terms can be found."</blockquote> Well, we all know that Spooner denied that the Constitution was a legitimate contract, but since the name of the game is "for the sake of argument," I guess the fact that courts usually try "to uphold such a mistake if a reasonable interpretation of the terms can be found," means we're back to the question of interpreting the words of the document itself. For those who don’t understand Gil’s question (I didn’t!), here’s what Wikipedia has to say about the doctrine of mutual mistake:

“A mutual mistake is when both parties of a contract are mistaken as to the terms. Each believes they are contracting to something different. The court usually tries to uphold such a mistake if a reasonable interpretation of the terms can be found.”

Well, we all know that Spooner denied that the Constitution was a legitimate contract, but since the name of the game is “for the sake of argument,” I guess the fact that courts usually try “to uphold such a mistake if a reasonable interpretation of the terms can be found,” means we’re back to the question of interpreting the words of the document itself.

]]> By: Gil Guillory http://bkmarcus.com/blog/2007/02/dr-frasier-crane-on-the-constitutionality-of-slavery/comment-page-1#comment-150 Gil Guillory Wed, 21 Feb 2007 23:09:13 +0000 http://bkmarcus.com/blog/2007/02/dr-frasier-crane-on-the-constitutionality-of-slavery#comment-150 If the Constitution is taken as a compact between citizens and the state, and a majority of the citizenry wants slavery to continue, then even if Spooner's argument is correct, wouldn't it be nullified by the doctrine of mutual mistake? If the Constitution is taken as a compact between citizens and the state, and a majority of the citizenry wants slavery to continue, then even if Spooner’s argument is correct, wouldn’t it be nullified by the doctrine of mutual mistake?

]]> By: Anthony Gregory http://bkmarcus.com/blog/2007/02/dr-frasier-crane-on-the-constitutionality-of-slavery/comment-page-1#comment-105 Anthony Gregory Wed, 14 Feb 2007 19:53:50 +0000 http://bkmarcus.com/blog/2007/02/dr-frasier-crane-on-the-constitutionality-of-slavery#comment-105 On the other hand, the Constitution's literal meaning might empower the government in broader ways than the framers intended. And I still am unconvinced that the literal meaning of the original Constitution would have disallowed slavery. On the other hand, the Constitution’s literal meaning might empower the government in broader ways than the framers intended. And I still am unconvinced that the literal meaning of the original Constitution would have disallowed slavery.

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