American Political Science Review

Vol. 101, No. 2

May 2007

DOI: 10.1017.S000305540707013X

Can the Prince Really Be Tamed? Executive Prerogative, Popular Apathy, and the Constitutional Frame in Locke’s Second Treatise BENJAMIN A. KLEINERMAN

Harvard University and Virginia Military Institute

E

ven as he recommends it as the extra-constitutional solution to the inefficiencies and insufficiencies of legislative constitutionalism, Locke’s Second Treatise is far more aware of the dangers of executive prerogative than the more optimistic accounts in the recent scholarship have appreciated, making Locke pessimistic about the permanent sustenance of legislative constitutionalism. This pessimism stems from Locke’s recognition that the people are far too constitutionally passive for the vigilance essential to “umpire” well the necessity of executive action outside the laws. In fact, liberalism itself can contribute to such passivity: the people are content to allow an executive to act with a significant degree of discretion outside the laws so long as those actions do not interfere with their short-term interest in security and prosperity. Understanding Locke’s pessimism regarding popular vigilance casts into new light his argument for a legislative constitutionalism based on fundamental laws that establish a clear separation of powers. Such fundamental laws provide legislative elites with the constitutional “signals” by which they can alert the otherwise slumbering people about an executive intent on usurpation and tyranny. evelations of spying by the National Security Agency (NSA), allegations of prisoner abuse by the executive-controlled military in Guatanomo Bay, and the decision to detain for extended periods of time U.S. citizens such as Hamdi and Padilla without a trial, deeming them instead as “enemy combatants,” all point to serious issues concerning the growth of executive power in the post9/11 world. Although these questions have been raised with more urgency recently, they are by no means new. Charges that an “imperial presidency” has developed have been a permanent part of both the political and the scholarly landscape in the post-World War II era (see, e.g., Schlesinger 1973; Fisher 1995); it is simply that certain presidential actions sometimes bring these concerns to the center of political discourse. It should be said, however, that the nature of the terrorist threat has, to some degree, altered the direction of these concerns. Whereas scholars such as Schlesinger and Fisher worried more about unchecked presidential power in foreign policy, there has come to be much greater concern about domestic presidential powers (see, e.g., Baker 2002; Kassop 2003). Underlying this concern is a greater emphasis on the tension that exists between a discretionary power, which the nature of the threat seems to necessitate, and a constitutional government

R

Benjamin A. Kleinerman is Assistant Professor, Department of International Studies and Political Science at Virginia Military Institute, and Visiting Scholar, Program on Constitutional Government, Harvard University, CGIS Knafel Building, 1737 Cambridge St., Cambridge, MA 02138 ([email protected]). I would like to thank Jim Ceaser, B.J. Dobski, Dennis Foster, Steve Kautz, Arthur Melzer, and Dick Zinman for their helpful comments on earlier versions of this paper. An earlier version of this paper was presented at the annual conference of the Midwest Political Science Association, April 2006. I would like to thank Anthony Peacock and the other members of my panel for their comments on this paper. I would also like to thank the Earhart Foundation for providing me with a summer grant. Finally, I should like to thank the anonymous reviewers whose incisive criticisms made this paper much better than it would have been.

that forecloses discretionary, because potentially arbitrary, power (Kleinerman 2005, 803–805). Although good scholarship exists to show both that the president has grown in power and, more recently, that the president’s enlarged discretionary powers strain and, potentially, destroy constitutionalism (Lobel 1989), less attention has been given to the question why presidents succeed in their grabs at power and, if we think the current situation is in need of a remedy, what that remedy might be. The perception of a tension between executive power and liberal constitutionalism is by no means confined to American political discourse; it is indicative of a more general problem faced by all constitutional democracies (Rossiter 1948). But, again, insufficient systematic attention has been given to why a democracy, where the people could seemingly choose otherwise, consent to a development that, so it is asserted, is so contrary to their interests.1 It is asserted that this situation is contrary to their interests because the inherently discretionary nature of executive power and its typical assertions of a prerogative power outside the laws cause it to rest uncomfortably within a constitutional system defined by Locke as governing by “establish’standing laws, promulgated and known to the people” (Locke 1988, The Second Treatise, 131; hereafter referred to as ST followed by section number). Constitutional government is in the people’s interest because it frees them from worries about arbitrariness from their government; discretionary executive power has the inherent potential to be arbitrary. If they have addressed the question as to why the people consent to its growth, certain theorists have 1 For instance, even with his otherwise low approval ratings, the lack of a negative public reaction to and even the approval of the revelations of Bush’s authorization of NSA wire-tapping indicates this indifference and acquiescence to constitutional questions involving executive power. Even with Bush’s approval ratings at 40%, 54% found the NSA’s warrant-less monitoring of phone calls “generally right.” See the February 7, 2006, Pew Poll titled: “Bush Gaining on Spy Issue.” http://people-press.org/reports/display.php3?ReportID=269. Accessed 8/14/06.

209

Locke’s Second Treatise

gone so far as to find this problem indicative of a fundamental insufficiency and contradiction in liberal constitutionalism itself (see, e.g., Agamben 2005). Though most do not go this far, underlying the whole thrust of this scholarship is the perception that the founders of liberal democratic constitutionalism did not sufficiently appreciate the dangers of executive power—–dangers that exist precisely because discretionary executive power would become so necessary to maintain security, both internally and externally, over and against the failings of an insufficiently flexible and discretionary legislature and, more generally, of the constitutional order itself. In this same spirit, Lincoln’s July 4, 1861, speech to Congress in Special Session asks if constitutional republics possess an “inherent and fatal weakness.” Must they “of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” (2001, 598). Recently, scholarship on Locke has, in a certain sense, attempted to correct this perception by showing that the preeminent founder of liberal constitutionalism (Pangle 1987, 255–57; Faulkner 2001, 9) included an executive “prerogative” power in his conception of government (Pasquino 1998; Fatovic 2004a). These scholars rightly show that Locke’s conception of prerogative reveals as mistaken those who impute to him a na¨ıve “rationalist confidence in juridico-institutional mechanisms” (Fatovic 2004a, 278) and that his inclusion of a prerogative power illustrates his awareness of and response to “the limitations of the rule of law” (Thomas 2000, 537). Because the executive is “endowed with its own will and responsibility that permit it to face the unpredictable (Pasquino, 202),” it is capable of fulfilling the end of constitutional government, the security of the people’s liberty, when a stricter adherence to the rule of law would prevent such fulfillment (Mattie 2005, 79). In other words, scholars have increasingly recognized that Locke well understood that the “establish’d, standing Laws” (ST, 131) made by the legislative power would have to be more than merely executed by the executive (Myers 1988, 222–25). Instead, because “the extraordinary is an ordinary part of politics” (Fatovic 2004b, 282), a power must exist that is not limited by the ordinary rule of law (Thomas, 2000, 538), capable of responding to those “accidents and necessities” that are coeval with political life (ST, 160). Although correcting the perception that Locke’s constitutionalism was hopelessly na¨ıve insofar as it failed to appreciate and thus respond to unforeseen exigencies, these accounts still tend to lend support to the more important charge: that the founders of liberal constitutionalism did not sufficiently appreciate the dangers of executive power. Although recognizing that his constitutional theory made room for prerogative, these same scholars too often portray Locke as not having recognized the intractable difficulties in constraining its “extra-constitutionality.” Zvesper (1984), for instance, claims Locke is “open to the charge that he was . . . too optimistic” (62). Reflecting this optimistic Locke, Fatovic (2004a) characterizes Locke as having “taught that it is possible to pursue legitimate

210

May 2007

ends through unauthorized means without sacrificing morality on the altar of necessity, as long as executives committed to the substantive principles of natural law preside over this delicate process” (295; also see, e.g., Tarlton 2004, 261; but see Mansfield 1989, 181–211). In both the United States and, even more dramatically, in other countries, the twentieth-century expansion of executive power over and against legislative constitutionalism on what some would call that very same “altar of necessity” would seem to relegate Locke’s optimistic notions of a safe, though discretionary, executive to obsolescence (cf. Lobel 1989). Taken as an optimistic account of the compatibility of a prerogative power limited only by a concern for the public good and a constitutional order that otherwise refuses its participants discretionary, because potentially arbitrary, power, Locke’s theory would appear to have nothing to teach us regarding why various peoples throughout the world, who Locke calls the “umpires” of the claims of prerogative (ST, 242), would have submitted to the overweening expansion of executive power beyond its rightful constitutional place in the twentieth century. Such a conclusion seems further supported by the scholarly consensus that Locke’s Second Treatise characterizes the people of his time as having reached an age of political maturity within which they will no longer accept the paternalistic claims to prerogative they accepted in their pre-political past (see, e.g., Resnick 1984; Waldron 1989). If Locke found that the seventeenth-century English people had reached a stage in history after which they would no longer accept excessive claims to prerogative, how could Locke possibly teach us something in the present about why peoples persist in accepting, or at least not rejecting, such claims? This paper argues that Locke’s Second Treatise is far more aware of the dangers of executive prerogative than the more optimistic accounts in the scholarship have appreciated and thus that Locke may be surprisingly pessimistic about the permanent sustenance of legislative constitutionalism. Such pessimism stems from Locke’s recognition that the people, although they have advanced beyond their simplistic trust in kingly “father-figures” who would look out for their good, still remain far too passive for the vigilance essential to “umpire” well the necessity of executive action outside the laws. To some degree, Locke recognizes that such passivity may actually result from the relatively apolitical concerns of liberalism itself: they are content to allow an executive to act with a significant degree of discretion outside the laws so long as those actions do not interfere with their immediate interests in security and prosperity. Moreover, although scholars are right in finding that political and economic development has constrained the kind of prerogative Locke describes in his political anthropology, they have insufficiently appreciated the extent to which that same development provides new opportunities to the wily executive intent on power beyond that which the legislative constitution would seem to allow. Finally, understanding Locke’s pessimism regarding popular vigilance casts into new light his argument for a legislative

