Locke, John (1631–1704)
LOCKE, JOHN (1631–1704)
John Locke, the English philosopher of enlightenment, formulated the basic doctrines that influenced the American Framers of 1787. While his famous Second Treatise, "Of Civil Government" (1688), alludes to various traditional ways to limit governments, it sets forth an effectual new way, later called liberal constitutionalism. That comprised a sphere of individual liberty, fenced by a right to property, and fixed government, constituted by a majority's consent. Constitutional or civil government is to be representative, responsible, and limited, with powers separated as well as effective, and it is to be kept to its fundamental law by a perpetual threat of popular rebellion.
The first of Locke's Two Treatises of Government rebutted Robert Filmer's contention that monarchy exists by divine right, derived from the fatherly authority of Adam and of God. Locke thrust at paternalism, which he regarded as the natural foundation of uncivil government and of inhumane civilization in general. Mankind has inclined unthinkingly to obey fathers, who grew to be patriarchs of families and chiefs of tribes, and finally to be oppressive kings and nobles upheld by wealth, power, and the servile flatteries of traditional faiths. The Letter concerning Toleration (1689) espoused freedom of conscience and separation of church and state. Locke tried to remove religion from the magistrate's armory and to remake churches into voluntary associations keeping watch on government and on one another. The Letter counsels public toleration of religion, but as a thing merely private, and only of civil religions willing to tolerate other faiths and to obey the civil powers. In other writings Locke advocated a reasonable Christianity and a worldly and private education, and he explained human understanding prosaically, as reliably derived from sense impressions rather than from intuitions or divinations.
The first chapters of the Second Treatise set forth the famous doctrine of individualism: human beings are naturally free, equal, and occupied with securing themselves, not naturally subordinate to a superior or oriented to something noble or true above themselves. They are not subject to fathers or mothers so soon as they can "shift for themselves," or to husbands or wives if they no longer consent to be spouses, or to some gentleman or lord in his vineyard or estate. On the contrary, they have a natural right to acquire the means of life, to obtain the fruits of their own labor. Locke devised a private right of unlimited acquisition which implicitly indicts any leisured class, authorizes opportunity for the "industrious and rational," and provides powerful incentives for work, invention, and production. Locke was the philosophic father of capitalism, his plan whereby freedom of enterprise produces economic growth and the means of collective security. The profits of entrepreneurs, which Locke defended as incentives, occasioned the later attacks on capitalism as unjust and limited government as callously narrow.
The central chapters of the Second Treatise are Locke's prescription for public powers that will serve the people instead of exploiting them. He insisted upon powerful institutions, what the federalist was to call effective or energetic government. A condition without government, Locke eventually maintained, is "very unsafe, very insecure," and people are "driven" to establish a legislative power to define laws, judges to apply them, and an executive to enforce them. Despite this agreement with the authoritarian Thomas Hobbes, Locke insisted that raising a state is easy compared to domesticating it. For domesticated or civil government the key is constitutionalism—government according to a man-made fundamental law agreeable to a majority. In particular, the supreme power, which Locke defines as a lawmaking power, is to be set up with a majority's consent (immediate or eventual, express or tacit). This supreme legislative power, however, is also and primarily to be shaped by Locke's enlightened prescriptions for a legislative limited, conditional, and rather democratic. Every actual legislature has by right only this legislative power, the natural constitution behind any written constitution, and a consenting majority is to be supposed an enlightened majority. The legislature must aim to preserve individual rights, to govern by declared laws, not to impose taxation without representation, and not to delegate its powers. Also, a legislature must be broadly representative of "populous" places filled with "wealth and inhabitants." Locke required an assembly of "deputies" of the people, while cautiously but pervasively impugning an aristocratic senate or house.
Locke provided for an executive power that is (unlike a monarch) subordinate to law and yet (like a monarch) able to act beyond law when public necessities require. The executive enforces law, unites the nation's forces for foreign affairs (Locke's "federative" power), includes the judiciary, and remains, unlike the legislature, permanently on duty. For purposes of lawmaking Locke subordinated the executive to the legislature and attacked executives (such as the British king) who shared in law-making. Locke's argument led discreetly toward government by a responsible ministry, a dependence on a popular legislature that was rejected when the American Founders devised the Presidency, and a constitutional monarchy, which is only a "head of the republic," "a badge or emblem" representing the people. Still, executive power is extended by political necessity. In extraordinary situations, such as civil war, executive "prerogative" may extend to actions without authorization of law or even in violation of fundamental law, as when abraham lincoln in 1861 raised troops and monies before Congress had assembled. Salus populi suprema lex est is the Two Treatises' motto: the people's benefit is the supreme law. Locke repeated this maxim, which shows the limits of constitutional law, as he urged a king to reapportion an oligarchic house into a representative legislature.
theSecond Treatise ends by insisting on an extraconstitutional right of revolution, to secure a constitutional order against tyranny and also to help bring about popular constitutionalism. While executive prerogative may extend to reform, it is not to include a "godlike" prince with "a distinct and separate interest," a despot who violates the fiduciary "trust" of office, a conqueror, a usurper, a tyrannical king, or a clique of the rich. Such excesses make power revert to the people, who may set up anew their legislature. Locke repeatedly called this doctrine new. Each of the last six chapters ends by holding up to governors and peoples the new right of popular rebellion. In effect, Locke justified rebellion against every regime not a constitutional republic, and justified "revolution" of traditional beliefs inimical to individualism and popular government, that is, of almost all traditional beliefs.
The American Framers accepted Locke's broad framework of natural rights and civil government, while varying details of the Constitution in accord with the cautious versions of montesquieu and his followers, David Hume and Sir william blackstone. Fearing a political zealotry that might rival the old religious wars, Montesquieu, in his Spirit of the Laws (1748), abstained from Locke's fiery language of natural and popular liberty. His modified Lockeanism would allow forms and structures to vary with circumstance, make the judiciary a third separate power, and allow a senate of the successful and wealthy. Montesquieu also sought to introduce humane civilization less by rebellion and more by the spread of commerce and by changes in the private law of contract and inheritance.
Robert K. Faulkner
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Strauss, Leo 1953 Natural Right and History. Chicago: University of Chicago Press.
Vile, M.J.C. 1967 Constitutionalism and the Separation of Powers. Oxford: Clarendon Press.