Elias Neibart (Harvard Law School J.D. '25) has posted Beyond Locke and Towards a More Accurate Intellectual History of American Constitutionalism (Harvard Journal of Law and Public Policy, No. 36, 2023) (8 pages) on SSRN. Here is the abstract:
At a time when originalism is supposedly at its high-water mark, an ahistorical myth about Locke and his influence persists. Courts have embraced a story about Locke and the American founding — invented in the twentieth century — and turned it into an authoritative "history" of 1787. And it’s not their fault. The myth of Locke has simply become so pervasive, dominating the academic, political, and legal realms. Even so, it is incumbent on originalists, who care deeply about the original legal ideas of the founding, to not lose sight of the original political thought of the period. Originalists should speak up when they witness invocations of Locke that don’t pass historical muster.
Posted at 6:09 AM