American Political Science Review

constitutionalism based on fundamental laws that establish both a clear separation of powers and a set of constraints on governmental power, that is, a Bill of Rights. Such fundamental laws provide legislators with the constitutional “signals” by which they can alert the otherwise slumbering people about an executive intent on usurpation and, potentially, tyranny.

PRIMITIVE PREROGATIVE AND THE HISTORICAL DEVELOPMENT OF CONSTITUTIONALISM Much of the reason that Locke has been taken to be optimistic regarding the compatibility of the “extraconstitutional” executive with the otherwise limiting constitutional frame stems from the assumption that Locke finds “the resistance of the people” to be a “significant restraint on the exercise of executive prerogative” (Josephson 2002, 238). Although it is clearly true as a matter of normative principle that Locke advocates popular resistance to executives claiming prerogative even as the action is to the “hurt of the people” (ST, 161), this right of resistance does not guarantee its reality. The equation of this normative right of resistance with its political reality seems essentially to stem from an underlying second claim advanced by Locke scholars: Locke finds that the people have advanced beyond the primitive age of patriarchic trust in kingly rule to a political maturity “when they are in complete control of their rational faculties and can make full use of their freedom” (Resnick 1984, 10–11). According to this view, Locke’s historicist account of the people’s political maturation allows him to grant a piece of Filmer’s evidence without accepting Filmer’s argument. Though the people might once have consented to a monarchic form of government which was “simple, and most obvious,” to them then (ST, 107), such does not prove that they would or should do so in the present (see, e.g., Schochet 1969, 92; Grant 1988, 50). This last point, however, raises two distinct, although often related, manners in which scholars have treated Locke’s understanding of the relation between the historical reality of monarchies and his theory of popular consent. According to one view, by a process of both political maturation and “formal political institutionalization,” the “inchoate patriarchal authority” recedes into history, in a sense proving Filmer’s views merely antiquated (Waldron 1989, 9). According to a second view, constitutionalism and the social contract theory from which it springs provide the people with a moral template by which they rationally can free themselves from the obligations of antiquity, but does not necessarily follow from historical development itself (see, e.g., McClure 1996, 119). Although neither of these views necessarily contradicts one another—–in fact, they are often treated as complementary parts of the same argument—–the second view makes room for both the necessity of an education in political rationality and for the possibility of its failure (Tarcov 1981).2 2 Tarcov implies that it is precisely the gap between the people’s need for political education and its potential for failure that makes

Vol. 101, No. 2

Insofar as there could be universal implications in Locke’s argument beyond his accounts of the English experience, his suggestions regarding the historical development of legislative constitutionalism may teach us something important about the contemporary stresses on constitutional models of government. But, so long as we assume his historical account reveals that political development precludes governments that are mostly prerogative, his suggestions are much less universal and far more particularized to the English experience. Why, if the people adopt constitutional models of government as a historical result of political maturation and institutionalization, have they sometimes consented to their suspension in seemingly much more politically mature and institutionalized Western democracies? We can see why those societies much closer to the “negligent and unforeseeing Innocence of their first Ages” (ST, 111) would succumb to patriarchal governments that are “almost all Prerogative” (ST, 162); it is more difficult to see why those societies would that recognized, at one point, that they “could never be safe nor at rest, nor think themselves in Civil Society, till the Legislature was placed in collective Bodies of Men, call them Senate, Parliament, or what you please.” These societies seem to have recognized that only in such a state can “every single person [be] subject, equally with the other meanest Men, to those Laws, which he himself, as part of the Legislative had established.” And that only in such a state must one not worry about an executive power that claims exemption from the laws, based on prerogative: “nor could any one, by his own Authority, avoid the force of the Law, when once made, nor by any pretense of Superiority, plead exemption” (ST, 94). Yet, we have seen in various Western democracies a prerogative power develop that implicitly or, even explicitly (see the interview between Richard Nixon and David Frost, New York Times May 22, 1977), claims essentially such exemption. As we will see, this is not to say that some form of discretionary executive power capable of action outside of and even against the laws is not necessary; for Locke, however, to control its potential for arbitrariness, such a power must always be held accountable for its actions. Although Locke’s previous statement would reflect the proper political views of an educated, rational, politically mature people, the means by which they arrived at this position suggests not so much a proactive position stemming from their newfound conception of their rightful political freedom as a reactive position stemming from the abuse perpetrated on them by their theretofore trustworthy monarch. Locke claims what might be called “elite cueing” so necessary. In matters of prerogative, “the few who can foresee” must teach them “whether the oppression of a few is such that ‘the Precedent, and Consequences’ seem to threaten all” (214). See, also, Tarcov 1984. To some degree, this argument follows this same model, although I will place more emphasis on how the constitutional frame with fundamental laws can be used as a signal which the legislative elite can use to show the people the nonconstitutional, and hence dangerous, designs of their executive. For an argument that also emphasizes the relation between executive power and a body of fundamental laws distinct from normal legislation, see Ward 2005.

211

Locke’s Second Treatise

they sought “to find out ways to restrain the Exorbitances, and prevent the Abuses of that Power which they having intrusted in another’s hands only for their own good, they found was made use of to hurt them” (ST, 111). Where other Whigs of Locke’s time emphasized to a far greater extent the historical development by which the growth of society necessitated “greater forms of government” than primitive monarchies, and the people, as a whole, came to recognize the importance of “written constitutions” (Ashcraft 1986, 216–17),3 Locke’s account singularly emphasizes the reactive nature of such developments: each time his political anthropology mentions the development of constitutionalism, he describes it as following from kingly abuse (see, exhaustively, ST, 94, 107, 111, 162, 166). As such, their reaction is not essentially political. Locke never tells us that the people limited prerogative because they came to feel themselves entitled to selfrule—–an argument one might find in Locke’s much more stridently republican contemporary, Algernon Sidney. Or, more fundamentally, he never tells us that the limitations of prerogative emerge from a people who have become more politically aware. Their movement toward constitutionalism does not occur because they realize the importance of constitutions. Instead, only when the people felt oppressed did they decide to limit what they were otherwise content to leave alone. They were content to continue under the rule of one, so long as that rule did not abuse them. Thus, the people’s constitutional reaction to kingly abuse does not necessarily indicate a fundamental and irreversible political disposition toward what Locke characterizes as the healthy opinion that their security exists only insofar as their rulers do not claim freedom from the same laws by which they must abide (ST, 91). Of course, it also does not necessarily indicate its opposite: the people’s embrace of constitutionalism as a response to abusive kings would, of course, be enough if Locke also suggests, or at least fails to contradict, the conclusion that the people remain permanently within this new disposition. As will be argued in the third section, however, Locke’s chapter on prerogative does contradict this conclusion.

LIBERALISM AND KINGLY RULE Besides establishing a normative distinction between what existed in the past and what should exist in the present, Locke’s political anthropology also aims to reinterpret these primitive monarchies in the terms of his liberal theory of consent (see, e.g., Schochet 1969; Tarlton 2004, 258). The people sought “the rule of one Man” because “where it was exercised with Care and Skill, with Affection and Love to those under it” it “was sufficient to procure and preserve to Men all the 3 These quotations come from primary Whig sources cited by Ashcraft (1986). It should be noted that Ashcraft does not make the distinction made here. He implicitly includes Locke among those Whigs who identified the dissatisfaction with monarchy with historical development, not with kingly abuse; although, he never cites Locke himself in this context.

