17. Constitutional Government - Locke's second treatise - 13 - 19

Professor Steven Smith: I want to look at two sets of issues. I want to in, a way, conclude my interpretation, my reading of the Second Treatise, by focusing on the role of executive power in Locke's theory of government, Locke's theory of the constitutional state, particularly focusing on the role of the executive, vis-a-vis the legislative branch of government, and then I want to turn a little more speculatively to thinking about Locke and the American regime and the current state of political philosophy, modern contemporary American political philosophy. But let me start first by going back and sticking with the Second Treatise by talking a little bit about the role of legislative and executive power. The last time, I think, I was concluding by arguing that Locke doesn't endorse necessarily one particular form of government from any other. He is an advocate of what we have come to call limited government, of constitutional government. There is that important passage where he ridicules the Hobbesian sovereign as a lion and tells us we did not enter into the social compact to be devoured by lions. He says, the form of government must be limited although he's relatively open or at least non-committal, agnostic you might say, as to what particular form that government may take. One feature of this form of government that he thinks is very important, is that it must in some sense embody a separation of powers, powers must be made to check one another, what he calls in the book the subordination of powers. This is Locke's doctrine and you will see it there. We often associate it with Montesquieu or sometimes with the federalist authors but, in fact, Locke himself is a strong advocate of what he calls the subordination or separation of powers, not exactly the same as we'll see between our understanding of executive legislative and judicial, but nevertheless a separation nonetheless. However, in the first instance, Locke emphasizes and in fact he continually affirms nevertheless the primacy of legislative authority. In England, in the England at his time and even today, that means a doctrine of what is called parliamentary supremacy but he says that the first and fundamental positive law of all constitutions is in establishing that of the legislative power. The first act, after the completion of the social contract, he says, is establishing the legislative power. It is the lawmaking authority of government that is supreme, he wishes to emphasize. This seems to push Locke, you might, say more in the small ‘d' democratic direction. It is not so much executive power, the power of a prince, but rather the legislature, the parliament that is supreme. There is nothing more important, in Locke's theory of constitutional government, than the existence of what he continually refers to as settled or known laws, settled laws that serve against arbitrary rule. In many ways, the purpose of government for Locke is much less to offset the dangers of returning to an anarchic state of nature as it was for Hobbes than to prevent the possibility of the emergence of tyrannical or despotic power, tyrannical or despotic sovereign, and of course, Locke's writing is very much bound up with the big and major constitutional crisis of his time leading to the overthrow and expulsion of a king, James II. Yet in many ways, even though Locke is the great advocate of legislative supremacy, he obviously cannot and does not wish to dispense altogether with the role of executive power. He often treats the executive, whether that be in the form of a prince, a monarch or perhaps even a body in a cabinet of chief officers as it were. He treats them often simply as if they were an agent of the legislative or of the legislature. The purpose of the executive, he sometimes seems to write, is merely that of carrying out the will of the legislature. In Locke's language, "the executive power is ministerial and subordinate to the legislature," section 153, I believe. The executive, again, on some aspects of Locke's writing seems to be little more than a cipher in comparison to the doctrine of legislative supremacy. And yet, Locke here is not altogether consistent, one has to say, because he understands in every community there is a need for a distinctive branch of government dealing with matters of war and peace. Locke calls this the federative power. Every community, he says, like Hobbes, is to every other community what every individual is to every other individual in the state of nature and a distinctive federative or war-making power within the government is necessary for dealing with matters of international conflict, conflict between states. And in a remarkable passage, Locke notes that this power, he says, cannot be bound by antecedent standing positive laws but it must be left to, quote, "the prudence and wisdom of those whose hands it is in to be managed for the public good." In other words, Locke seems to suggest that this particular kind, this branch of government, this federative branch which falls to some degree under the executive, must have a certain latitude even apart from the law that relies, he says, on the prudence and wisdom of those whose hands it is in to manage it for the public good. In other words, matters of war and peace cannot be left to the legislature or to standing laws, as he calls them, alone but requires the