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A Constitutional Framework: The Relationship Of Supreme Power And Individual Rights In The Second Treatise

2115 words - 9 pages

A Constitutional Framework: The Relationship of Supreme Power and Individual Rights in the Second Treatise

The supremacy of legislative power is a deceptive phrase in the Second Treatise. If one were to follow Locke’s blueprint for the original formation of the commonwealth closely, it would become apparent that supreme power in political society rests with the people, not the legislature, because ultimately, there must be a constitution that is written by the people. In order to most clearly see this, a distinction must be drawn between the basic political society and the higher level institution of government, and the events that take place in each sphere must be differentiated. In ...view middle of the document...

These first positive laws do not have to be extensive or complex, but they must exist in some form, or how can men know, for example, to decide upon a government by majority rather than by unanimous approval? There is no natural law by which to make this choice. It may seem that, because the legislature is the supreme law-giving body, the legislative power precedes law in Locke’s pattern of commonwealth formation, but this is misleading.

In fact, Locke alludes several times to laws which precede the legislature itself, arguing that “the first and fundamental positive law of all commonwealths is the establishing of the legislative power…” (XI, 134). Once established, the legislative must not be allowed to exercise what Locke calls “arbitrary” power over the citizens, but this raises a problem of distinction—if the legislative has supreme power to make laws, which laws promulgated by a legislature are properly valid and which are arbitrary? There must be some pre-legislative standard set forth which can be used to distinguish between the two, and indeed, Locke implies the necessity of a constitution when he writes that, “Mankind will be in a far worse condition than in the state of nature, if they shall have…[a legislative] to force them to obey…the exorbitant decrees of their sudden thoughts…without having any measure set down which may guide and justify their actions” (XI, 137). The solution is “established and promulgated laws; that both the people…and the rulers too [will be] kept within their bounds” (XI, 137). Laws regulating the law-making powers of the rulers must by definition precede the establishment of the legislative, since to rely on the rulers themselves to establish guidelines limiting their own power is hardly different from expecting them to fairly and objectively be the judges of their own suits. After all, the very reason that Locke calls for a “measure…which may guide and justify” the laws which the legislative creates is because he assumes that, given the opportunity, it will cease to serve the interests of the people and begin to serve its own interests instead (XI, 137).

Thus, in order to satisfy Locke’s conditions for a just and legitimate government, it is necessary that something like a constitutional convention take place in that transition state between the initial entrance into political society and the establishment of the society’s government. Since the resulting constitution or common law ultimately restricts the power of the legislative, it is in fact the people who wrote it who have supreme power. It is power in this transition state that Locke refers to when he ambiguously argues that, “there remains still in the people a supreme power to remove or alter the legislative…” (XIII, 149). Once basic boundaries for the government are created, and a government is established by the majority according to these precepts, then the legislative takes over as the supreme power in the political society, though it is...

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