212

May 2007

Political Happiness they sought for, in Society” (ST, 107). These primitive monarchies provide such political happiness because these “nursing Fathers tender and carefull of the publick weale” (ST, 110), Locke argues, were more than sufficient to fulfill the legitimate consensual basis on which human beings enter into society in the first place: “the great and chief end . . . of Men’s uniting into Commonwealths . . . the Preservation of their Property” (ST, 124). This was, in the first place, the case because the insecurity of premodern life caused the people to seek a government which resembled a military command more than it did a political society. They chose “the wisest and bravest Man to conduct them in their Wars, and lead them out against their Enemies, and in this chiefly be their ruler” (ST, 107). Although a vital component of the primitive attraction to kingly rule, however, Locke reveals that this is not the whole of their attraction. Again, at least partly because of the preponderance of historical evidence showing popular deference to kingly authority on which an absolutist like Filmer could draw, Locke also includes such deference in his originalist theory of consent: At first . . . some one good and excellent Man, having got a Preheminency amongst the rest, had this Deference paid to his Goodness and Vertue, as to a kind of Natural Authority, that the Chief Rule, with Arbitration of their differences, by a tacit Consent, devolved into his hands, without any other caution, but the assurance they had of his Uprightness and Wisdom. (ST, VII, 94)

Locke reinterprets the significance of primitive deference to comport with his consensual framework. In fact, the prior passage goes so far as to make kingly men the essential agents of societal formation. The ease with which Locke succeeds in this reinterpretation may, however, indicate something more troubling about the cohesion of his liberal-constitutional order. These two components, liberalism and constitutionalism, are typically identified as in essential and inextricable relation to each other in Locke’s theory. For instance, in describing Locke’s liberalism, Mehta (1992) identifies its “commitment to constitutional government” and its “emphasis on the rule of law” (1; see also, e.g., Faulkner 2001, 16). After all, the passage already quoted, along with numerous others (see, e.g., ST, 212), would show that the people are never fully in political society and thus secure in their lives, liberties, and properties unless there is a legislature that makes laws that apply to all equally. Thus, this assumption of an essential relation between liberalism, that is, the government aims to secure only the people’s lives, liberties, and properties (Parry 1964, 168), and constitutionalism, that is, the government acts according to established, standing laws that apply to all equally, is well founded. Moreover, constitutionalism seems to demand the supremacy of the legislative power (see next). Locke’s political anthropology suggests, however, that the essentiality of this relation as a matter of normative principle does not also guarantee it as a matter of political reality. Instead, even though their trust in

American Political Science Review

such kings created the constant potential for abuse—–in fact, even the seventeenth-century British, who seem far from the primitive peoples Locke has in mind, returned to a line of Kings who had already abused them once (ST, 223)—–the people did so because, as the anthropology also reveals, their very entrance into politics arises not so much from any specifically political concern as from a calculation “that a government is necessary to adjudicate conflicts of interest and enforce judgments” (Parry 1964, 169; see also Zvesper 1984, 60–61). Because Locke claims their political concerns both are and should be fundamentally “a-political” (Faulkner 2001), there is no spirited resistance which would prevent them from trusting in the good judgment of their kings. Where Aristotle characterizes human beings as having entered into society to complete themselves (Politics 1253a, 1–18) and thus provides the people a spirited republican argument with which they can insist, as a matter of justice, on ruling themselves, Locke’s liberalism provides no such argument. This is not to say that Locke’s constitutionalism must be based on republicanism: the Whig insistence upon the rule of law is analytically distinct from the democratic insistence on self-rule; although Ashcraft (1986) shows well that these are more closely connected than had been previously thought (for prior thought on this question, see, e.g., MacPherson 1962). Nonetheless, the fact that the people’s liberally conceived “political happiness” can be just as easily procured and preserved by kingly rule as by constitutionalism raises troubling questions for the sustenance of constitutionalism. As Schochet (1969) shows, conceived merely as the preservation of their lives, liberty, and property, liberalism points as much to monarchy, even to absolute monarchy so long as it is caring, as to any other form of government (but see Schumpeter 1952, 297; Pateman 1979, 164). Adjudicating conflicts of interest and enforcing judgments can be done as well, if not better, by one virtuous man without any law to hinder his judgment as by lawmaking assemblies. And, in some ways, given the manifold threats to security which are coeval with human life, the discretionary capability of a wise and powerful ruler may make it seem the best means by which to insure security. This, at least, was Hobbes’ conclusion in The Leviathan. Although Locke is certainly intent on a constitutional regime in which power is checked by the rule of law, he also realizes that a certain crude understanding of the ends of his regime would seem not to necessitate such. The people must make an educated rational calculation concerning the long-term goodness of a constitutional order that controls the behavior of those in power. Moreover, given the continued need for some sort of discretionary executive even within the constitutional order, they cannot make this calculation but once and then rest secure within a government of law. In part, precisely if they are liberal, unlimited prerogative will exist as a constant possibility. Given that one can safely assume that those in power will seek to exploit this connection—–for instance, American presidents speak almost exclusively in terms of security as they justify their “extra-constitutional” expansion of power—–Locke’s constitutional project requires either

Vol. 101, No. 2

that the people have truly achieved political maturity (a position that would mark him in the light of history as politically na¨ıve even if consistent) or that the constitutional frame itself might provide the cues by which elites can alert the people to executive usurpation and tyranny. Pateman (1979) arrives at a similar conclusion concerning the potential connection between liberalism, on the one hand, and unlimited prerogative, on the other, when she raises the possibility that the “triumph of possessive individualism” makes “a contemporary version of Hobbes’ absolute sovereign . . . not inconceivable.” Citing Gauthier (1977), she argues that such a condition could emerge from the radically selfish behavior that follows from liberalism’s emphasis on individualism: to avoid the war of “all against all,” the Hobbist sovereign would be instituted (166; cf. Zvesper 1984, 62). Jefferson, in his Notes on the State of Virginia, also raises concerns about liberalism’s emphasis: the people “will forget themselves, but in the sole faculty of making money, and will never think of uniting to effect a due respect for their rights”; such forgetfulness, Jefferson continues, will make our shackles “heavier and heavier, till our rights shall revive or expire in a convulsion” (161). Such forgetting may be the principal cause for Jefferson’s suggestion to Madison, in a letter cited by Tocqueville (2000), that “‘[the tyranny] of the executive will come in its turn, but it will be at a remote period”’ (249). Both Jefferson and Pateman have identified potentially problematic aspects of liberalism, its tendency to break down community-oriented behavior and its interest in material security and prosperity over and against political concerns, which contribute to the expansion of a Hobbesian executive, governing with seemingly unlimited prerogative. The question to which we now return, however, is the extent to which Locke anticipated and worried about these same tendencies and, if so, the extent to which he provided a solution for them.

MODERN PREROGATIVE? Many of the arguments concerning Locke’s optimism regarding the compatibility of his “constitutionalized” prerogative and the limiting constitutional frame stem from the argument that Locke, and the rest of the radical Whigs, thought the modern world had significantly changed the political landscape (again see, e.g., Ashcraft 1986, 216–17). Both economic and political development had caused the primitive patriarchal prerogative of Locke’s political anthropology to recede into history (see, e.g., Waldron 1989). Although it is clearly true that the political dynamics of modern society significantly constrain the possibility of the people giving power to a patriarchal king based on their opinion of his “goodness and Vertue,” Locke’s Second Treatise also suggests at certain points that the nature of modern society introduces new opportunities for prerogative power. That is, although scholars are right to recognize that the possibility of the primitive monarchy identified in his political anthropology has disappeared,

213

Locke’s Second Treatise

they have insufficiently appreciated the extent to which Locke shows that political and economic development presents new opportunities even as it takes others away. Corresponding to these new opportunities is Locke’s implicit presentation of a surprising degree of popular apathy regarding the exercise of the prerogative power, revealed most by his discussion of it in the chapter with the same name. To see the new prerogative opportunities that economic and political development present to the executive, we do best to start from an observation of Algernon Sidney’s. “Our law,” Sidney (1990) writes, “is so ambiguous, perplexed, and intricate that ‘tis hard to know when ‘tis broken. In all the publick contests we have had, men of good judgment and integrity have follow’d both parties” (525). Such an observation suggests that political development may create enough ambiguity and complexity as to make it difficult to determine when prerogative has been exercised and when it has not, and more difficult still would be the determination that prerogative, when exercised, in fact properly conduces to the people’s good and not their harm. Perhaps, given this complexity, it would be enough merely for the executive to claim that he has acted with a view to the people’s good. Albeit the necessity to claim it is for the public good would still be a departure from the absolutist rhetoric the British monarchs often chose to use (see, e.g., Burgess 1996), but a departure that does not yet clearly establish the permanent historical ascendancy of constitutionalism. Instead, in Sidney’s presentation, the complexity and ambiguity of the law present the wily executive with the opportunity, if he chooses to exercise it, to act with a significant degree of discretion within the law’s extensive grey area. It is precisely this same ambiguity and complexity in the law which continue to make it so difficult to judge the exercise of discretionary power by the executive and, if exercised, the ends to which such exercise pointed. For instance, did the Bush administration’s authorization of wiretaps violate existing law or the Constitution itself? Many have claimed that it did violate existing law, and thus constituted an executive usurpation of constitutional powers; but the intricacy and complexity of the law make it extraordinarily difficult for the public, even if it were so disposed, adequately to judge the question. The density of today’s even more complex economic and political world creates a large grey area within which executives are free to act with little obstruction. Cooper (2005) shows that the Bush administration has used presidential signing statements “to significantly reposition and strengthen the powers of the presidency relative to Congress,” even as “few in Congress, the media, or the scholarly community are aware that anything has happened at all” (516). Moreover, in The Second Treatise, so far from economic development precluding prerogative, the entrance of a full-bodied notion of “constitutionalized” prerogative as a response to the political flux to which the legislative is often not a sufficient response occurs first in the context of economic development. Prerogative is first fully defined and justified as a rational correction of legislative misrepresentation caused by

