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The Natural Law Tradition On The Modern Supreme Court: Not Burke, But The Enlightenment Tradition Represented By Locke, Madison, And Marshall., R. Randall Kelso

St. Mary's Law Journal

A traditional common-law style of judicial decisionmaking exists which was present at this nation’s founding. This common law style is derived from natural law tradition. And this tradition stands as an alternative to the formalism of Justice Scalia or the Holmesian style of Chief Justice Rehnquist. This natural law style, with its focus on the religious and communitarian ethical tradition, was the dominant view of judicial interpretation for the framing and ratifying generation of the original Constitution and the Civil War Amendments. The decisionmaking style of Justices O’Connor, Kennedy, and Souter appears to have great affinity with this traditional common-law …