intervention of strong leaders, what he calls in an absolutely stunning passage god-like princes, section--if you don't believe me, section 166. Locke's reference here to god-like princes seems to recall Machiavelli in many ways, Machiavelli's talk of armed prophets. It is necessary, in extreme situations, for such princes to call on their prerogative power. It is impossible, Locke writes, to foresee and so by laws to provide for all the accidents and necessities that may concern the public and that during, in other words, contingencies or emergency situations the executive must be empowered with this prerogative power to act for the good of the community. For this reason it seems, the executive is not simply a tool or an agent of the legislature but he says, again, must have the power to act according to discretion, that is to say, according to his own discretion for the public good without the prescription of law, those are Locke's own words. How to balance his argument for constitutional government and legislative supremacy with this doctrine of prerogative power and what seems to be a kind of power of what he calls in no uncertain term the god-like princes and their need to exercise this power? Locke's prerogative is, in many ways, the result of simply the inability of law to foresee all possible circumstances, all possible contingencies. That's an argument that goes as far back as Aristotle, we've seen. Our inability to make rules that can apply to all possible events, makes it necessary to leave some discretionary power in the hands of the executive to act for the public safety. One of the examples that Locke gives of the use of this power is in fact a domestic, not an international issue, which is to say, in the case of a fire in a city it is sometimes necessary, he says, in his day for the fire department to tear down the house of an innocent person to prevent the fire from spreading to other houses. This is acting for the public good of the community, even while in some ways it's clearly a violation of rights of property and so on. He understands this as a piece of prerogative power acting for the public good. In fact, the example is not so far fetched. Think today for example about arguments we have today. Even in Connecticut, there's a big argument going on about the right of what's called "eminent domain," the right of the government to absorb or to take over private properties whenever, usually for things like schools or airports but also for general improvement when it is thought it will enhance the public good. There's a big debate going on right now out in New London and in Brooklyn also with the argument about the creation of some civic center, some sports arena that will require the demolition of certain neighborhood houses. And there's a big debate about this eminent domain. What is that, but in a way Locke's example of prerogative power, acting, doing something that is somehow said to be for the public good but that represents some kind of extra constitutional power? But the question for Locke, as for any constitutional lawyer, is what are the limits of this prerogative power? What check, if any, is there on this power to prevent their abuse? Well, Locke doesn't exactly say. Yes. Right. He doesn't exactly say. He raises this question to be sure, of fundamental importance for constitutional government. Does executive authority, he asked us, extend to all things even or especially in times of war? Think about the debates that are going on now about detainees at Guantanamo or the issues of domestic spying when it comes to issues of the war on terror. Are these examples of prerogative power, that is to say, the executive acting outside the limits or the bounds of constitutional authority for the sake of protecting the public good or are these examples of kind of political absolutism? Is the invocation of this power, in some ways, going down the slippery slope to despotism and absolutism? I will leave it to you or your sections to try to discuss these matters but Locke himself praises those who he calls the wisest and best princes of England as being those who have exercised the largest prerogative on behalf of the public good. This is beginning to sound more and more in respects like Machiavelli than the advocate of, again, limited government. This power comes into play, he says, especially during times of national crisis or emergency when it is necessary to act for the public safety in some ways. And again, this seems to have special resonance for us today as we face issues like states of emergency and states of exception. There are in fact political theorists, one name comes to mind, a twentieth-century German legal philosopher by the name of Carl Schmitt who argued that the state of emergency or the exceptional situation is the essence of politics and that the person or body who has the power to declare the exception is none other than the sovereign. So from Schmitt's point of view you might say this idea of prerogative is a kind of extra constitutional power that the statesman must of necessity utilize when ordinary constitutional operations, like the rule of law, prove to be inadequate. But consider another example if you like, that prerogative power, about prerogative powers that maybe granted by the Constitution. Consider Lincoln's famous suspension of habeas corpus during the Civil War. Lincoln, interestingly, did not take this extraordinary