214

May 2007

the fact that “Things of this World are in so constant a Flux, that nothing remains long in the same State” causing “People, Riches, Trade” and “Power” to “change their stations” (ST, 157). This economic change and development creates a need for a discretionary prerogative power capable of providing “for the publick good, in such Cases, which depending upon unforeseen and uncertain Occurrences, certain and unalterable Laws could not safely direct.” In this case, the executive exercises a discretionary power to regulate the number of members of Parliament in proportion to “true reason” rather than “old custom.” Such rectification “which succession of time had insensibly, as well as inevitably introduced . . . cannot miss the Consent and Approbation of the Community” (ST, 158; see Ashcraft 1986, 238–39). As Ashcraft (1986) rightly notes, historically such an argument surely would have exposed “the insincerity of the Whigs’ critics, none of whom was pressing Charles II or James II to institute the fair and equal system of representation” even as they criticized the Whigs for defending Parliament and its numerous rotten boroughs as the true representative of popular sovereignty (239). But the argument does not seem simply to expose the insincerity of Locke’s opponents; it also indicates something permanently true about prerogative power. Even if, as we will see Locke desires, a politically mature people can choose to establish “certain and unalterable Laws” and place primary power in the legislature, the political flux inherent in the modern world may create the constant possibility of, and perhaps even the need for, a prerogative power particularly suited to adjust to this flux. Locke perceives that the ability of the prerogative power to adjust to the political flux inherent in modern economies guarantees its persistence, in at least one form, even in a primarily legislative and constitutional state. In fact, in his chapter on property, immediately after his claim “that the increase of lands and the right imploying of them is the great art of government,” Locke claims that the . . . Prince who shall be so wise and godlike as by established laws of liberty to secure protection and incouragement to the honest industry of Mankind against the oppression of power and narrownesse of Party will quickly be too hard for his neighbours. (ST, 42)4

That is, modern economies present opportunities to the prince for the security of his power, and perhaps also the extension of his power, if he chooses to encourage their growth. If the prince simply establishes laws by which his subjects can live and avoids the economic oppression in which princes of the past had all too often engaged, his power will be that much more secure against all challengers. As we will see, to the extent that 4 This passage is strikingly reminiscent of a similar passage one finds in Machiavelli’s Prince. Advising the prince, Machiavelli (1998) writes: “He should inspire his citizens to follow their pursuits quietly, in trade and in agriculture and in every other pursuit of men, so that one person does not fear to adorn his possessions for fear that they be taken away from him, and another to open up a trade for fear of taxes” (91).

American Political Science Review

he succeeds in creating and establishing liberal laws by which his subjects will live, such a prince may be able, at the same time, to retain a significant degree of prerogative beyond what we, and even Locke, would view as constitutional. In other words, even as such a prince succeeds, it is difficult to see why he would be clearly different from the absolute monarchs who are lambasted by Locke later in The Second Treatise: For this [establishing laws] is no more than what every Man who loves his own Power, Profit, or Greatness, may, and naturally must do, keep those animals from hurting or destroying one another who labour and drudge only for his Pleasure and Advantage, and so are taken care of, not out of any Love the Master has for them, but Love of himself, and the profit they bring him. (93)

Although the phrasing of this passage seems to point to the princes of the past who demanded from his subjects extraordinary taxes and all sorts of other things that would follow from viewing them as existing for their “Pleasure and Advantage,” the successful modern prince mentioned by Locke could seemingly still remain outside “the restraint of Laws.” And, so, the successful modern prince is still subject to the criticism that follows the passage just mentioned: he retains “all the Liberty of the State of Nature” even as the rest have quit “the State of Nature” and “entered into Society” (ST, 93). Modern economics does not preclude the Hobbesian prince—–he must simply become wily enough to realize that his real power lies in subjects who have the freedom to enlarge their properties and cultivate their industries. In fact, this is at least one way to read Hobbes’ own argument (see, e.g., Holmes 1995, 92–94).

FORMS OF PREROGATIVE AND POPULAR APATHY Conceived as the right to act “for the good of the Society, in many Cases, where the municipal Law has given no direction, till the Legislative can conveniently be Assembled to provide for it” (ST, 159), executive power is merely the necessary corrective to the inefficiencies inherent in a legislature. Conceived as the discretionary power to preserve the public good over and against the laws when “‘tis fit that the Laws themselves should in come Cases give way to the Executive Power,” the executive power is merely the constitutional solution to the insufficiencies of constitutionalism. Its actions would properly seek only the restoration of the rule of law and parliamentary sovereignty. It is this “constitutionalized” prerogative which scholars have drawn out recently over and against the prior tendency to see Locke’s conception of governmental power as simply rule-bound and legislative (see, e.g., Pasquino 1998; Faulkner 2001, 21). Locke’s chapter on prerogative, however, moves beyond this toward a prerogative that James Madison once claimed reveals Locke’s reason as “clouded by the royalism of the Englishman” (Letters of Pacificus and Helvidius, 56) and, more recently, Scigliano (1989) claims Locke could not possibly have meant—–he was forced “to dis-

Vol. 101, No. 2

guise his meaning in order to protect himself” because “it was dangerous to question the royal prerogative” (243; cf. Rahe 1992, 474). To explain away the rest of this chapter, however, as the product either of royalist confusion or of esoteric design seems somehow insufficient. Although Madison’s claim seems simply to reveal rhetorical reductionism, Scigliano’s explanation is also insufficient because Locke’s proposal of a right of violent resistance would have been much more controversial and dangerous at the time—–yet he advanced this explicitly.5 So, what exactly is Locke up to in this chapter? In the first place, Locke’s treatment of prerogative succeeds in doing what Ashcraft (1986) characterizes as an essential element of Locke’s strategy: to use the principles of natural law to override the controversy over sovereignty between Parliament and the King by showing that it is unacceptable for either to act contrary to the proper ends of government and, conversely, acceptable for either to act to achieve those ends.6 Conceding this, however, allows prerogative to extend beyond this constitutional notion of executive discretion. It implies that prerogative can become more than simply those actions taken for the survival of constitutionalism and the restoration of the supremacy of the legislative. This concession causes Locke to move in this chapter from normative advocacy to political analysis. The question becomes not what prerogative powers should the executive rightfully possess but what powers Locke’s own principles of natural law and some form of popular sovereignty allow him to wield. His first conclusion is that, even if they have accepted some part of Locke’s principles, the people will not likely insist on constitutionalism as such. In an assertion of prerogative outside of, and perhaps even against (ST, 160), the existing laws, which Locke calls at one point “the power of doing publick good without a Rule” (ST, 166), the people, Locke writes, “are very seldom, or never scrupulous, or nice in the point: they are far from examining Prerogative, whilst it is in any tolerable degree imploy’d for the use it was meant” (ST, 161). Their disposition is to ask simply whether or not “the tendency of the exercise of such Prerogative” was to their own “good or hurt.” That is, Locke implies that they do not ask what might be characterized as the proper constitutional question by which a people should judge executive prerogative: whether such action outside their constitution was necessary for its survival (see, e.g., Kleinerman 2005, 806). Such popular apathy toward constitutional forms as such thus permits “their Rulers, to do several things of their own free choice, where the Law was silent, and sometimes too against the direct Letter of the Law” (ST, 164; italics mine; see, also, 160).

5 I cannot take credit for this insight. It was a very good point advanced by one of the anonymous reviewers. 6 Ashcraft primarily make the former argument: it is unacceptable for either to act contrary to natural law. See, again, Fatovic 2004a for the latter argument that it is acceptable for the executive to act outside legislative law to fulfill the proper ends of government.

