Domestic war: Locke's concept of prerogative and implications for U.S. wars today

Polity

Volumn 39, Issue 1, 2007, Pages 1-28

  Arnold, Kathleen ^a  

^a UNIVERSITY OF TEXAS AT SAN ANTONIO   (United States)

Author keywords

Bare life; Common good; Liberal democracy; Prerogative power; Rationality; War

Indexed keywords

EID: 33846384047     PISSN: 00323497     EISSN: 17441684     Source Type: Journal    
DOI: 10.1057/palgrave.polity.2300040     Document Type: Article

References (152)

1. Walter Benjamin, "Critique of Violence", Reflections, quoted in Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Stanford: Stanford University Press, 1998), 55.
2. See Carole Pateman, The Disorder of Women (Stanford: Stanford University Press, 1992) and Sheldon Wolin, "Democracy and the Welfare State: the Political and Theoretical Connections Between Staatsräson and Wohlfahrsstaatsräson," The Presence of the Past: Essays on the State and the Constitution (Baltimore: Johns Hopkins University Press, 1989).
3. "Locke is without doubt the only political theorist, among the major advocates of limited monarchy, to make prerogative a central element of his political theory (whatever most of his interpreters might think), and to construct from it a systematic constitutional theory of extralegal power." Pasquale Pasquino, "Locke on King's Prerogative," Political Theory 26 (April, 1998): 199.
4. Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton: Princeton University Press, 1995), 176.
5. Michel Foucault, "Truth and Power," The Foucault Reader, ed. Paul Rabinow (New York: Pantheon Books, 1984), 63.
6. Brown, States of Injury, 167.
7. See Agamben, Homo Sacer, 110.
8. This formulation may be problematic in other contexts, but I believe it is adequate for the purposes of this article.
9. Even ius soli, the allegedly more democratic of the two, has been criticized as feudal and privileging the fact of birth over free choice.
10. John Locke, Second Treatise of Government, ed. C.B. Macpherson (Cambridge: Hackett Publishing, Classic Series, 1980), 20-24, 28-30 (section 31, 36, 37, 46, 50).
11. See Richard Ashcraft, Revolutionary Politics and Locke's Two Treatises of Government (Princeton: Princeton University Press, 1986), 262-83, n151 (266-67 in particular);
12. Richard Tuck, Natural Rights Theories (Cambridge: Cambridge University Press, 1981), 170-72.
13. Richard Ashcraft, "Liberalism and the Problem of Poverty," Critical Review (1993): 11, 12.
14. Ashcraft, Critical Review, 7.
15. Michel Foucault, The History of Sexuality, Volume I: An Introduction, trans. Robert Hurley (New York: Vintage Books, 1980), 143.
16. Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1999), 70.
17. Hobbes, Leviathan, 122.
18. See Ernst H. Kantorowicz, The King's Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1997). See, for example, chs 7, 8, and 505-06.
19. See Kantorowicz, King's Two Bodies, ch. 3.
20. Agamben, Homo Sacer, 101.
21. Agamben, Homo Sacer, 105.
22. Interestingly, comparable sentiments regarding the perpetuity of sovereignty can be found in an important Supreme Court decision upholding presidential prerogative in foreign relations. In the World War II-era Curtiss-Wright decision, Justice George Sutherland stated that "Rulers come and go; governments and forms of government change; but sovereignty survives. A political society cannot endure without a supreme will somewhere. . .It results that the investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution." The president's power does not have to be approved by Congress but must be exercised "in subordination to the applicable provisions of the Constitution." Sutherland quoted in Major Fergus Paul Briggs, United States Marine Corps Reserve, "Formal Power and Prerogative: the Presidency and National Security," CSC, May 9, 1988, 〈www.globalsecurity.org/military/library/report/1988/BF.htm〉 (cited May 28, 2005), ch. 3.
