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Intellectual Roots of the American Founding [No. 86]

Intellectual Roots of the American Founding [No. 86]


In the 18th century, at the time of the American
Revolution and the writing of the Constitution, there were certainly individuals, including
Thomas Paine, who wrote Common Sense, and Thomas Jefferson who wrote the Declaration of Independence,
who believed in natural law and the idea that individuals were born with natural and inalienable
rights, including the right to enjoy life and liberty, and the right to enjoy and defend
and possess property. The American framers were all committed Lockeans. They believed with Locke, that all men are
born free and equal, and that it’s only by entering into a social contract through a
written constitution that governments gain legitimacy…. Locke got his idea about the social contract
to some extent from the writings of Thomas Hobbes. And so Hobbes concluded that there should
be absolute dictatorship for one person over the society because that was preferable to
the English civil war of the 1640’s. So Hobbes helped Locke come up with the idea
of the social contract, but his opposition to checks and balances and separation of powers
was completely repudiated. The only influence that that Hobbes had was
in England where William Blackstone, the famous commentator, who argued that the king of England
in parliament with the House of Lords and the House of Commons was absolutely sovereign. And that was a Blackstone’s clever attempt
to harmonize the English balanced constitution, which had a mixed regime of one king, a few
lords and the many people represented in the House of Commons with Hobbes’s insistence
that there’d be one sovereign. And so it was commonplace for Blackstone and
really until very recent years to describe the English model as one of parliamentary
sovereignty. This natural rights thinking on Jefferson’s
part and on the part of a number of Americans influenced one or two state supreme courts
exercising the power of judicial review in the period between 1789 and the decision of
the US Supreme Court in Marbury v. Madison in 1803, but it was not a widely accepted
view. What they thought much more commonly was limits
and written constitutions, state or federal were enforceable by judges and they thought
state declarations of rights and the federal Bill of Rights to some extent constitutionalized
natural rights, but they did not necessarily think that natural law should be used in construing
the federal Bill of Rights or state declarations of rights.

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