499Gautier10Presentation

John Locke’s Natural Law: as Interpreted in the American Founding and Early American Judiciary, 1690 through 1810

Rachael Gautier November 30, 2010

Points of Interests • • • •

John Locke and The Natural Rights Theory Declaration of Rights Colonial Use of Natural Law Declaration of Independence and Thomas Jefferson’s use of John Locke’s Natural Law Theory • Constitution • John Marshall’s influence on Natural Rights in the Constitution

John Locke and The Natural Rights Theory

Natural Law: Pre Locke

• Stoicism and Ancient Greeks • Early definition of Natural Law – – – –

Individuals are entitled at birth to certain "natural rights" All human beings are endowed with reason “Social Contract“ A ruler or legislature acts against the welfare of the people

John Locke’s Early Studies • • • •

Spirituality Medicine Physicality External and internal influences on mankind's ideas and knowledge gained by these studies

John Locke • Second Treatise of Civil Government, 1690 • Theory of Natural Rights

Declaration of Rights

Basic Structure • 1789, National Assembly of France established the Declaration of Rights.

Locke vs. Declaration of Rights Locke, “Law of Nature”

Declaration of Rights

“The right of each man to interpret and enforce the laws of nature as they see fit, may be a source of much chaos. So, in order to regulate the implementation of these laws, man agrees to a social contract, under which all men are governed by one common ruler”

“The ignorance, neglect, or contempt of the rights of man are the sole cause of public calamities and of the corruption of governments, have firmly set forth in a solemn declaration the natural, unalienable, and sacred rights of man”

Colonial Use of Natural Law

Virginia • Codes- Organized works of written law • Common Law vs. Natural Law

•Virginia’s theory on common law

Massachusetts • John Winthrop: Governor

General of Massachusetts, 1645 -Two fold liberty: natural v. federal •Puritan’s contradictory stance on early “natural law” ideas

Declaration of Independence and Thomas Jefferson’s use of John Locke’s Natural Law Theory

Declaration of Independence • 1776, Founding Father’s adherence to the concept of natural law

Jefferson’s use of Locke’s Essay in the Declaration of Independence • John Locke, Second Treatise of Government, Law of Nature, 1690. “Nature is a state of perfect equality amongst all men. In this state, no one man has more power or jurisdiction than any other man… life, health, liberty, or possessions.”

Thomas Jefferson, Declaration of Independence, 1776 “That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness”

Constitution

Basic Form of Constitution • • • •

Articles Bill of Rights “Lockean Utopia” Limited Government capable of maintaining Natural Rights

Constitution • Edward S. Corwin’s “The Higher Law Background of American Constitutional Law”

John Marshall’s Influence on Natural Rights within the Constitution

Marshall’s Thoughts on Common Law • Opinion on Common Law • Positive Law and Written Law • First of his time – George Wythe, Edmund Pendleton

Marshall and his Influence on natural law in the Constitution • Interpretation of the Constitution • Charles Hobson’s The Great Chief Justice: John Marshall and the Rule of Law • Marbury v. Madison: first of it’s time.

Concluding Thoughts • Natural Law is a means by which mankind can rationally guide themselves to their good • Throughout Americanization, Natural Law’s impact on its citizens • John Marshall’s change within the Judicial system

References •

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Locke, John. The Second Treatise of Civil Government. 1690. http://oregonstate.edu/instruct/phl302/texts/locke/locke2/locke2nd-a.html#CHAP.%20II Smith, Joseph H. Colonial Justice in Western Massachusetts: The Pynchon Court Record. Harvard University Press. 1961 Porter, Albert Ogden. County Government In Virginia: A legislative History. Columbia University Press. 1947 Lutz, Donald S. Documents of Political Foundation Written by Colonial Americans: From Covenant to Constitution. Institute for the Study of Human Issues. Philadelphia, 1986 Tomlins, Christopher L. and Mann, Bruce H. The Many Legalities of Early America. University of North Carolina Press, North Carolina, 2001 Herbert Wechsler, “Toward Neutral Principles of Constitutional Law,” Harvard Law Review, November 1959, vol. 73 Grant, James. The Rise of Juristocracy. Wilson Quarterly Spring, 2010. Vol. 34. Benedict, Michael Les, The Blessings of Liberty: A Concise History of the Constitution of the United States, D. C Heath and Company, Massachusetts, 1996 Hobson, Charles F. The Great Chief Justice: John Marshall and the Rule of Law. University Press of Kansas. 1996 http://www1.assumption.edu/ahc/1770s/corenatural.html