step by appealing to an extra-constitutional power that obtains in times of crisis. Rather, Lincoln argued quite forcefully that this sort of prerogative power is already deeply embedded within the structure of constitutional government. He cites the Constitution when it came to the suspension of habeas corpus. The Constitution writes, "The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety requires it." In other words, the Constitution itself seems to allow for this extraordinary kind of action at least in cases of rebellion or invasion when it says the public safety requires it. The Constitution seems to embody within itself, our constitution that is, this Lockean power of prerogative that comes into effect or can be legitimately exercised in times of rebellion or invasion. Are we living in that kind of age now, not rebellion perhaps but invasion? Well, think about that again. Are these arguments applicable to our situation today, in some sense, when it comes to debates about the extent of executive power to embark on these extraordinary measures? And yet at the same time, Locke is aware clearly of the potential abuse of this kind of prerogative. He asks, who will judge, who can judge whether the discretion of the executive is being used for the public safety or the public good or whether it is simply a kind of usurpation of power? In these moments of high constitutional crisis between conflicting powers of government, in such cases, Locke says there shall be no judge on earth. He says the people have no other remedy in this but to appeal to Heaven. This is in section 168. How much is contained in that term "appeal to Heaven?" What does Locke mean in terms of high constitutional crisis when he says there is no judge on earth, the people must appeal to Heaven? Does that mean they should fall down on their knees and begin to pray, what they should do? Unlikely. By an appeal to Heaven, Locke means the people's right to dissolve their government. He raises this question at the very end of the book. When a conflict between the people or their representatives and the executive becomes so great that the very conditions of social trust have been dissolved, who will be judge? And he answers emphatically: the people will be judge. Locke affirms here a right of revolution. An appeal to Heaven, or what he calls an appeal to Heaven really refers to an appeal to arms, to rebellion, and the need to create a new social covenant. Locke, you can see, is attempting to hold together a belief in the sanctity of law and the necessity for prerogative that may sometimes have to circumvent the rules of law. Are these two doctrines incompatible? I think in many respects or at least in some respects they are. Can the prerogative power of the executive be in a way constitutionalized so that it does not threaten the liberty of its own citizens? Locke alerts us to this timeless as well as this very timely problem. One of the best sources for thinking about many of these constitutional issues today, regarding privacy rights and other kinds of citizen rights, can be found in, I would say the last five chapters or so of Locke's Second Treatise. I can't think of a better source. So in the end Locke's appeal to Heaven or Locke says the people have an appeal to Heaven, that is to say an appeal to arms, an appeal to revolution, suggests that at the end of the day Locke was a revolutionary but I would say also a sort of cautious and moderate one, if this is not a complete contradiction in terms. I won't go through chapter 19, the famous chapter on revolution in full, to talk about the conditions under which he believed the people can rightfully appeal to Heaven, as it were, but Locke's doctrine of consent and legislative supremacy, this should make him in many ways a hero to Democrats, to radical Democrats. His beliefs about limited government, the rights of property should make him a hero to in some ways constitutional conservatives and even libertarians. In the end, I think Locke was neither or both. Like all of the great thinkers in some ways, he defines--he defies, excuse me, simple classification but there is no doubt that Locke gave the modern constitutional state its definitive form of expression. And the problems of our state, the problems, the legal, the constitutional and political problems that we experience are very much problems rooted in the philosophy of John Locke and are unthinkable without the influence of Locke. So that takes me to a theme that I want to talk about for a little while, which is Locke's America, John Locke's America. No one who reads Locke, even superficially, and I would not accuse anyone here of being a superficial reader, after all, but no one can fail to be impressed by the harmony, in many ways, between Locke's writings and those of the American Republic that he helped to found. His conception of natural law, rights, government by consent, the right to revolution and all are all part of the cornerstone of our founding documents. To some degree, as I've just been suggesting, a judgment on America is very much a judgment on the philosophy of Locke and vice versa. In many ways, if anyone is, I think Locke has the title to be considered America's philosopher-king. So how should we think of Locke after more or less three centuries of consistent Lockean rule? How should we think of Locke? For many years and for many people, even today, the affinity, the