23. See Agamben, Homo Sacer, 109.
24. Hobbes, Leviathan, 110.
25. Hobbes, Leviathan, 10, 11.
26. Hobbes, Leviathan, 127.
27. It should be noted that the protection of property was indeed a concern of Hobbes also, but with certain key differences from Locke's theories of property; for example, there were no absolute rights to property as the sovereign defined property rights. Only in this way could all be equal. See Ashcraft, Critical Review, 28.
28. Locke, Second Tteatise, 51 (section 94).
29. Locke, Second Treatise, 50 (section 93). This distancing is not absolute, however;
30. see Tuck, Natural Rights Theories, 172-76.
31. Wolin, "Democracy and the Welfare State," 168.
32. Wolin discusses this on 166, "Democracy and the Welfare State," for example.
33. Michel Foucault, "Governmentality," in Power, Essential Works of Foucault, 1954-1984, Vol. 3, ed. James D. Faubion, trans. Robert Hurley, et al. (New York: New Press, 1994), 216, 217.
34. Locke, Second Treatise, 86, section 164.
35. Locke, Second Treatise, 87, section 166.
36. Wolin, "Democracy and the Welfare State," 168;
37. see Pasquino, "Locke on King's Prerogative," 198-208.
38. Wolin, "Democracy and the Welfare State," 169.
39. See Federalist numbers 21, 24, 69, 74 and see Briggs, "Formal Power and Prerogative," ch. 3.
40. On this paradox, see Michael Walzer, "The Obligation to Die for the State," Obligations: Essays on Disobedience, War, and Citizenship (Cambridge: Harvard University Press, 1970);
41. Leonard Feldman, "Violent Substitutions: Hobbes, Girard and Agamben on the Sacrifices of Politics," presented at the Western Political Science Association, Portland, Oregon, March 2004.
42. Carl Friedrich, Tradition and Authority (New York and London: Praeger Publishers, 1972).
43. Although I do not wish to conflate seventeenth-century interpretations of reason and twentieth-century definitions.
44. Locke, Second Tteatise, 18, 19 (sections 26 and 28).
45. This leads to Locke's defense of colonization. See Richard Tuck, The Rights of War and Peace (Oxford and New York: Oxford University Press, 1999), 171-73.
46. See the work of Judith Shklar or Carole Pateman, for example.
47. See Locke, Second Treatise 287.
48. Locke, Second Treatise, 34.
49. Agamben, Homo Sacer, 129.
50. Thomas A. Home, Property Rights and Poverty: Political Arguments in Britain, 1605-1834 (Chapel Hill: University of North Carolina Press, 1990), 64.
51. Horne, Property Rights, 157.
52. See Richard Ashcraft, Revolutionary Politics, ch. 7, for example.
53. See Locke, "Draft of a Representation Containing a Scheme of Methods for the Employment of the Poor" and "The Fundamental Constitutions of Carolina," in Political Writings, ed. David Wootton (Indianapolis: Hackett Publishing, 2003).
54. Home, Property Rights, 64.
55. See Terence Hutchison, Before Adam Smith: the Emergence of Political Economy, 1662-1776 (Oxford: Basil Blackwell, 1988);
56. Locke, "Draft of a Representation Containing a Scheme of Methods for the Employment of the Poor" and "The Fundamental Constitutions of Carolina," in Political Writings.
57. Ashcraft, "Critical Review," 7.
58. Hutchison, Before Adam Smith, 72.
59. Locke, Second Treatise, 306.
60. Hobbes, Leviathan, 387, ch. 30.
61. Jeremy Waldron, presentation, Harvard Department of Government, Political Theory Colloquium, Spring, 2002.
62. As Richard Ashcraft would argue.
63. As Richard Tuck recognizes. See Tuck, The Rights of War and Peace, 168, 171, 172 and 177.
