By almost all accounts, Memorial Day began in the United States at the conclusion of the Civil War, or shortly thereafter. It was originally often called Decoration Day, and was a way to remember those who had lost their lives during that conflict. Activities almost always included decorating their grave sites. For some time Memorial Day was celebrated on the 30th of May, when flowers would be in bloom in abundance (according to sources cited here), but was officially changed to the final Monday of the month of May in 1971.
The American Civil War involved two extremely important issues of natural law: whether or not human beings could be held as property, and whether or not human beings could be compelled to "submit to, and support, a government that they do not want" (in the words of abolitionist philosopher and lawyer Lysander Spooner, who was an outspoken proponent of the concept of natural law's superiority in all cases to "artificial" or "human law").
Today, it is generally recognized that the idea that human beings can be held as property is a gross violation of natural (or universal) law. However, it is not generally recognized that the idea that human beings can be compelled to submit to and support a government that they do not want is also a violation of natural universal law.
Spooner argued that both are gross violations of natural law, and argued that while it was lawful to use force to stop slavery, and that the American Civil War was lawful to the extent that force was initiated to stop that hideous violation of natural rights, it was not lawful to initiate force to keep someone under a government that they did not want, and that it was regrettable that the justification of the war was usually framed in those terms by those who were arguing for it (rather than as a war against slavery).
Unlike other abolitionists of his day, Spooner argued that the Constitution of the United States did not and could not make slavery legal in any way. William Lloyd Garrison, one of the most prominent abolitionists of the time, believed that the Constitution did indeed sanction slavery, and for this reason Garrison publicly burned a copy of the Constitution during an anti-slavery rally on July 4, 1854 (150 years ago this July). He also publicly called the Constitution a "Covenant with Death and an Agreement with Hell."
Spooner, however, argued that no human law could sanction crime, violence, or wrongdoing -- either by governments or by individuals -- and then went on to demonstrate rather conclusively that this proposition was firmly established well before the ratification of the US Constitution, that all of accepted human law was based upon this principle (and here he cited clear quotations from the accepted authorities of the day, including Blackstone), and that both the Declaration of Independence and the US Constitution could be clearly demonstrated to have "freed every slave in the country" at the time of their signing, even if it could be argued that there were any legal slaves prior to the Declaration or the Constitution (and, he added, he firmly denied that there could have been any legal slaves even prior to those dates).
Spooner published his argument that slavery is unconstitutional and that the Constitution in no way supports it in The Unconstitutionality of Slavery, 1860. This important text can be read in its entirety online here (in the form of a pdf) and here on the site of Project Gutenberg (in various online formats).
While these debates may be seen by some to be relics of the nineteenth century, now that the idea that human beings can be legally made into property has been rejected (or has it?), in point of fact the natural law issues Spooner argues in his treatise are every bit as relevant today as they were in 1860 when The Unconstitutionality of Slavery was first published.
First of all, it is by no means clear that one can separate the proposition that no human being can be made into property (the first important natural-law issue at stake in the American Civil War) from the proposition that no human being can be made to submit to and support a government which he or she does not want (the second important natural-law issue at stake in the same war). Is holding someone in a club, association, group, or political state against his or her will consistent with human freedom? Spooner argues persuasively that it is not, and demonstrates that both the Declaration of Independence and the Constitution agree with his position.
Second, while the immoral laws which supposedly made slavery "legal" during the time Spooner was writing his anti-slavery arguments have now been stricken from the books in the United States, his larger argument that illegal laws -- that is to say, those which violate what he on the very first page of his treatise terms "natural, universal, and necessary principle" -- have no true force of law, is still an extremely contentious and important subject for consideration. Spooner argued that no man or woman has an obligation to obey an immoral -- and hence unlawful -- human statute, and that in fact he or she has an obligation to resist it and to stop it from being immorally enforced in violation of the rights of others.
Spooner's clearest expression of this principle can probably be found in the second chapter of his Defence for Fugitive Slaves, published in 1850, which argues against the law requiring citizens in the northern states to apprehend fugitive slaves or face legal repercussions. There, he writes:
The rescue of a person, who is assaulted, or restrained of his liberty, without authority of law, is not only morally, but legally, a meritorious act; for every body is under obligation to go to the assistance of one who is assailed by assassins, robbers, ravishers, kidnappers, or ruffians of any kind.
An officer of the government is an officer of the law only when he is proceeding according to law. The moment he steps beyond the law, he, like other men, forfeits its protection, and may be resisted like any other trespasser. An unconstitutional statute is no law, in the view of the constitution. It is void, and confers no authority on any one; and whoever attempts to execute it, does so at his peril. His holding a commission is no legal protection for him. If this doctrine were not true, and if, (as the supreme court say in the Prigg case,) a man may, if he choose, execute an authority granted by unconstitutional law, congress may authorize whomsoever they please, to ravish women, and butcher children, at pleasure, and the people have no right to resist them.
The constitution contemplates no such submission, on the part of the people, to the usurpation of the government, or to the lawless violence of its officers. On the contrary it provides that "The right of the people to keep and bear arms shall not be infringed."
[. . .]
To say that an unconstitutional law must be obeyed until it is repealed, is saying that an unconstitutional law is just as obligatory as a constitutional one,-- for the latter is binding only until it is repealed. There would therefore be no difference at all between a constitutional and an unconstitutional law, in respect to their binding force; and that would be equivalent to abolishing the constitution, and giving to the government unlimited power. 27-28.
