Locke: Four Limitations to Legislative Power


We’re all aware that our state governments—surprisingly and refreshingly not so much our federal government—are and have been dramatically overstepping their Constitutional boundaries of power during this coronavirus situtation.

But where does this gut level reaction in us against the government’s expansion of power come from? Let’s ground the reason for such a reaction in some theory. It’s better to really know why government’s overreach is a problem than to blindly claim it’s a problem without any theoretical footing.

John Locke, one of the most influential political philosophers on American politics and American political theory, laid out four ways that the government can overstep so egregiously that it has completely abandoned its reason for existence in the first place.

And remember… according to Locke, the primary, ultimate reason for government’s existence is the protection of private property. Also remember, he focuses almost exclusively on the power of the legislature since it is the legislature that makes laws to protect the people they represent.

So…without further ado.

One: The Laws Must Be Impartial

Locke says “They [the Legislature] are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at Court, and the countryman at plough.”

The legislature cannot and should not make laws that favor any one group of people. They are required by the laws of nature to make laws that benefit the people they represent. This was particularly important in Locke’s time when royalty was given a pass. If you notice, in the United States, we have a prevailing expectation that any and everyone should be accountable to the law, no matter what their “status”. As soon as our legislature begins to violate these principles, they are violating their very reason for existence.


A textbook I use gives an example:

A classical study compared how children aged 10-14 in the United States, Great Britain, and France responded to a series of questions about democracy.

“One day the President (substitute the Queen in England, President of the Republic in France) was driving his car to a meeting. Because he was late, he was driving very fast. The police stopped the car. Finish the story.”

British children said the queen would not be punished.

French children declared that the president would not be reprimanded.

American children were most likely to say that the president would be fined or ticketed, just like any other person should be. Interesting right? We’ve adopted Locke’s ideal as part of our American ideals since the beginning of our country. Let’s not abandon them now.

Two: The Law Must Be For The Good of the People

Locke says: “These laws also ought to be designed for no other end ultimately but the good of the people.”

Again, if the people ever feel that the laws being made are no longer good for the people, the legislature has stopped doing its single job—protecting our private property. “The Good of the People”, of course, is a bit more ambiguous, but if looked at through the lens of the rest of his theory, makes perfect sense. As soon as the government stops protecting our private property from each other by violating that property itself, it has gravely stepped outside “the good of the people”.

Three: No Taxation Without Representation


“They must not raise taxes on the property of the people without the consent of the people given by themselves or their deputies. And this properly concerns only such governments where the legislative is always in being, or at least where the people have not reserved any part of the legislative to deputies, to be from time to time chosen by themselves.”

This is perhaps most relevant and important for the American Revolution and should sound familiar to you. If the citizens are taxed to the point that their own property is being violated by government, or taxed without representation, the government has again stepped outside the boundaries of its purpose.

If the legislature ever stops protecting private property, which is the end of government, then it is perfectly justifiable for the people to look to establish a new government. And remember, for Locke, there is no difference between state and federal government…if government violates its purpose for being created, it must be treated as a government that has violated such a purpose. That goes for state and federal governments.

Four: Delegated Power Cannot Be Delegated

“Legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have.”

Since the lawmaking power that the legislature has is not their own power but power given to them by the people who put them in their position of power, the legislature cannot give that lawmaking power away.


For instance, if the executive or judicial branch starts to write law in any capacity (which, in case you didn’t know—they do, both at the state and federal levels) or if the legislature gives their lawmaking power to any other portion of government, they have breached their contract with the people and the people have the justification to throw out and replace this government.

Conclusion

I’m not advocating for an overthrow of state governments, but I do want to remind people that we have a job to do to keep our governments accountable to their jobs.

These are simple yet foundational theoretical expectations that shouldn’t just exist for our federal government BUT also our state governments. They might not be held accountable to the federal constitution but should be held responsible to the theoretical foundations upon which they were based.

This is information for us, as citizens, to know and for our state governments to follow.

The Liberty Belle

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