affiliation between Locke and America has been regarded in a largely although not wholly, largely positive light. For many historians and political theorists, our stability, our system of limited government, our market economy has been the result of a sort of broad consensus over Lockean principles, over Lockean first principles. But for many other readers of American history, this relationship has been seen as more problematic. In the 1950s, a book written by a famous political theorist and historian, named Louis Hartz, a book called The Liberal Tradition in America, complained of America's, what he called "irrational Lockeanism." That was Hartz's line, that was Hartz's quote, "irrational Lockeanism," by which he meant a kind of closed commitment to Lockean principles and ideals that shut off all other political alternatives and possibilities. Hartz was someone very much interested in the question, as many political theorists have been since, why has there been no socialism in America, why did America not evolve or develop along European lines with social democratic parties and socialist parties like the English Labor Party and other kinds of labor movements. And Hartz's argument was that we were sort of arrested in this Lockean phase of development, what he called our irrational Lockeanism that closed off in many ways other principles. And for still other thinkers, more or less on the left, Locke legitimized what was called an ethic of what was called "possessive individualism," particularly Locke's focus on property and the rights of private property that focuses entirely on market relations or puts the market values ahead of all other things. And for still others, in many ways more recently, thinkers of a more sort of communitarian direction or bent, Locke's emphasis upon rights and the protection, that government should protect natural or certain unalienable rights, suggests a purely or overly legalistic conception of politics that has no language for talking about the common good, the public good or other sort of collective goods or benefit. So my point is that Locke's influence has not been altogether accepted by everyone. There has been much ground for criticism of this peculiar affinity between Lockeanism and America. But today, I would say that Locke's theory of liberalism or Locke's theory of limited government, constitutional government, is confronted by another alternative that, in many ways, has deep roots in the very tradition which Locke himself---the very liberal tradition in many ways of which Locke himself is the founder. And I am referring, in particular, to a book that many of you will read at some point in your Yale experience, a book, widely read and widely acclaimed book by a recently deceased political philosopher by the name of John Rawls who wrote a book in 1973 called A Theory of Justice. In many ways, Rawls' book was an attempt to update the liberal theory of the state. He invokes the idea of a state of nature, an original condition, as he calls it, a theory of rights although he does so in many ways through the techniques of contemporary philosophy and game theory and Rawls' book is probably the single most important contribution to Anglo-American political philosophy in the last generation. It is a book that situates itself within the liberal tradition beginning with Locke, developed by people like Immanuel Kant and John Stuart Mill in which Rawls himself hoped to, in many ways, bring to completion in his book. A theory of justice, as he calls it, stands or falls on its theory of rights from which all else is derived. And what I want to do for a few minutes is to contrast Rawls' general theory, so powerful and influential today, from that of John Locke's, the original founder of the liberal theory of the state, and see how they have diverged. Consider the following propositions, if you will. Here is John Locke, section 27 of the Second Treatise. "Every man has property in his own person. This nobody has any right to but himself and where there is property," he writes, "there can be justice and injustice." Here is John Rawls, one of the opening pages of his Theory of Justice. "Each person," Rawls writes, "possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason," he continues, "justice denies that the loss of freedom for some is made right by a greater good shared to others." Okay. So far, so good, in other words. Both of them present their theories of justice as justified in terms of the liberal principles of equality, freedom and the sanctity of the individual and individual rights. Both regard the purpose of government, in many ways, as securing the conditions of justice as deriving from the consent, or the informed consent, of the governed but both it seems to me go on to differ profoundly about the source of rights and therefore the role that government has in securing the conditions of justice. Let me explain a little bit more what I mean. For Locke, going back to chapter 5 of the Second Treatise, rights derived from a theory of self-ownership. According to his view, you will remember, everybody has a property in his or her own person. That is to say, no one has a claim on our bodies other than ourselves. It is on the rock of self-ownership, the fact that we have property in ourselves, it is on the rock of self-ownership that Locke builds his edifice of natural rights, justice, and limited government. To put it in a slightly