Originalism: Historic and Philosophic Roots

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.