64. Term used by Wolin in "Democracy and the Welfare State."
65. Max Weber would call this a politics of ultimate ends, where the means are ignored. See "Politics as a Vocation," in Max Weber From Max Weber: Essays in Sociology, ed. H.H. Gerth and C. Wright Mills (New York: Oxford University Press, 1958).
66. Alexis de Tocqueville, Democracy in America, ed. J.P. Mayer, trans. George Lawrence (New York: Perennial Classics, 2000), 672.
67. De Tocqueville, Democracy, 673.
68. De Tocqueville, Democracy, 677.
69. De Tocqueville, Democracy, 686.
70. De Tocqueville, Democracy, 688.
71. Karl Marx, "Economic and Philosophic Manuscripts of 1844," in Friedrich Engels and Karl Marx, The Marx-Engels Reader, 2nd edn., ed. Robert C. Tucker (New York: W.W. Norton, 1978), 33.
72. Marx, Marx-Engels Reader, 42.
73. Marx, Marx-Engels Reader, 94.
74. Obvious exceptions: Sheldon Wolin, Wendy Brown, Richard Tuck, or Straussians (such as Harvey Mansfield). As Pasquale Pasquino states, Locke's arguments about prerogative are "a concept and a chapter that most interpreters pass over in silence." Pasquino, "Locke," 199.
75. See Rogers Brubaker, Citizenship and Nationhood in France and Germany (Cambridge: Harvard University Press, 1992), 32; ius soli is ascriptive and challenges the liberal notion of consent.
76. See, for example, Federalist papers #34 or #69, by Alexander Hamilton; also, Briggs, "Formal Power and Prerogative"; Nasser Hussain and Austin Sarat, "The Literary Life of Clemency: Pardon Tales in the Contemporary United States," presented at the Association for the Study of Law, Culture, and Humanities," March, 2005, Austin, Texas;
77. and Jeffery Alan Smith, War and Press Freedom: the Problem of Prerogative (Milwaukee: University of Wisconsin, 1999).
78. See Bonnie Honig, Democracy and the Foreigner (Princeton: Princeton University Press, 2001), 92-98.
79. See Federalist number 24 on the United States' "natural enemies."
80. Of course, as with ancient Greece, the most democratic circumstances coexisted with the most non-democratic: slavery, genocidal practices towards Native Americans, the exclusion of women, racism, incredibly harsh treatment of criminals and so on.
81. Briggs, "Formal Power and Prerogative" ch. 2.
82. See Briggs, "Formal Power and Prerogative," ch. 2.
83. For example, see Alexander Hamilton, Federalist number 69, March 14, 1788.
84. See Giorgio Agamben's discussion of Lincoln in State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005), 20. This transformation was earlier predicted by De Tocqueville.
85. See Agamben on Lincoln, State of Exception, ch. 1 and Briggs on an activist presidency and the legislative acts following the Nixon presidency that attempted to curb future presidents' actions (and largely failed), ch. 1.
86. See James T. Patterson, America's Struggle Against Poverty, 1900-1985 (Cambridge: Harvard University, 1986), chs 2 and 4.
87. Weber, From Max Weber, 334.
88. That the exercise of prerogative is not conceived of as the president's power alone is evident in contemporary treatments of the subject. For example, on states' governors exercising the right to commute death sentences, see Hussain and Sarat, "The Literary Life of Clemency";
89. on the Supreme Court's exercise of prerogative, see Rogers Smith, "Bush vs Gore," in "Roundtable Discussion: the Uses and Abuses of the Constitution, Special Issue on the Constitution," Common Place 2 (July 2002), 〈www.common-place.org〉 (cited May 28, 2005).
90. Agamben, State of Exception, ch. 1.
91. Nevertheless, this does not produce a black and white situation of law/outside of the law but a juridically undecidable situation. See Agamben, State of Exception, 21.
