Locke: Federative Power, and Contemporary US Democratic Retrenchment

• In Event: States of Exception

Abstract

A key puzzle in the United States is how a liberal representative democracy could also legitimate the use of certain war powers and/or powers over foreigners that were legal but directly at odds with the rule of law and democratic precepts including equality and inalienable rights? I propose that we can understand this puzzle not as a contradiction but as something anticipated by earlier English theorists. Proponents of representative government were revolutionary in their challenges to divine right power, but they importantly retained prerogative power, granted in a new context. Briefly, prerogative power is the legal suspension of the law and can include extraordinary actions taken by the government during economic crisis, food or fuel shortages, or military conflict. Divine right monarchs had abused this power through issuing edicts of toleration or intolerance of religious dissenters. Thinkers like John Locke objected to these edicts because they were illegitimate and arbitrary. However, Locke held that the use of prerogative power by elected leaders in a commonwealth based on inalienable rights and consent would mean that any discretionary power exercised over foreigners would be rational, prudent, and for the good of all. Prerogative power deployed by an elected leader would be guided by a rational assessment of necessity and not the whims of an isolated, patriarchal decisionmaker.
In 17th c England, there were at least two key conflicts that led to a situation amounting to continuous war. First, the monarchy began to argue that its power was divinely ordained and that the monarch had absolute power over their subjects. Divine right was rooted in the claim that the monarchical family descended from Adam and therefore, the king was the “father” of the English commonwealth. Patriarchy indicated god-willed inequality, absolute subservience of children/subjects, and the notion that politics were not separate from the family but rather the outer-shell of a nested hierarchy of power. These claims were viewed as bogus by thinkers like Locke.
A second issue was daily religious conflict and intolerance towards those with different or no religious viewpoints. Locke broadly repudiated arbitrary power, the absence of a written law accessible to everyone, and the notion that a familial model could serve as the basis for politics. The arbitrary basis of religious toleration often created chaos as political membership grew and constricted with the tide of public sentiment and members of the public felt emboldened to harass and attack religious dissenters. Intolerance resulted in mass detention, torture, and/or deportation of thousands of religious dissenters. Locke called for a more rational basis for political power based on the common good, which presumed that all people were equal and that any ruler was simply elected to power but could not wield absolute authority.
Nevertheless, he proposed two forms of power that arguably reformed the issues he identified rather than eradicating them: the discretionary treatment of resident foreigners (federative power) and a broader power of the executive office to suspend the law and act outside of the rule of law for an unlimited time (prerogative power). Federative power is the power of war and peace, alliances, and relations with other communities. Although the executive office was intended to merely execute the rule of law, Locke believe this representative should have federative power for convenience. This power draws on an administrator’s “prudence” and “wisdom” rather than the rule of law, making decisions based on foreign relations rather than what we could call constitutional guarantees today.
Locke did not conceive of the powers as exercised only in times of emergency: the federative power is a routine exercise of pure discretion. In this way, the purely discretionary authority over resident foreigners is a subset of prerogative power which is (again) the legal suspension of the law by the executive authority. When exercising prerogative and federative power, the executive no longer merely executes the law but is now the chief decision maker. I briefly conclude by analyzing how this seemingly contradictory set of proposals explains the stark division between US constitutional law and migration policy, which is extra-constitutional. As I explain, these are not two distinct realms of governance but rather the latter seeps into the former, helping to explain how even moderate, reformist politics leads to democratic retrenchment. In turn, understanding the history of these powers helps to re-imagine more truly democratic possibilities.

Author

• Kathleen R. Arnold, DePaul University