215

Locke’s Second Treatise

Such a conclusion regarding Locke’s analysis of the people’s disposition toward seemingly wellintentioned, though unconstitutional, exercises of prerogative is consonant with Locke’s own political experience with first Charles II and then James II. In 1672, Charles II exercised his royal prerogative in the Act of Indulgence, granting an indulgence to religious Nonconformists, and suspending the enforcement of penal laws against both Dissenters and Catholics. And, although Ashcraft (1986) claims a few political radicals “were reluctant to concede that the king had the constitutional power to suspend the law through an act of his arbitrary will, even when the consequences of such an action carried obvious political benefits for themselves,” “most Dissenters were willing to accept the relief from persecution the law offered them on straightforward pragmatic grounds” (35). Again in 1685, when James II claimed his royal prerogative and granted indulgence to various religions, including Catholics, to the extent that there was disagreement among the political radicals, it centered more on the popish plot that they thought this act revealed than on the nonconstitutional nature of the act itself (478–88). In fact, some prominent Whigs went so far as to argue “both for the right of the Dissenters to accept the Indulgence, and for the latter’s legality as an exercise of prerogative” (480; italics mine). Their acceptance stemmed from more than simple acquiescence because of the benefits; men otherwise committed to the supremacy of a sovereign Parliament were willing to abandon this commitment, even in theory, in the face of a prerogative whose intentions they appreciated. As a man of some amount of political astuteness who would have been very aware of both these controversies and the reaction to them, this reading of Locke then seems fully consonant with what would have been Locke’s own experiences with even those people who should have been more suspicious of these kinds of assertions of kingly authority. That even the more politically radical of Locke’s time were all-too-willing to accept well-intentioned, though unconstitutional, prerogative, casts some light on our own time and the people’s continuing willingness to accept the same such behavior from their executives. So long as they think well of the executive, they are likely to accept what he does outside and even against the laws for their benefit. This, however, means “That the Reigns of good Princes have been always most dangerous to the Liberties of their People” (ST, 166). The problem becomes that the prince whom the people enable to act outside the laws for their benefit is used by his successors, “managing the Government with different Thoughts,” to “draw the Actions of those good rulers into Precedent” (ST, 166). So, although it is true that Locke shows that one can succeed in fulfilling the purpose of government outside of the typical laws through wise and good princes, constitutionalism seems a more dependable method by which to achieve a longlasting protection of liberty. A constitutional order in which rulers are understood to be as subject to the laws as the people is in the people’s long-term interests because it frees them from arbitrary governmental

216

May 2007

action.7 The difficulty is that constitutionalism depends on popular attachment, over and against the claims of any prince, no matter how seemingly “God-like,” and this seems sorely lacking in the people’s reaction to unconstitutional prerogative. Locke clearly thinks that, though they should, the people do not care and thus do not judge well whether the prerogative power arises from constitutional necessity, that is, from those powers that must be assumed because of inefficiencies in the legislative power or insufficiencies in the law itself. In other words, there is a tension between the people’s true interest in a constitutional order that secures their rights, especially their right to be free of arbitrary government, and their short-sighted willingness to accept, or at least fail to contest, unconstitutional exercises of prerogative. As we will see, although Locke thinks such apathy toward constitutionalism inherent in the nature of peoples, he points toward an amelioration of this tendency through a “fundamental” constitution whose breach would allow legislators, and “busie” heads of all sorts, to signal to the people a design that is not wellintentioned. The rest of this passage about “God-like Princes” begins to point to precisely such a solution insofar as Locke thinks the people able at least to “recover their original Right, and get that [rightful assertions of power to do whatever the prince pleases] to be declared not to be Prerogative, which truly never was so” (ST, 166). When Richard Nixon claimed that “when the President does it, that means it is not illegal,” based on the example of Lincoln, the people were, at least, unwilling to accept such brazen assertions of rightfully unconstitutional activity (New York Times, 5/22/1977). In this case, Locke’s political realism about the people’s all-too-lacking attachment to constitutionalism as such allows him to advance a subsidiary point regarding prerogative. Although constitutionally proper only when exercised out of necessity, nonconstitutional prerogative, having been exercised by a well-respected prince, does not create a rightful precedent by which another prince can legitimate his actions. Although the legislators and other “busie heads” will tend to claim that all assumptions of power beyond what is properly envisioned by the laws evinces a design of, at the least, usurpation, if not tyranny itself (ST, 198), the prior question one must ask is: how well do the people judge the intentions of their prince as they assume powers outside of those envisioned by the laws? In other words, if they do not care whether the powers are constitutionally necessary, do they at least care whether the powers are, in fact, well intentioned? On this point, even allowing for what might be characterized as his conservative rhetorical interest in downplaying the people’s revolutionary tendencies given his doctrine of a right of revolutionary resistance (Seliger 1968, 320), Locke still remains strikingly pessimistic about the people’s interest in questioning executive intent in his assumption of power. In the first place, 7 Though outside the laws, Locke’s conception of executive can be said to remain within the laws insofar as there is a system of accountability by which an unnecessary breach of the laws can be punished.

American Political Science Review

Locke argues that, in the history of England, so long as it “’twas visible” that “the main of their Conduct tended to nothing but the care of the publick,” the English public did not contest prerogative (ST, 165). But such visibility would appear to require only that there be nothing “manifestly against” the public good (ST, 161), or, even less, that what does seem manifestly against the public good should appear to the public only a “humane frailty or mistake” that does not yet prove that the main conduct of their action is against the public good (ST, 165). In short, Locke comes dangerously close to the conclusion, as a matter of political analysis and not of normative principle, that so long as the executive maintains the appearance of seeking the public good, regardless of the reality, the people will not contest his prerogative. In fact, it is this inability of his opponents to make “visible” to the people the executive’s true designs that makes the constitutional frame so important. For instance, with a Constitution in the United States, if the American president claims a prerogative power not to allow Congress to meet, even as there is a law by which Congress must meet every year, it is much easier for the legislators to show the president’s tyrannical designs.8 Or, if the president systematically violates the rights of some within a society, though there is a Bill of Rights by which such actions are unlawful, the president’s malfeasance can be more easily revealed. In fact, as one considers the history of this period in light of Locke’s arguments regarding prerogative power in the Second Treatise, one might conclude, as Ashcraft (1986) does at one point, that Locke’s own experience with the English people during the 1680s and before suggests that “much of the confidence with which he speaks of their not ‘stirring’ themselves is born out of a reflection upon the experience . . . to convince the people otherwise” (309). Dunn (1967) echoes Ashcraft’s conclusion when he claims in a footnote: “The problem as Locke sees it is not that men are not prone to accept legitimate hierarchies, but that they are all too prone to accept illegitimate ones” (181). In this context, Locke can be interpreted to mean at least some of what he writes in his final chapter about the people’s attitude toward the improper exercise of power by their rulers: For till the mischief be grown general, and the ill designs of the Rulers become visible, or their attempts sensible to the greater part, the People, who are more disposed to suffer, than right themselves by Resistance, are not apt to stir. The examples of particular Injustice, or Oppression of here and there an unfortunate Man, moves them not. (ST, 230)

Or Locke suggests “Great mistakes in the ruling part, many wrong and inconvenient Laws, and the slips of humane frailty will be born by the People, without mutiny or murmur” (ST, 225). Instead of being by nature revolutionary and prone to irrational resistance, 8 At certain points in The Second Treatise, Locke raises the possibility of establishing “settled periods” for the convening of Parliament (see, e.g., ST, 156; see below).

Vol. 101, No. 2

as many of Locke’s Tory opponents suggested at the time, the people are, by nature, rather apathetic. Locke writes: “People are not so easily got out of their old Forms, as some are apt to suggest. They are hardly to be prevailed with to amend the acknowledg’d Faults, in the Frame they have been accustom’d to” (ST, 223). Again, although there is surely an element of rhetorical excess in these arguments given what would have been perceived to be the dangers of Locke’s revolutionary right of resistance (see, e.g., ST, 224), Locke’s emphasis on the people’s passivity goes further than would seem necessary to quiet these fears and, to reiterate, would have been in keeping with his own experience with the English people during the 1680s. That Locke has his own experience with the English people in mind as he writes these passages is suggested by the concluding sentence of the paragraph just mentioned: “Whatever provocations have made the Crown be taken from some of our Princes heads, they never carried the People so far, as to place it another Line” (ST, 223). This relative apathy toward their rulers’ intentions stems from what Locke characterizes, with some amount of irony, as their “sense of rational Creatures.” Although Waldron (1989) links this sense to their political virtue (21), Locke actually characterizes this sense as particularly limited: it involves only an inability on the part of the people “to think of things . . . otherwise than as they find and feel them” (ST, 230). Although this surely means that the people, acting as a majority, will resist a ruler whose “illegal Acts have extended to the Majority” of them, it does not guarantee action prior to that. The vast majority of people, Locke implies, do not think much beyond that which immediately touches them. For this reason, they revolt only when they feel the oppression. Feeling is, however, one of the more immediate and limited senses. If the vast majority of people could think of things as they see them—–to say nothing of foreseeing—–they could conceivably imagine what might be in store for them and react preemptively. Because they cannot sense beyond what they feel, they are not moved by the occasional or even the frequent abuses of prerogative. For Locke, then, the problem is not that the majority will not be moved to act if they feel directly the oppression (although then it might be too late, see Tarcov 1981), but both that they will not be moved by executive usurpation of properly legislative powers and that they will not be moved by the unnecessary abuse of the rights of a minority, even a large minority, within a society. This limited sense allows a ruler who knows how to make it appear to the people—–to make them “see and feel”—–that he “really means” their good convincingly to explain away the appearance of oppression or usurpation (ST, 209). This deception becomes impossible if the people feel themselves being oppressed directly—–this is why the people will revolt if oppression extends to the majority—–but it becomes far easier when it is a mere contest between the “busie head[s],” who may rightly claim usurpation and tyranny and the ruler who claims, convincingly but untruthfully, that he rules in their best interest. Because the “busie head[s]”