92. The mistake that is made is to call this absolute power in Carl Schmitt's sense of a dictator - both Agamben, in State of Exception, and Pasquino discuss how this power can still be called prerogative or the state of exception despite its difference from monarchical prerogative and dictatorship in Schmitt's conception. See Pasquino, "Locke"; Giorgio Agamben, State of Exception.
93. For example, the fiscal irrationality of criminalizing the homeless despite the fact that it often costs three times as much as simply providing housing subsidies and welfare.
94. See Daphne Eviatar, "Nowhere Land," Boston Globe, April 18, 2004, E4.
95. Eviatar, "Nowhere Land," E4.
96. See Agamben, State of Exception, ch. 1;
97. Eyal Press, "Tortured Logic," amnestynou), Summer, 2003;
98. Charlie Savage, "Justices Struggle to Find Balance on Detainee Policy," Boston Globe, April 29, 2004, A3;
99. "Rationalizing Torture," Boston Globe;
100. Dana Priest, Joe Stephens, "Harsh Questioning Methods Were OK'd for Cuba Prison," Boston Globe, May 9, 2004, A20.
101. See David Martin,"With a Whisper, Not a Bang," San Antonio Current, December 24, 2003, 〈www.sacurrent.com〉, (cited December 16, 2004). Measures continue to be passed as of this writing.
102. See Bryan Bender, "Activists Urge Probe of US Detention Policies," Boston Globe, June 17, 2004, A2.
103. Scott Higham, "Camp Memos Tell of Detainees' Fear," Boston Globe, June 13, 2004, A3.
104. See "Rationalizing Torture," Boston Globe, June 13, 2004, H10.
105. See Beverley Lumpkin, "PatriotAct Redux," abcnews.com, February 21, 2003, 〈abcnews.go.com/sections/us/HallsOf Justice〉 (cited July 7, 2004);
106. Shelley Murphy, "Prosecutors Defend 'Sneak and Peek' Warrant," Boston Globe, October 30, 2003, B3.
107. As Agamben states, "The originary political relation is marked by this zone of indistinction in which the life of the exile. . .borders on the life of homo sacer who can be killed but not sacrificed. This relation is more original than Schmittian opposition between friend and enemy, fellow citizen and foreigner," Homo Sacer, 110.
108. William Branigin, Gabriel Escobar, "INS Deportations Rising," Boston Globe, April 25, 1999, A19;
109. John Budris, "Jailed Immigrant a Man Without a Country," Boston Globe, May 9, 1999, B6;
110. Nancy Gertner, Daniel Kanstroom, "The Recent Spotlight on the INS Failed to Reveal its Dark Side," Boston Globe, May 21, 2000, E1, E3;
111. David L. Marcus, "Three Times and Out," Boston Globe, October 14, 1998, A1;
112. Patrick J. McDonnell, "Judges Rule Against Indefinite INS Jailings," Boston Globe, July 12, 1999, A4;
113. Teresa Mears, "As INS Jails Fill, a Release Plan Surfaces," Boston Globe, February 14, 1999, A16;
114. Teresa Mears, "The Woes of Immigrants Forced to Emigrate," Boston Globe, March 26, 2000, A6;
115. "Secret Trials in America," Boston Globe, December 4, 1999, A18;
116. "US Deportations at Record Level," Boston Globe, May 14, 1997, A3.
117. See Viet D. Dinh, "Law and Asylum," in Arguing Immigration, ed. Nicolaus Mills (New York: Touchstone, 1994);
118. Jerry Seper, "U.S. Prepares for Haitian refugees," The Washington Times, February 24, 2004, 〈www.washingtontimes.com〉 (cited May 21, 2004).
119. See Monica Rhor, "Unwelcome Turn," Boston Globe, August 7, 2003, B1;
120. McDonnell, "Judges Rule Against Indefinite INS Jailings";
121. "US Frees Ethiopian Jew Held Nine Years," Boston Globe, May 24, 1999, A6;
122. Budris, B6; and David Oliver Relin, "Who Will Stand Up for Them?," Parade Magazine, August 4, 2002.
