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OBERGEFELL v. HODGES

Thomas, J., dissenting

id., §97, at 49. Upon consenting to that order, men obtained civil liberty, or the freedom “to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of any will or restraint of any law, but what that legislative shall enact according to the trust put in it.” Id., §22, at 13.^[1]

This philosophy permeated the 18th-century political scene in America. A 1756 editorial in the Boston Gazette, for example, declared that “Liberty in the State of Nature” was the “inherent natural Right” “of each Man” “to make a free Use of his Reason and Understanding, and to chuse that Action which he thinks he can give the best Account of,” but that, “in Society, every Man parts with a Small Share of his natural Liberty, or lodges it in the publick Stock, that he may possess the Remainder without Controul.” Boston Gazette and Country Journal, No. 58, May 10, 1756, p. 1. Similar sentiments were expressed in public speeches, sermons, and letters of the time. See 1 C.

↑ Locke’s theories heavily influenced other prominent writers of the 17th and 18th centuries. Blackstone, for one, agreed that “natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature” and described civil liberty as that “which leaves the subject entire master of his own conduct,” except as “restrained by human laws.” 1 Blackstone 121–122. And in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry, ante, at 5 (Thomas, J., concurring in judgment in part and dissenting in part), Thomas Rutherforth wrote, “By liberty we mean the power, which a man has to act as he thinks fit, where no law restrains him; it may therefore be called a mans right over his own actions.” 1 T. Rutherforth, Institutes of Natural Law 146 (1754). Rutherforth explained that “[t]he only restraint, which a mans right over his own actions is originally under, is the obligation of governing himself by the law of nature, and the law of God,” and that “[w]hatever right those of our own species may have… to restrain [those actions] within certain bounds, beyond what the law of nature has prescribed, arises from some after-act of our own, from some consent either express or tacit, by which we have alienated our liberty, or transferred the right of directing our actions from ourselves to them.” Id., at 147–148.

[1] Locke’s theories heavily influenced other prominent writers of the 17th and 18th centuries. Blackstone, for one, agreed that “natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature” and described civil liberty as that “which leaves the subject entire master of his own conduct,” except as “restrained by human laws.” 1 Blackstone 121–122. And in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry, ante, at 5 (Thomas, J., concurring in judgment in part and dissenting in part), Thomas Rutherforth wrote, “By liberty we mean the power, which a man has to act as he thinks fit, where no law restrains him; it may therefore be called a mans right over his own actions.” 1 T. Rutherforth, Institutes of Natural Law 146 (1754). Rutherforth explained that “[t]he only restraint, which a mans right over his own actions is originally under, is the obligation of governing himself by the law of nature, and the law of God,” and that “[w]hatever right those of our own species may have… to restrain [those actions] within certain bounds, beyond what the law of nature has prescribed, arises from some after-act of our own, from some consent either express or tacit, by which we have alienated our liberty, or transferred the right of directing our actions from ourselves to them.” Id., at 147–148.

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