217

Locke’s Second Treatise

must rely on the people’s sense of sight, a sense within which the people are far less comfortable, they are far more difficult to convince and far more susceptible to the prince’s manipulation. In fact, given the people’s relative apathy toward these matters, the prince need not engage in complicated manipulative machinations: the visibility of the ruler’s trustworthiness will come to sight mostly in his mere claim to be trustworthy.

THE CONSTITUTIONAL FRAME: MAKING TYRANNY VISIBLE At this point, one may rightly conclude a profound degree of pessimism in Locke’s argument regarding the long-term sustainability of legislative constitutionalism over and against a government that is “almost all Prerogative” (ST, 162), even, it seems, after economic and political development has occurred. Of course, such a claim must be moderated by the acknowledgment that Locke does remain hopeful that his liberal redefinition of politics can successfully rule out the kinds of rightfully patriarchal claims one associates with royalists like Filmer (see, e.g., Ryan 1971; cf. ST, 71). Or, as Scott (2000) argues, Locke does think that his Two Treatises might successfully “replace one political language with another” (557). The point is, however, that a wily prince, a description that Locke would probably not have applied to either Charles II or James II, can successfully use even this new redefinition of politics to extend his prerogative power. Although this would remain something of a success insofar as it requires the prince, at least, to give the appearance of seeking the public good (and one would think that there must be some connection between appearance and reality), it still remains the case that a large degree of “princely” prerogative does not fulfill Locke’s definition of the most secure form of civil society, one in which through a supreme legislative power “every single person became subject, equally with other the meanest Men, to those Laws, which he himself, as part of the Legislative had established” (ST, 94). In a properly designed constitution, the legislative power makes laws while the executive power judges by those “standing Laws how far offenses are to be punished” (ST, 88). The executive retains discretion only within the limits established by those standing laws. In certain cases, as we have already seen, such discretion might extend to acting outside or even against the standing laws for the public good; but, even in those cases where he does so, Locke suggests that a properly designed constitution should seek that the “Legislative” soon “be Assembled to provide for it” (ST, 159). As such, the executive is properly understood as a “standing power” that rectifies the insufficiencies and inefficiencies in “standing law” without becoming an extra-constitutional power simply “to do many things of choice, which the Laws do not prescribe” (ST, 160). Because the people are insufficiently attached to the proper notion of constitutionalism, however, they permit executives to act beyond their rightfully constitutional powers.

218

May 2007

By establishing Locke’s pessimism, however, we can now view his constitutionalism in a rather more revealing light. Precisely because the people are insufficiently attached to constitutionalism, Locke sees the need for “positive constitutions” to which the people can become attached in a manner similar to their attachment to their kings (ST, 40, 223). Because both the modern world and the people’s apathy create difficulties in knowing and responding when executives have acted beyond their rightful powers, one needs to create a constitutional frame within which executive actions that usurp legislative authority come to light as such and, as we will see, can be used by legislators to show the people such usurpation. Additionally, the statement of both governmental purpose and constraints that would also be contained in such a constitution, even perhaps in the form of a bill of rights, creates a framework within which executive abuse can be revealed. Such a need for a “positive” or, as Locke also calls it, an “original” constitution, explains some of Locke’s strange formulations in his section on the separation of powers. For instance, Locke has an extensive discussion of what it means for “the power of Assembling and Dismissing the Legislative” to be “placed in the Executive.” He attempts to show that such power does not establish “a superiority over it” but is instead “a Fiduciary Trust, placed in him, for the safety of the People.” But, he raises the possibility later in this same discussion that “the regulation of times for the Assembling and Sitting of the Legislative” could be “settled by the original Constitution.” If such is done, the power would not have “naturally fell into the hands of the Executive” (ST, 156). Writing immediately after a time in which the King had claimed a prerogative to prorogue Parliament and not to convene it again for an extended period of time, Locke must have understood the benefits that would have arisen from an “original Constitution” that specified when Parliament must meet. With such, the King’s refusal to allow Parliament to meet, despite the Constitution’s demand, might have been viewed by the people as contravening one of the “old Forms” to which they have become attached. In the case of the United States, as far as an executive might be able to go in acting outside and even against the constitutional order, one cannot imagine a president trying to prevent Congress from assembling at its constitutionally appointed time. As long as the American people remain sufficiently attached to the “old Form” represented by the Constitution, they would not abide by prerogative of the sort the English people allowed for an extended period of time in the 1680s. By having an “Original Constitution,” it becomes much easier for the legislators, or “busie heads” more generally, to point to something to prove the tyrannical designs of the executive. For instance, Locke writes: “What if the Executive power being possessed of the Force of the Commonwealth, shall make use of that force to hinder the meeting and acting of the Legislative, when the Original Constitution, or the publick Exigencies require it?” (ST, 155). If he does such, Locke claims the executive is “using Force upon the People without Authority” and thus puts himself in “a state

American Political Science Review

of War with the people, who have a right to reinstate their Legislative in the Exercise of their Power” (ST, 155). Such action, the reinstatement of their legislative, would depend upon the people’s believing the claim that a state of war exists. Locke points to possible ways in which the legislator could claim such. The first is that the original Constitution demands their meeting and the executive continues to prevent it; that is, “the Prince hinders the Legislative from assembling in its due time” (ST, 215). The second is that public exigencies demand their meeting and the executive disagrees. If the legislator must depend only on his claim that public exigencies and thus the public good require the meeting of the Legislative, he is going to have contend with what one must imagine will be the claim of the executive that the same public good requires that it not meet. Given the people’s propensity to trust executives who claim the public good unless manifest evidence proves otherwise, a situation in which there are merely contending claims would not promise successful persuasion. If the executive has opposed not just the claim of the legislator but the “original Constitution” itself, however, there is now much more manifest evidence with which the legislator can prove a state of war with the people.9 Although there might be constitutions that deviate from this and do not have settled periods within which to convene the legislative, such only proves that they have not been properly constituted. This same point applies to Locke’s more general discussion of the relation between the legislative and the executive. Properly speaking: When the Legislative hath put the Execution of the Laws, they make, into other hands, they have a power still to resume it out of those hands, when they find cause, and to punish for any mall-administration against the Laws. The same holds also in regards of the Federative Power, that and the Executive being both Ministerial and Subordinate to the Legislative, which as has been shew’d in a Constituted Common-wealth is the Supream. (ST, 153; italics mine)

This, of course, means that there are also improperly constituted commonwealths, including perhaps even Locke’s own post-Glorious Revolution England (which may also explain why Locke tends to be rather vague about how a properly constituted commonwealth would look).10 For instance, an improper constitution might have a “Supream Executive Power vested 9 Paradoxically, as one of the anonymous reviewers noted, by restricting the power of the executive’s prerogative through an “original” constitution, it might very well become the case that executive action outside the laws becomes more frequent. This would not seem to bother Locke because, when truly necessary, he has no desire to restrict such actions. Instead, a constitution profitably creates a point of contestation between the executive and the legislature such that the executive must now defend actions outside the laws as truly necessary. 10 There is some evidence that Locke was quite dissatisfied with the post-Revolutionary settlement. Zuckert (1994) writes: “In a recently rediscovered commentary on the aftermath of the Revolution, Locke denounced the reasoning by which most men were endorsing the Revolution.” See Locke, “Letter to Edward Charles,” in Farr and Roberts 1985.