123. See Lisa Getter, Jonathan Peterson, "Speedier Rate of Deportation Rulings Assailed," Los Angeles Times, January 5, 2003, 〈www.latimes.com〉 (cited January 1, 2005);
124. Carol J. Williams, "Rapid US Deportation Forces New Route on Haitian Refugees," Boston Globe, July 13, 2003, A11;
125. Branigin, Escobar, "INS Deportations Rising."
126. See Vickie Chachere, "Fla. School Trustees Back Bid to Fire Palestinian Professor," Boston Globe, December 20, 2001, A25;
127. Judith Graham, "Congressman Wants Deportation of Immigrant Student," Boston Sunday Globe, September 29, 2002, A15;
128. Jane Wardell, "Amnesty Says Rights Are Casualty in War on Terrorism," Boston Globe, May 29, 2003, A20.
129. See Sheldon Wolin, "Fear is Being Used as Re-election Tactic," Common Dreams News Center, May 10, 2004, 〈www.commondreams.org〉 (cited May 10, 2004);
130. Adam Green, "Citizen Spies" New Yorker, August 5, 2002, 〈www.newyorker.com〉 (cited May 31, 2004);
131. Curt Anderson, "Ashcroft Expands FBI Arrest Powers," Boston Globe, March 20, 2003, B2;
132. Wayne Parry, "Man Freed After Almost 2 Years in Custody," Boston Globe, April 15, 2004, A7;
133. Curt Anderson, "Bush Seeks to Broaden US Powers with Special Subpoenas," Boston Globe, September 14, 2003, A19.
134. See Giorgio Agamben, "Non au tatouage biopolitique," Le Monde, October 10, 2004, 〈www.lemonde.fr〉 (cited January 31, 2004).
135. Harvard Law Review Association, "Note: Winning the War on Drugs: A 'Second Chance' for Nonviolent Offenders," Harvard Law Review: 113 (April, 2000);
136. Holly Sklar, "Reinforcing Racism with the War on Drugs," ZMagazine, December, 1995;
137. "Punishment and Prejudice: Racial Disparities in the War on Drugs," Human Rights Watch: 12, no. 2, May 2000, 〈hrw.org〉 (cited January 3, 2005);
138. Neal Pierce, "International Condemnation for Our 'War on Drugs,"' August 28, 2001, crimelynx, 〈www.crimelynx.com/intcon. html〉 (cited January 3, 2005).
139. David Garland, The Culture of Control (Chicago: University of Chicago Press, 2001), 132.
140. See Glenn C. Loury, "The Conservative Line on Race," The Atlantic, November, 1997, 〈www.theatlantic.com/issues/97nov/race. htm〉 (cited May 10, 2004), for example.
141. See Garland, Culture of Control, 132-35.
142. Harvard Law Review Association, "Note: Winning the War on Drugs."
143. See Harvard Law Review Association, "Note: Winning the War on Drugs."
144. Sklar, "Reinforcing Racism."
145. Pierce, "International Condemnation."
146. See Joseph Barnes, "Book Review: The End of Racism by Dinesh D'Souza," December, 1995, ZMagazine 〈www.zmag.org/zmag/articles/ dec95reviews.htm〉 (cited May 10, 2004);
147. Adam Miller, "Professors of Hate," Rolling Stone 693 (New York: October 20, 1994);
148. Executive Summary, "Wrong Then, Wrong Now: Racial Profiling Before and After September 11, 2001," May 10, 1994, 〈www.civilrights.org/ publications/reports/racial_profiling/〉 (cited May 10, 2004), Amnesty International's website for updated information; (www.amnestyusa.org);
149. Deborah Ramirez, Jack McDevitt, Amy Farrell, monograph: "A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned," sponsored by the U.S. Department of Justice (Wheaton: Northwestern University, November 2000);
150. Mikal Muharrar, "Media Blackface: 'Racial Profiling' in News Reporting," September/October 1998 〈www.fair.org/extra/9809/media- blackface.html〉 (cited May 10, 2004);
151. Executive Summary, "Massachusetts Racial and Gender Profiling Final Report," (Boston: Northeastern University, Institute on Race and Justice, May 4, 2004);
152. American Civil Liberties Union (ACLU), "Racial Equality: Racial Profiling - Press Releases," n.d. 〈www.aclu.org/RacialEquality/ RacialEqualitylist.cfm?c=133〉 (cited May 10, 2004).