Locke: Four Limitations to Legislative Power

white house
Photo by Aaron Kittredge on Pexels.com

We’re all aware that our state and federal government are and have been dramatically overstepping their Constitutional boundaries of power–their job descriptions via the Constitution.

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

flag of america

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

white house

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

man holding us flag

“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.

When people say that it’s a problem for the courts to “legislate from the bench” or for bureaucracy to make all the rules, this is why that’s a problem.

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

4 thoughts on “Locke: Four Limitations to Legislative Power”

  1. Our political leaders in government feel that their main function is promoting governments own growth !

    While the laws attributed to John Locke mentioned above are extremely important the people who we entrust with running the government are intentionally being deceptive by manipulating the statistics to make it look like more government is needed. We see statistics all the time on unemployment, poverty levels, census, homelessness etc. that the government relies on to make policy and allocate funds. Yet who puts these statistics out? THE GOVERNMENT! Isn’t it about time we had an impartial, independent entity determine what these statistics are instead of people attempting to justify their existence?

    Secondly it is the practice of our government to outsource not only to the administrative state but to private entities that the results will directly affect. It seems that the EPA was sponsoring a drive on Facebook and Twitter to promote a clean water rule in conjunction with the Sierra Club. It was literally lobbying itself on behalf of itself. LEGISLATIVE POWERS ARE NOT YOURS TO GIVE AWAY! Neither to the administrative state and especially not to private entities. The New York Times article below gives a clearer picture of what I am saying.

    https://www.nytimes.com/2015/05/19/us/critics-hear-epas-voice-in-public-comments.html?_r=0

  2. Upon further re-reading your above essay it dawned on me that you answered your own question from the previous essay on why America never adopted aristocrats.

    A book which I am currently reading (Jefferson and Hamilton by John Ferling) tells how Thomas Jefferson realized “Britian groans under a vicious patrician order and that Virginia has come to resemble it with its handful of great families dominating the Virginia legislature”. “The interest of society cannot be truly served as long as there is an aristocracy founded on wealth and birth, without either virtue or talent, that predominated and perpetuated itself through the transmission of property from generation to generation.” “Believing the possession of land (property) was the key not merely to individual freedom and the pursuit of happiness but also to the very survival of an American republic…………..”

  3. The overstepping and over reach , I have commented on BIG local GOVERNMENT in rural northern Michigan cronyism government in RED SHEEP , to get republican votes , these red sheep go after dems on lock downs and ZOOM calls and are still mandating and staying in ZOOM rooms themselves , when true Americans stand up to overstepping BIG local Government false charges and restraining orders , Michigan marxist boards like Virginia school boards , only in this county they break the law intentionally and NO one does or says anything ? those that are innocent have more and more false charges and claims against them , a local board is a LEGISLATIVE body overstepping with lawe breaking lawyers to support them .

Leave a Reply

Scroll to Top