Vol. 101, No. 2

in one, who having a share in the Legislative, has no distinct superiour Legislative to be subordinate and accountable to, farther than he himself shall joyn and consent” (ST, 152). In other words, although Locke discusses a variety of different types of possible relations between the executive and the legislative, including many “deviant” possibilities, he never reverses his original position that, in a properly constituted commonwealth, the legislature makes laws and the executive carries them out. This does not, however, prove that Locke is a legislative supremacist; instead, as Ward (2005) argues “the theoretical core of Locke’s executive power teaching is neither prerogative nor legislative supremacy, but rather his conception of a principle of constitutional legitimacy that is distinct from and superior to normal legislation” (721). Although executives might be more prone to exercising power without right, “’tis a Mistake to think this fault is proper only to Monarchies; other Forms of Government are liable to it, as well as that” (ST, 201). The principle of constitutionalism and, more importantly, the creation of an “original” constitution also limit the power of the legislature. Although Locke never spells out exactly what the original constitution would have to look like in all of its contours, it would seem to have to establish “the Reason why men enter into Society . . . the preservation of their property” and to seek “the end why they chuse and authorize a Legislative . . . that there may be Laws made, and Rules set as Guards and Fences to the Properties of all the Members of the Society” (ST, 222). Thus, the legislature, like the executive, cannot make laws which “invade the Property of the Subject, and to make themselves, or any part of the Community, Masters, or Arbitrary Disposers of the Lives, Liberties, or Fortunes of the People” (ST, 221). By establishing what the government cannot do, as for instance we see in the Bill of Rights in the Constitution of the United States, dissenters to arbitrary governmental action, both executive and legislative, have the means by which they can signal the people of a threat to their long-term interest in security against arbitrariness. That being said, Locke focuses on the close relation between constitutionalism and legislative power. He discusses a “Constitution of the Legislative” and claims prior to this that “the essence and Union of the Society” consists “in having one Will, the Legislative.” And, although such legislative power could conceivably, but improperly, rest in “a single Person” who will “have the Supream Executive Power, together with the Legislative,” the very term Locke uses suggests that, properly speaking, it should “consist of several Persons” who understand their “supream Power” as somehow “being placed in them by the People” (ST, 153). Only such legislatures “placed in collective Bodies of Men, call them Senate, Parliament, or what you please” can create a situation in which “every single person became subject, equally with other the meanest Men, to those Laws, which he himself, as part of the Legislative had established” (ST, 94). If an original constitution can make it clear to the people that laws are only properly made by the legislative branch, understood as separate

219

Locke’s Second Treatise

from the executive branch, then, here again, legislators have the means by which to signal the people that their constitution has been breached when executives seek to do too many things that are constitutionally not their province. They can claim the executive has acted outside their fundamental laws, and that “whereever Law ends, Tyranny begins” (ST, 202). Or at the least, they can assert usurpation if the executive has, even while claiming it is in the public interest, clearly exercised a “Power, which another hath a Right to” (ST, 199). With an original constitution, legislators may also be able to rectify the problem of popular indifference to oppression until it extends “to the Majority of the People.” The key is to make “the Precedent, and Consequences” of “Mischief and Oppression . . . light only on some few” “seem to threaten all” (ST, 209). Through the creation of written rules that specify what an executive cannot do, the legislative elites can point to the breach of such “declared limitations of Prerogative” (ST, 162), that is, a Bill of Rights or an enumeration of powers including in which branch they properly reside, to reveal a precedent that promises to threaten all. For instance, the American Constitution guarantees the writ of habeas corpus to its citizens, unless in cases of rebellion or invasion. Absent such extenuating conditions, if the American president were to begin rounding up a few hundred citizens over and against its being expressly forbidden by the Constitution, his opposition would find it much easier to rile the American people against this visible invasion of their Constitution. Because most people cannot see things beyond what they “find and feel,” they would not be riled up merely by the oppression of those they do not know. However, the violation of their written constitution may cause them to feel that the limited oppression of a few signals the general oppression of all. Because they feel the written constitution as their own, its breach may allow the tyrannical design to be made “visible to the people.” Through the visibility of its demarcations of power, the people may be more easily made to “feel, what they lie under, and see, whither they are going” (ST, 225) when these demarcations are breached. Finally, the original constitution can foreclose the rightfully unlimited claims made by prior monarchs and, for that matter, any executive. Burgess (1996) shows well that the English royalist idea of prerogative always meant that the monarch must act for the public good. Further, he argues that the pre-Civil War notion of monarchy conceived of kings as limited even as they were not subject to any rightful means of resistance or, even, questioning; or, more precisely, they were rightfully limited only by the judgment of God—–no small thing if a King believes in a just God (26). The people’s passivity in relation to such rulers stems at least in part from a belief that the piety of such rulers will limit their behavior in a meaningful manner, just as the people’s own strong piety limits them. By specifying the powers rightfully possessed by an executive and specifying a legitimate right of resistance, Locke’s original constitution can also contribute to the transformation of the people’s relation to their government. Thus, as has

220

May 2007

been shown, though Locke is not naively optimistic that the people will always consider their long-term interests in constitutionalism, he does seem reasonably optimistic that they can at least advance beyond their paternalist ancestors who were willing simply to trust their rulers because their rulers knew God would hold them accountable. Rather than expecting the limitations to come from God, they may come to realize that they should expect them to come from themselves. Though they may not exercise such limitations well, they would at least know what their ancestors did not: that they were responsible for them. The very fact that powers are specified implies that rulers are not simply to be trusted with their power. Accordingly, such specification should also raise the people’s suspicion if the executive claims an inherent right to unspecified powers. Unlike royalist prerogative, there should be no inherent right to unspecified powers within the original constitution; the executive’s power must be understood as existing only when exigent circumstances require action unanticipated by and thus not provided for by the standing laws or when obedience to the standing laws in a given situation falls short of fulfilling the public good. Such prerogative establishes no precedent; such prerogative exists only in relation to the exigency and only until the “Legislative can conveniently be Assembled to provide for it” (ST, 159). Only if the exercise of prerogative is understood as creating no precedent for its future exercise can the people avoid Locke’s warning that “the Reigns of Good Princes have been always most dangerous to the Liberties of their People” (ST, 166). If an executive claims more or does otherwise, the original constitution gives the legislative elite the signals with which they can reveal the executive’s tyrannical intentions, or, at least, his usurpation.

CONCLUSION Soon after the American founding, there is an important, though often overlooked, debate between Madison and Hamilton regarding executive power. Writing as Helvidius, Madison claims that Hamilton’s arguments as Pacificus, which he claims asserts a “concurrent right” in the executive to many powers which are properly legislative in nature, complicates the constitutional separation of powers. This complication would mean that “no citizen could any longer guess at the character of the government under which he lives” and “the most penetrating jurist would be unable to scan the extent of constructive prerogative.” By establishing “landmarks of power,” the Constitution defends the “public liberty” (64–65). If inroads are made on the clear demarcations which Madison thinks the Constitution establishes, then such lead to further inferences that could also “not be repelled.” Ultimately, “the least regular of them must go smoothly down with those who had swallowed the gross sophistry which wrapped up the original dose” (88–89). Walling (1999) writes: “Madison worries that if he gave Hamilton an inch, then some executive might later take a mile” (150). In fact, Madison worries, it seems, more about

American Political Science Review

the constitutional language with which Hamilton justifies Washington’s proclamation of neutrality than the proclamation itself (Schmitt 2000). Such worries stem from Madison’s interest in maintaining a Constitution that establishes clear boundaries both upon the general powers of government and upon the relations between the branches (Rosen 1999). Such boundaries establish the visible means by which the people can judge both the actions of their government generally and the more specific actions of their executive. Locke points to this same need for a clearly articulated “original” constitution with which the legislative elite can establish to the people the usurpation and tyranny of an overreaching executive. Such a need is created by the people’s natural tendency to remain insufficiently vigilant in restraining those who hold power—–an insufficiency that can be otherwise exploited by the wily executive intent on enlarging his power. Yet, even as Locke points to the necessity for an “old form” that can counteract the “old form” represented by his own King’s claim to rightfully unlimited prerogative, such necessities neither create their reality nor, if they do come into existence, the persistence of their reality. Moreover, even with an original constitution, the “busie heads” must still convince the people that the executive’s usurpation of its established demarcations of power constitute a serious intent upon tyranny and not simply a justified breach created by necessity. Although such convincing will be made easier to the extent that they cherish the separation of powers created by their original constitution, Locke’s presentation of a relatively apathetic populace still counsels some pessimism regarding its chance of success. Perhaps, an original constitution can better insure that legislative branches are not permanently prorogued by executives “concerned” about the people’s welfare; but can they create a people who will become moved by “the examples of particular Injustice, or Oppression of here and there an unfortunate Man” (ST, 230)? This problem is further complicated by the discretionary nature even of what I have called constitutional prerogative. Because Locke envisions the continuing necessity of discretionary executive power even in the best constitutional order, we cannot simply conclude that anytime that the executive claims to need discretionary powers outside and against the law that he intends tyranny; although we should become much more suspicious if the executive claims an inherent right to such powers. For instance, despite the fact that the power does not seem to be his constitutionally, Lincoln may have been absolutely justified, as a matter of constitutional principle, in suspending the writ of habeas corpus prior to the convening of Congress. Or perhaps, again as a matter of national security and thus, perhaps, constitutional principle, the Bush administration was justified in holding Padilla as an “enemy combatant” without a formal arrest or trial. The powers created by the assertion of necessity create questions that make it difficult for the people to become persuaded by the “busie heads” that the executive intends tyranny. Although, it may be precisely for this reason that Madison thinks constitutional simplicity so essential. If the Con-

Vol. 101, No. 2

stitution is not understood as creating clearly demarcated powers, it becomes all too easy for an executive to exploit the grey areas that exist in constitutional interpretation.

