The Extraconstitutionality of Lockean Prerogative

Review of Politics

Volumn 68, Issue 3, 2006, Pages 428-448

  Corbett, Ross J ^a  

^a NONE

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EID: 43249176295     PISSN: 00346705     EISSN: 17486858     Source Type: Journal    
DOI: 10.1017/S0034670506000209     Document Type: Article

References (41)

1. Shklar, Legalism (Cambridge: Harvard University Press, 1964), 1.
2. All parenthetical references are to John Locke Two Treatises of Government, ec Laslett, student ed. (Cambridge: Cambridge University Press, 1988), cited by and section.
3. Clement Fatovic, “Constitutional and Presidential Prerogative: Jeffersonian and Hamiltonian Perspectives,” American Journal of Political Science 43, no. 3 (July 2004): 429–444, esp. 439-40;
4. see also Fatovic, “Constitutionalism and Contingency: Locke's Theory of Prerogative,” History of Political Thought 25, no. 2 (Summer 2004): 276–297.
5. Sean Mattie, “Prerogative and the Rule of Law in John Locke and the Lincoln Presidency,” Review of Politics 67, no. 1 (Winter 2005): 77–111.
6. David Weaver, “Locke, Leadership, and the Federalist,” American Journal of Political Science 41, no. 2 (April 1997): 420–446.
7. Robert Faulkner, “The First Liberal Democrat: Locke's Popular Government,” Review of Politics 63, no. 1 (Winter 2001): 5-39, esp. 12-13, 29–33.
8. Thomas Langston and Michael Lind also conclude that “any prerogative of the President to act in the silence of the laws, or against the laws, exists only at the sufferance of Congress,” but they do not agree that all prerogative is conventional; “John Locke and the Limits of Presidential Prerogative,” Polity 24, no. 1 (Fall 1991): 49–68, 68.
9. Fatovic, “Constitutionalism and Contingency.”
10. Mattie, “Prerogative and the Rule of Law,” esp. 85–88.
11. Josephson, The Great Art of Government: Locke's Use of Consent (Lawrence, Kansas: University Press of Kansas, 2002), esp. 231–243.
12. Mansfield, Taming the Prince: The Ambivalence of Modern Executive Power (New York: The Free Press, 1989; paperback, Baltimore: Johns Hopkins Press, 1993), esp. 181–211.
13. See also Pasquale Pasquino, “Locke on King's Prerogative,” Political Theory 26, no. 2 (April 1998): 198–208.
14. Mansfield, Taming the Prince, esp. 13–20; see also note 36, below, and context.
15. For this distinction, see Pierre Schlag, “Rules and Standards,” UCLA Law Review 33 (December 1985): 379–429
16. Cass Sunstein, “Problems with Rules,” California Law Review 83 (July 1995): 953–1023.
17. See Mansfield, Taming the Prince, 186, 200.
18. See David Resnick, “Locke and the Rejection of the Ancient Constitution,” Political Theory 12, no. 1 (February 1984): 97–114.
19. What it reveals is the subject of some debate. See John Dunn, The Political Thought of John Locke (Cambridge: Cambridge University Press, 1969), esp. 148–156
20. Pasquino, “Locke on King's Prerogative.”
21. See Robert Filmer, “Patriarcha,” in Patriarcha and Other Writings, ed. Johann P. Sommerville (Cambridge: Cambridge University Press, 1991): 1–68, esp. 44-5.
22. See Samuel Rutherford, Lex Rex: The Law and the Prince (London: 1644
23. Early English Books Online [eebo.chadwyck.com; hereafter EEBO], Wing R2386), 218 ff;
24. Anon., “Vox Populi: Or the Peoples Claim to Their Parliament's Sitting,” Reprinted in State Tracts, vol. 2 (London: 1692; EEBO, Wing S5331): 219–224, 219.
25. Cf. de Legibus III. iii; see also Rutherford, Lex Rex, 218 ff
26. John Bellamie, A Iustification of “The City Remonstrance” and Its Vindication (London: 1646; EEBO, Wing B1814), 34
27. Thomas Hobbes, Elements of Law, c. 28, §1
28. Algernon Sidney, Discourses Concerning Government (London: 1698; EEBO, Wing S3761), 90, 252.
29. Faulkner attempts to address this difficulty as well, but is forced to understate the limits that government by consent places on the use of political power; cf. “First Liberal Democrat,” 12–4.
30. Weaver, “Leadership, Locke, and the Federalist,” esp. 426, 430, 433-35.
31. Langston and Lind, “John Locke and the Limits of Presidential Prerogative.”
32. This is only a problem if consent implies more than bare acquiescence, or if government by consent means something more than a submissive population. This is denied by Faulkner, “First Liberal Democrat,” 13; see also Martin Seliger, “Locke's Theory of Revolutionary Action,” Western Political Quarterly 16, no. 3 (Sep. 1963): 548–568.
33. But every people has submitted to those that rule them (cf. 1: 43; Charles Tarlton, “A Rope of Sand: Interpreting Locke's ‘First Treatise of Government’,” The Historical Journal 21, no. 1 [1978]: 43–73, esp. 56-59). A normatively interesting consensual government demands a bit more (cf. II 186). Otherwise, every government is legitimate: Locke wouldn't be the correction of Hobbes on Hobbesian principles that many scholars see him as—he would be Hobbes, albeit with better spin.
34. Ex Parte Milligan, 71 U.S. (4 Wall.) 2, 121 (1866).
35. See Langston and Lind, “John Locke and the Limits of Presidential Prerogative,” esp. 59–60.
36. Cox, Locke on War and Peace (Oxford: Clarendon Press, 1960), esp. 128–130
37. Faulkner, “First Liberal Democrat,” esp. 29–36
38. Fatovic, “Constitutionalism and Contingency,” esp. 280–287 Mattie calls prerogative both “executive power” and a “natural power,” “Prerogative and the Rule of Law,” esp. 86. It can at times appear that Mansfield also interprets Locke as blending prerogative and executive power. He is clear, however, that what Locke expands is the power available to the executive, not his definition of executive power per se: “Executive power is subordinate, but the executive person may not be;” Taming the Prince, 201. It is instructive to contrast Mansfield's procedure with Cox's. Cox melts the federative, executive, and prerogative powers together, going so far as to quote passages concerning one to make a point about another; cf. Locke on War and Peace, 127. Mansfield also depicts Locke's discussion of the federative power as the entering wedge in the argument for broad extralegal discretion. Yet even if the “practical alliance … observed between the executive and federative powers … overrides their theoretical distinctness,” they do remain theoretically distinct for Mansfield; Taming the Prince, 201. It is this distinction between executive power and prerogative that permits the modern executive to have the formal weakness that, when contrasted with its informal strength accounts for its ambivalence.
39. William King's 1692 The State of the Protestants of Ireland explicitly states just this (EEBO, Wing K538, 67-68). Langston and Lind rely on this fact for their assertion that the Constitution does not grant the President any “antilegal prerogative” above that of any other citizen; “John Locke and the Limits of Presidential Prerogative,” 59–60, 66.
40. On the rise, fall, and possible resurgence of the nondelegation doctrine, see Laurence Tribe, American Constitutional Law, 3d ed. (New York: Foundation Press, 2000), 1: 977–1011, esp. 978-79, n. 4.
41. Fatovic, “Constitutionalism and Contingency,” 296.