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
• 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
External and
internal influences
on mankind's ideas
and knowledge
gained by these
John Locke
• Second Treatise of
Civil Government,
• Theory of Natural
Declaration of Rights
Basic Structure
• 1789, National
Assembly of France
established the
Declaration of
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
“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
• Codes- Organized works of
written law
• Common Law vs. Natural Law
•Virginia’s theory on common
• John Winthrop: Governor
General of Massachusetts,
-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,
“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”
Basic Form of Constitution
Bill of Rights
“Lockean Utopia”
Limited Government capable of
maintaining Natural Rights
• Edward S. Corwin’s “The Higher Law
Background of American Constitutional
John Marshall’s Influence on
Natural Rights within the
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
• 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
• Throughout Americanization, Natural
Law’s impact on its citizens
• John Marshall’s change within the Judicial
Locke, John. The Second Treatise of Civil Government. 1690.
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