REFERENCES Agamben, Giorgio. 2005. State of Exception. trans. Kevin Attell. Chicago: The University of Chicago Press. Ashcraft, Richard. 1986. Revolutionary Politics and Locke’s Two Treatises of Government. Princeton: Princeton University Press. Baker, Nancy V. 2002. “The Law: The Impact of Antiterrorism Policies on Separation of Powers: Assessing John Ashcroft’s Role.” Presidential Studies Quarterly 32 (December): 765–78. Burgess, Glenn. 1996. Absolute Monarchy and the Stuart Constitution. New Haven, CT: Yale University Press. Cooper, Phillip J. 2005. “George W. Bush, Edgar Allen Poe, and the Use and Abuse of Presidential Signing Statements.” Presidential Studies Quarterly. 35 (3): 515–32. Dunn, John. 1967. “Consent in the Political Theory of John Locke.” Historical Journal 10 (2): 153–82. Farr, James, and Clayton Roberts. 1985. “John Locke and the Glorious Revolution: A Rediscovered Document.” Historical Journal 28 (2): 385–98. Fatovic, Clement. 2004a. “Constitutionalism and Contingency: Locke’s Theory of Prerogative.” History of Political Thought 25 (Summer): 276–97. Fatovic, Clement. 2004b. “Constitutionalism and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives.” American Journal of Political Science 48 (July): 429–44. Faulkner, Robert. 2001. “The First Liberal Democrat: Locke’s Popular Government.” The Review of Politics 63 (Winter): 5–39. Fisher, Louis. 1995. Presidential War Power. Lawrence, KS: University Press of Kansas. Gauthier, David. 1977. “The Social Contract as Ideology.” Philosophy and Public Affairs 6 (Winter): 130–64. Grant, Ruth. 1988. “Locke’s Political Anthropology and Lockean Individualism.” The Journal of Politics 50 (February): 42–63. Hamilton, Alexander, and James Madison. 1976. Letters of Pacificus and Helvidius. New York: Scholars’ Facsimiles and Reprints. Holmes, Stephen. 1995. Passions and Constraint: On the Theory of Liberal Democracy. Chicago: The University of Chicago Press. Hulliung, Mark. 1974. “Patriarchalism and Its Early Enemies.” Political Theory 2 (November): 410–19. Jefferson, Thomas. 1982. Notes on the State of Virginia. ed. William Peden. Chapel Hill, NC: University of North Carolina Press. Josephson, Peter. 2002. The Great Art of Government: Locke’s Use of Consent. Lawrence, KS: University Press of Kansas. Kassop, Nancy. 2003. “The War Power and its Limits.” Presidential Studies Quarterly 33 (September): 509–29. Kleinerman, Benjamin A. 2005. “Lincoln’s Example: Executive Power and the Survival of Constitutionalism.” Perspectives on Politics 3 (December): 801–16. Lincoln, Abraham. 2001. Abraham Lincoln: His Speeches and Writings. ed. Roy P. Basler. Cambridge, MA: Da Capo Press. Lobel, Jules. 1989. “Emergency Power and the Decline of Liberalism.” Yale Law Journal 98 (May): 1385–1433. Locke, John. 1988. Two Treatises of Government. ed. Peter Laslett. Cambridge, UK: Cambridge University Press. Machiavelli, Niccolo. 1998. The Prince. trans. Harvey C. Mansfield. Chicago: The University of Chicago Press. Macpherson, C. B. 1962. The Political Theory of Possessive Individualism: Hobbes to Locke. Oxford, UK: Oxford University Press. Mansfield, Harvey. 1989. Taming the Prince: The Ambivalence of Modern Executive Power. New York: The Free Press. Mattie, Sean. 2005. “Prerogative and the Rule of Law in John Locke and the Lincoln Presidency.” The Review of Politics 67 (Winter): 77–111. McClure, Kirstie M. 1996. Judging Rights: Lockean Politics and the Limits of Consent. Ithaca, NY: Cornell University Press. Mehta, Uday Singh. 1992. The Anxiety of Freedom: Imagination and Individuality in Locke’s Political Thought. Ithaca, NY: Cornell University Press.

221

Locke’s Second Treatise Myers, Peter C. 1998. Our Only Star and Compass: Locke and the Struggle for Political Rationality. New York: Rowman and Littlefield Publishers, Inc. Pangle, Thomas. 1987. “Executive Energy and Popular Spirit in Lockean Constitutionalism.” Presidential Studies Quarterly 17 (Spring): 253–65. Parry, Geraint. 1964. “Individuality, Politics and the Critique of Paternalism in John Locke.” Political Studies 12 (June): 163–77. Pasquino, Pasquale. 1998. “Locke on King’s Prerogative.” Political Theory 26 (April): 198–208. Pateman, Carole. 1979. The Problem of Political Obligation: A Critical Analysis of Liberal Theory. New York: Wiley. Rahe, Paul. 1992. Republics Ancient and Modern. Chapel Hill, NC: University of North Carolina Press. Resnick, David. 1984. “Locke and the Rejection of the Ancient Constitution.” Political Theory 12 (February): 97–114. Rosen, Gary. 1999. American Compact: James Madison and the Problem of Founding. Lawrence, KS: University Press of Kansas. Rossiter, Clinton. 1948. Constitutional Dictatorship: Crisis Government in the Modern Democracies. Princeton: Princeton University Press. Ryan, Alan. 1971. “Locke and the Dictatorship of the Bourgeousie.” In Life, Liberty, and Property: Essays on Locke’s Political Ideas. ed. Gordon J. Schochet. Belmont, CA: Wadsworth. Schlesinger, Arthur M. 1973. The Imperial Presidency. Boston: Houghton Mifflin. Company. Schmitt, Gary J. 2000. “Washington’s Proclamation of Neutrality: Executive Energy and the Paradox of Executive Power.” The Political Science Reviewer 39: 121–59. Schochet, Gordon J. 1969. “The family and the origins of the state in Locke’s political philosophy.” In John Locke: Problems and Perspectives. ed. John W. Yolton. Cambridge, UK: Cambridge University Press. Schumpeter, Joseph A. 1952. Capitalism, Socialism, and Democracy. 5th edition. London, UK: Allen and Unwin.

222

May 2007 Scigliano, Robert. 1981. “The War Powers Resolution and the War Powers.” In The Presidency in the Constitutional Order. ed. Joseph M. Bessette and Jeffrey Tulis. Baton Rouge, LA: Louisiana State University Press. Scott, John T. 2000. “The Sovereignless State and Locke’s Language of Obligation.” American Political Science Review 94 (September): 547–61. Seliger, Martin. 1968. The Liberal Politics of John Locke. London, UK: George Allen and Unwin. Sidney, Algernon. 1990. Discourses Concerning Government. ed. Thomas G. West. Indianapolis: LibertyClassics. Tarcov, Nathan. 1981. “Locke’s Second Treatise and ‘The Best Fence Against Rebellion.”’ The Review of Politics 43 (April): 198–217. Tarcov, Nathan. 1984. Locke’s Education for Liberty. Chicago, University of Chicago Press. Tarlton, Charles D. 2004. “Reason and History in Locke’s Second Treatise.” Philosophy. 79 (April): 247–79. Thomas, George. 2000. “As Far as Republican Principles Will Admit: Presidential Prerogative and Constitutional Government.” Presidential Studies Quarterly 30 (September): 534–52. Tocqueville, Alexis de. 2000. Democracy in America. trans. Harvey C. Mansfield and Delba Winthrop. Chicago: The University of Chicago Press. Waldron, Jeremy. 1989. “John Locke: Social Contract Versus Political Anthropology.” The Review of Politics 51 (Winter): 3–28. Walling, Karl-Friedrich. 1999. Republican Empire: Alexander Hamilton on War and Free Government. Lawrence: University Press of Kansas. Ward, Lee. 2005. “Locke on Executive Power and Liberal Constitutionalism.” Canadian Journal of Political Science 38 (September): 719–44. Zvesper, John. 1984. “The Utility of Consent in John Locke’s Political Philosophy.” Political Studies. 32 (March): 55–67. Zuckert, Michael P. 1994. Natural Rights and the New Republicanism. Princeton: Princeton University Press.