ABSTRACT
Our modern appreciation of individualism, empiricism, and rationally binding obligation all find philosophical roots within his theoretical framework. Perhaps most importantly, Hobbes’s name remains famous as the source of modern political legitimacy based on popular consent, conceived in terms of a social contract. Because of this, any discussion of modern contract, particularly in a political context, owes at least a cursory glance to Hobbes’s preliminary work so as to make sense of contemporary contractual implications.2 As it pertains to our discussion, the liberty of contract within constitutional jurisprudence claims something essential and inalienable about these relationships, justified by the latent social contract theory of our founding documents. If the argument of Justice Peckham is acceptedthat is, that the liberty of contract can trace its roots to a preconstitutional right protected by constitutional provision-then it becomes the duty of those who would interpret the law to discover as much as they can about the nature of this right. What does it mean to have a “liberty of contract,” and why do we hold such a right? In answering these questions, Hobbes provides Peckham’s model with the additional girding necessary to permit coexistence between the liberty of contract and what might otherwise be seen as irreconcilable constitutional demands.
