Can the Prince Really Be Tamed? Executive Prerogative, Popular Apathy, and the Constitutional Frame in Locke'sSecond Treatise

Abstract

Even as he recommends it as the extra-constitutional solution to the inefficiencies and insufficiencies of legislative constitutionalism, Locke'sSecond Treatiseis far more aware of the dangers of executive prerogative than the more optimistic accounts in the recent scholarship have appreciated, making Locke pessimistic about the permanent sustenance of legislative constitutionalism. This pessimism stems from Locke's recognition that the people are far too constitutionally passive for the vigilance essential to ‘umpire’ well the necessity of executive action outside the laws. In fact, liberalism itself can contribute to such passivity: the people are content to allow an executive to act with a significant degree of discretion outside the laws so long as those actions do not interfere with their short-term interest in security and prosperity. Understanding Locke's pessimism regarding popular vigilance casts into new light his argument for a legislative constitutionalism based on fundamental laws that establish a clear separation of powers. Such fundamental laws provide legislative elites with the constitutional ‘signals’ by which they can alert the otherwise slumbering people about an executive intent on usurpation and tyranny.

Prehistoric Myths in Modern Political Philosophy

“…The state not only has to provide people with improved welfare; it also has to protect their natural rights better than they could themselves in the state of nature. No matter how much greater their welfare might be in state society, Locke believed people would only give up their right to protect their rights themselves if the government does it better ( §87- §90, §131) (Baldwin 1982;Frye 2004;Kleinerman 2007).…”

An Open Letter to "Dirty Hands" Theorists from a Public Manager

“…160). In Federalist 70, Hamilton argued that the U.S. president should be an "energetic" executive who can act unilaterally for the public good, without checks and balances (Constitution Society 2012a; for more on Locke and presidential prerogative, see Kleinerman 2007;Langston and Lind 1991;Mattie 2005;Scigliano 1989). …”

Emergency Judgment: Carl Schmitt, John Locke, and the Paradox of Prerogative

“…This is one way to understand what Locke himself is doing in the Second Treatise ; he is showing his contemporaries why they should resist the tyranny of their king even if they cannot yet feel it. In a similar vein, Kleinerman (2007) argues that Locke's analysis could be used to defend the importance of a written constitution as a type of frame through which a people can be made to “see and feel” tyranny. A constitution provides boundaries to remind citizens what legitimate governance should look and feel like.…”

“…4 4 Corbett (2006) erases this distinction by arguing that prerogative is extralegal and therefore extraconstitutional for Locke. I take Kleinerman (2007) and Ward (2005) to be pointing toward this distinction between exacting legality and constitutional legitimacy. …”