A brief, stylized history
In the early days of liberalism, rights had metaphysical, or even theological, heft. The self-evident rights of the American revolutionary generation were “endowed by their creator” and “unalienable.” The theological foundation upon which a government stands, their literally God-given purpose, is “to secure these rights.” Failure to do so, or worse, actively working against this purpose, constitutes grounds for abolishing the government and starting over.
The natural rights of the Declaration of Independence were grounded in the understanding of natural law from the English common law tradition, and given perhaps its purest form at the height of the Enlightenment. Natural law, and by extension the common law (including American common law), was something that existed outside of politics, and outside of all human artifice. It was discoverable through reason, with judges sifting through the reasoned arguments of lawyers to determine the truth of the matter.
Originalists who insist that we must understand law in terms of its original public meaning skirt a basic and awkward fact: that meaning was originally understood in terms of natural law. To truly go back would mean accepting metaphysical and theological principles that even most originalists are not prepared to take seriously.
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