In the Unconstitutionality of Slavery, Spooner reiterates the same argument, saying that if all laws are defined as being legal by the simple fact of their being enacted as a law, then:
Under this definition, law offers no permanent guaranty for the safety, liberty, rights or happiness of anyone. It licenses all possible crime, both by governments and individuals. The definition was obviously invented by, and is suited merely to gloss over the purposes of, arbitrary power. We are therefore compelled to reject it [. . .]. 14.
This is an extremely important subject, worthy of careful consideration, as pertinent today as it was when Spooner published those arguments in 1850 and in 1860. They should cause us to ask ourselves what "laws" today are actually in violation of natural law, and to what degree we ourselves are guilty of what Spooner called "submission, on the part of the people, to the usurpation of the government, or to the lawless violence of its officers."
In the United States, it is certainly possible to celebrate on Memorial Day the fact that those who fought to stop slavery were fighting on the side of natural law, but it is also possible to ask whether those who fought to take the lands of the Native Americans, a task that the US Army took up in earnest not long after the Civil War was over, and a task that was led by many former Union generals, were also fighting on the side of natural law (the answer is clearly "No"). The same question can be asked of the use of the US armed forces to take over the Hawaiian Islands or the Philippine Islands in the decades following the subjugation of the remaining Native American tribes in the western US (and the same answer is clearly "No" in both of those of those cases as well).
More recent history raises similarly disturbing questions, when considered in light of the subject of natural universal law. Spooner argued that everyone naturally has an innate sense of natural law, and recognizes violations of it. Most notably, he makes this argument in his 1882 tract entitled "Natural Law, or the Science of Justice." But if this is the case, we must ask ourselves how egregious and widespread violations of natural law are tolerated by so many?
If slavery is so obviously a violation of natural law, why was it so widely tolerated in the United States during the years that Spooner was writing his tracts and William Lloyd Garrison was burning copies of the Constitution? If taking the land of the Native Americans by force, and violating every treaty made with them, is so obviously an example of arbitrary and illegal use of force, then why was it so widely supported in the United States during the years following the Civil War? The same can be asked of the heinous atrocities perpetrated by the Nazis and by other murderous state entities during the twentieth century, all clear and egregious violations of natural law which were to some degree tolerated before they were stopped.
One answer to that question is the fact that Spooner's argument that "laws" which violate natural law have no actual legal force, and that men and women have a moral obligation to oppose such laws at all times, is not widely understood -- and is even opposed in many circles. Another answer is given by Spooner himself at the end of the 1882 tract just cited (on page 20), in which he states that human legislation which is in violation of natural universal law almost always makes use of what he calls "pretences and disguises" by which violators of natural law "attempt to hide themselves" (hide the illegality of their actions and usurpations).
While he does not elaborate upon these "pretences and disguises," it has been argued on the pages of this blog that these pretenses and disguises can be grouped under the heading of "mind control." The argument that forms of mind control almost always accompany violations of natural law follows the line of argument advanced by Mark Passio, who is cited in previous posts such as "Blackfish and mind control" and "Lysander Spooner, natural law, and human consciousness."
Such pretenses and disguises often include a "false narrative" or a false history, discussed at some length in this previous post. An obvious example would be the narrative known as "manifest destiny" which was used to gloss over and attempt to hide the atrocities perpetrated against the Native Americans during the second half of the nineteenth century. Enough people in the United States bought into that narrative to prevent them from opposing the activities taking place in the western states, or even from seeing them as the gross violations of natural law that they so clearly were.
Prior to the Civil War, one of the false narratives which was used in order to disguise the criminality of holding human beings as property (in other words, in a state of slavery) was the argument that slavery was sanctioned by the literal interpretation of ancient scriptures (in particular those in the Old and New Testaments) -- a literal interpretation of the scriptures to which large portions of the populace subscribed.
While today it is generally assumed (and taught) that the defense of slavery using the Bible was most prevalent in the southern states, the carefully documented study of this question published in 1987 by Professor of History Larry E. Tise entitled Proslavery: A history of the defense of slavery in America, 1707 - 1840 argues that this view lets the rest of the country off the hook, and is in itself a false historical narrative which was created after the war was over. His research reveals that the institution of slavery was widely accepted and defended across the US prior to the Civil War, notably by members of the clergy in both the north and the south. The book presents evidence that the clergy in the prewar US were an important "moral elite" and powerfully shaped opinion in the towns and counties across the nation, and that their support of slavery was a major factor in its acceptance by the populace.
Professor Tise notes on page xvii the unpleasant fact that "ministers wrote almost half of all defenses of slavery published in America" prior to the war (and that this number only counts the defenses of slavery by ministers that were formally published, and does not count the even more widespread support given in sermons or in informal conversations). Supporting his assertions with tables of evidence, he also demonstrates that the most outspoken of "proslavery clergymen on the whole were among the most successful members of their profession," and that: "Many of the officially designated heads of American churches -- bishops, moderators, and others in the national counsels of almost all churches -- were proslavery ministers. Among churches with hierarchical structures, they could almost always be found at the top" (162-163).
Today, many would argue that the support found by those ministers for a gross violation of natural law in their interpretations of ancient scriptures were in fact misinterpretations of those texts. All the more reason, then, to ask whether ancient scriptures, including those in the Old and New Testaments, are still being misinterpreted (albeit in other ways) in the present day -- and to ask whether they are being misinterpreted in ways which gloss over or even provide support for modern-day violations of natural universal law.
Memorial Day reminds us that these issues have real and very grave consequences. Men and women are asked to fight and even to die for these causes. In light of that extremely serious fact, the issues raised by Lysander Spooner regarding natural universal law -- and the ways in which pretenses and disguises have been used throughout history to cast a false veil of legitimacy over illegitimate and illegal violations of natural universal law -- are most appropriate for careful reflection on this Memorial Day.