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University of Pennsylvania Journal of Constitutional Law


This Paper seeks to make a modest contribution to the topic of unenumerated rights in American constitutional law by examining the role that natural law played in our legal system at the time of the founding of the Republic-a period here taken, largely for the sake of convenience, to run from the 1 7 90s through the 1820s. The Paper's focus is on case law, rather than legal theory or constitutional doctrine, although I have tried to say enough about the law of nature as it was understood at the time to put the cases into their intellectual context. Whether the evidence presented here makes any real impact on current controversies about unenumerated rights is not easy to say. Perhaps not. This, however, is a separate question, and except for a hesitant word at the end, this Paper does not address it. I have sought only to discover what role natural law played in day-to-day jurisprudence during the nation's early years and to relate this evidence to the theme of this Conference. In other words, the question being discussed is whether-and in what ways-natural law thinking had any impact on the creation and protection of civil and human rights, drawing most of the evidence from the early federal and state reports.

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