John Locke is considered a pioneer in democratic and liberal thought, setting establishing an intellectual tradition that would see fruition in the United States constitution: the rights of man, elective governance and the separation of powers. Locke’s views are, if not entirely in keeping with modern sensibilities, a good deal closer than what came before. However, there is one place where Locke allows the possibility for power unbound by the rule of law.
Locke wrote about an executive power called prerogative. “Many things there are, which the law can by no means provide for” Locke reasons “and those must necessarily be left to the discretion of him that has executive power in his hands”. Locke uses the example of a man’s house being on fire. An authority that follows the law exactly might not pull down a neighbor’s house to stop the fire from spreading. “This power to act according to discretion, for the public good, without prescription of the law, and sometimes even against it, is that which is called prerogative.”
The contradiction between rule of law and executive prerogative in Locke’s Second Treatise of Civil Government prefigures our modern debates over whether the executive ought to be bound by the rule of law. One reoccurring phrase in American political and legal rhetoric is “the constitution is not a suicide pact.” Encapsulated in that phrase is an argument very similar to Locke’s statements about prerogative: that often the executive must be above conventional law in order to protect the security of American citizens. The quote is often attributed to Abraham Lincoln (probably wrongly) as a response to being challenged on his revocation of habeas corpus. Though the constitution allows habeas corpus to be revoked in cases of war and rebellion, it gives that right to congress. Lincoln usurped that right himself.
There have been examples of the president subverting the law in cases where he believed the national security of the country to be at stake since Lincoln. Franklin Roosevelt interned over a hundred thousand Japanese Americans in “War Relocation Camps”, fearing they acts of sabotage. This action was another unauthorized violation of habeas corpus.
No president has been more proactive in asserting prerogative than George W Bush. Bush has made clearly “reinterpreted” many laws passed by congress, aggressively changing the intent of these laws, and gutting key provisions (1) Bush also circumvented the Foreign Intelligence Surveillance Act in order to spy on Americans without a warrant. (2) This is particularly peculiar because the law was rewritten after September 11th in specifically in order to make it easier to obtain a warrant. The administration supported these actions on the grounds that it is a specific presidential power to ignore legislation. Obama, though less extreme than Bush, clearly also asserts prerogative, for example in continuing to issue signing statements (3).
Prerogative is inherently problematic. Locke provides no way for a legislature to bring an out of control executive to heel, outside of an “appeal to heaven”, code for an armed movement. Such inability to check executive power is particularly strange given the fact that Locke is clear that all parts of the government are bound by the “social contract” and that the most important power ought to be the legislative. It was Locke’s view that “there can be but one supreme power, which is the legislative, to which the rest are and must be subordinated” (belief the majority of the founders of the United States took from Lockean thought). Locke doesn’t seem to notice that prerogative affords the executive a powerful ability to become the one supreme power, and make the legislative subservient, arguably the current condition in the United State.
Prerogative affords a certain amount of absolutism in Lockean liberalism. As one of my classmates remarked “he’s soiled his beautiful rose bed of liberal democratic ideals with sooty Hobbesian sovereignty.” Locke allows one loophole, but it’s a large one. An executive acting in the name of protecting the citizenry can assert great authority, both over its citizens and the legislative. Locke believes citizens will act as a break on prerogative, but he doesn’t realize that citizens are far to likely to grant it expansive powers in cases of national crisis, enabling the executive take action citizens later come to regret (the internment of the Japanese Americans is a case in point). This is why it is important that the executive should always be bound by rule of law. Absolutism does not belong in a democratic system.
(Where not otherwise indicated, all quotes are from John Locke’s Second Treatise on Civil Government, as it appears in Modern Political Thought, edited by David Wootton)