The Forgotten Founding Document

32 Pages Posted: 28 Oct 2008

Date Written: October 23, 2008


On the difficult moral issues confronting the judiciary today, a long overlooked bit of guidance is provided in the Declaration of Independence, natural law. This paper discusses the moral foundations of the Constitution and their relation to positive law, primarily addressing "same-sex marriage" in the context of Proposition 8 in California, but broadly applicable to other moral/legal conflicts such as abortion and the display of religious texts on public grounds, such as the Ten Commandments. It also challenges the judicial activism evident in many such cases as a judicial violation of the requirements of substantive due process.

Keywords: same-sex marriage, natural law, Constitution, Declaration of Independence, judicial activism, substantive due process

Suggested Citation

Loveless, A. Scott, The Forgotten Founding Document (October 23, 2008). Available at SSRN: or

A. Scott Loveless (Contact Author)

affiliation not provided to SSRN

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