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.