different way perhaps, a person has an identity, what we might call today a moral personality or an identity by the fact that we alone are responsible for making ourselves. He uses this metaphor of the work of the body and the labor of our hands but we are literally the products of our own making. We create ourselves through our activity and our most characteristic activity is our work. Locke's fundamental doctrine is that the world is the product of our own free creativity, not nature but the self, the individual is the source of all value for Locke. It is this self, the I, the me, the ego that is the unique source of rights and the task of government is to secure the conditions of our property in the broadest sense of the term, namely, everything that is proper to us. Now, using that as a sort of shorthand, contrast this to Rawls' idea. Rawls adds to his idea of justice something that he calls the "difference principle," the DP as it's sometimes referred to in the literature on Rawls. What is the difference principle? This principle maintains that our natural endowments, our talents, our abilities, our family backgrounds, our history, our unique histories, our place, so to speak, in the social hierarchy, all of these things are from a moral point of view something completely arbitrary. None of these are ours in any strong sense of the term. They do not belong to us but are the result of a more or less kind of random or arbitrary genetic lottery or social lottery of which I or you happen to be the unique beneficiaries. The result of this, in other words, is that no longer can I be regarded as the sole proprietor of my assets or the unique recipient of the advantages or disadvantages I may accrue from them. Fortune, luck, Machiavellian fortuna, in that way, is utterly arbitrary and therefore, Rawls concludes, I should not be regarded as the possessor but merely the recipient of what talents, capacities and abilities that I may, again, purely arbitrarily happen to possess. So what does that mean in terms of social policy or theory of government? The result of Rawls' difference principle and its fundamental difference with that of John Locke could not be more striking from this point of view. The Lockean theory of justice, broadly speaking, supports a meritocracy sometimes referred to as "equality of opportunity," that is, what a person does with his or her natural assets belongs exclusively to them, the right to rise or fall belongs exclusively to them. No one has the moral right to interfere with the products of our labor, the products of--which may also include not just in a primitive sense what we do with our hands and bodies but what we do with our intelligence and our natural endowments. For Rawls, again, on the other hand, our endowments are never really our own to begin with. They are part of a common or collective possession to be shared by society as a whole, the capacities of hard work, ambition, intelligence and just good luck that, for example, got you to a place like Yale, on Rawls' account, do not really belong to you or at least the fruits of those ambitions and intelligence and good luck do not belong to you. Again they are somewhat arbitrary as a result of upbringing and genetics. They're not yours or mine, in any strong sense of the term, but rather, a collective possession that can be or should be the fruits of which distributed to society as a whole. Consider the following passage from Rawls. "The difference principle," he writes, "represents in effect an agreement to regard the distribution of natural talents as a common asset and to share in the benefits of this distribution whatever it turns out to be." Your intelligence or your drive or your endowments are, again, what he calls a collective asset. Think about that. And it is this conception of common assets that underwrites Rawls' theory of distributive justice and the welfare state, just as Locke's theory of self-ownership justifies his conception of limited government in the constitutional state. According to Rawls, again, justice requires that social arrangements be structured for the benefits of the least advantaged in the genetic lottery of society. His thought experiment that he calls "the original condition" specifies that nobody would know in advance in this condition what their particular endowment intellectually, in many other ways, would be. Therefore, every individual would, in contracting with the whole, would agree to share equally in the benefits of this, as it were, genetic lottery. So redistributing our common assets does not violate, on Rawls' account, the sanctity of the individual because again the fruits of our labor were never really ours to begin with. Unlike Locke, whose theory of self-ownership provides a moral justification for the individual, for the self, for our moral personality, Rawls' difference principle maintains that we never again belong to ourselves at all. We never really have ownership in ourselves but are always part of a larger social "we," a social collective, a collective consciousness whose common assets can be redistributed for the benefit of the whole. Locke and Rawls, the point I'm trying to make is, they represent two radically different visions of the liberal state, one broadly libertarian, the other broadly welfarist, one emphasizing liberty, the other emphasizing equality. Interestingly, again, this transition, this evolution represents a change which has gone on within in many ways the liberal tradition itself. Unlike some of these other critics, Rawls does not come to be claiming from a tradition outside of liberalism but to be developing certain arguments from within the liberal tradition and yet has moved in a way clearly very different from its Lockean formulation. Both of these views, again, they begin from common premises but move in very different directions. Locke's theory of self-ownership regards the political community in largely negative terms as protecting our antecedent individual selves and individual rights. Rawls' theory of common assets regards the community in a far more positive sense as taking an active role in reshaping and redistributing the products of our individual endeavors for the common interests. The question for you, just like the question for any of us, is which of these two views is more valid or which of the two strikes you as more powerful or plausible? My own view, and I loathe to editorialize, but my own view is far closer to American theory, to Locke's theory, which I think--than Rawls'. The Declaration of Independence, the charter of American liberty, states that each individual is endowed with unalienable rights among which are life, liberty, the pursuit of happiness. The very indeterminacy of the last phrase, the pursuit of happiness, with its emphasis upon the individual's right to determine happiness for themselves, suggests a form of government that allows for ample diversity for our natural talents and abilities and although the Declaration certainly intends that the establishment of justice is one of the first tasks of government, nowhere does it imply that this requires the wholesale redistribution of our individual goods and assets. And second, although Rawls is clearly attractive, excuse me, Rawls is clearly attentive to the moral ills of inequality and we will turn to that problem emphatically on Wednesday when we look at Jean-Jacques Rousseau's Essay on Inequality. There has never been a more powerful, passionate and persuasive critic of the ills of inequality than Jean-Jacques Rousseau but while Rawls is certainly attentive to the moral ills of inequality, he seems very naive about the mechanisms, the actual political mechanisms, by which inequalities will be rectified. Rawls wants government to work for the benefit of the least advantaged but this will require the extensive and often arbitrary use of judicial power to determine who has a right to what, far in excess of the powers of the court. The result would be, I think if we follow Rawls' teachings to their letter, the result would be not a class of philosopher-kings, but rather a class of chief justices endowed with the power to rearrange and redistribute our collective assets for the sake of achieving the maximum degree of social equality. It is no surprise that the warmest reception that Rawls' writing gets today is in the schools of law, is in the law schools where he has had an enormous influence on shaping the education of the current and the next generation of lawyers, judges and possibly chief justices who may be looking to again, looking not to the Constitution but to Rawls' theory of justice as a litmus or a tool for bringing about social redistribution. So, I leave you on that sobering note but a return to Locke such as it is, even if such a return were possible, is by no means a panacea to what ails us. I am not suggesting for a moment that Locke is some kind of cure all. Some historians, let me just mention again, Louis Hartz was but the most famous, treat America as a nation uniquely built upon Lockean foundations. America, he believed, remained something of a Lockean remnant--a Lockean, yeah, remnant, fossil in some ways, in a world increasingly governed by more radical forms of modernity. In fact, it has been our sort of stubborn Lockeanism that has, in many ways, prevented the kinds of extreme ideological polarization and conflict that one sees throughout much of the nineteenth and twentieth centuries. But Locke's effort to build a kind of modern republican government on the low but solid foundations of self-interest and self-ownership and the desire for comfortable preservation could not help but generate its own forms of dissatisfaction. Can a regime, dedicated to the pursuit of happiness or to the protection of property ever satisfy the deepest longings of the human soul? Can a regime, devoted to the rational accumulation of property answer those higher order needs or higher order virtues, like honor, nobility and sacrifice? Can a regime, devoted to the avoidance of pain, discomfort and anxiety, produce anything more than contemporary forms of Epicureanism and Nihilism? In any case, I'm suggesting no more than any other land could America insulate itself from the great heights as well as the great depths of later forms of modernity. America, as a former teacher of mine once said, is the land where the many facets, the many faces of modernity are working themselves out. We are but a moment in the kind of comprehensive self-dissatisfaction that is modernity so that a return to Lockeanism, in many ways, is not so much a cure for the pathologies of modernity. I would suggest that those pathologies are themselves already rooted in the pathologies of Locke. I will end on that sober note and encourage you to take Rousseau's advice about loving one's country seriously on Tuesday.