The Lockean Constitution: separation of powers and the limits of prerogative.

• Author: Jenkins, David

In the post-9/11 era, many legal scholars have advanced theories of constitutional law that make allowance for unreviewable discretionary decision making by the executive branch, particularly in the context of the "war on terror". Drawing on Lockean constitutional theory for normative support, the author develops an alternative constitutional model that addresses the problem of discretionary executive power. Locke's constitution divides political power between the executive and the legislature, with the latter checking and balancing the former. Both the executive and the legislature have a fiduciary trust to act for the public good. Locke closely links the public good and the constitution such that any breach of the constitution is per se a breach of the public good. Therefore, unreviewable decision making by the executive always violates its trust because it is a breach of the constitution. After setting out Locke's theory of separation of powers, the author presents a modified model that makes the judiciary, in addition to the legislature, responsible for the accountability of executive decision makers. Although the executive retains its prerogative power, it must always remain accountable to the legislature and the courts, even in emergencies.

Depuis le 11 septembre, de nombreux juristes ont avance des theories de droit constitutionnel qui permettent a l'executif un pouvoir discretionnaire incontro1able, particulierement dans le contexte de la >. S'appuyant sur le soutien normatif de la theorie constitutionnelle de Locke, l'auteur developpe un modele constitutionnel alternatif qui aborde le probleme du pouvoir executif discretionnaire. La constitution de Locke repartit le pouvoir politique entre l'executif et le legislatif, avec le pouvoir legislatif controlant le pouvoir executif. Les deux branches ont un obligation fiduciaire d'agir pour le bien public. Locke lie le bien public et la constitution d'une maniere etroite, faisant en sorte que toute violation de la constitution represente en soi une violation du bien public. Tout decision incontro1able prise par l'executif viole donc toujours son obligation fiduciaire en portant atteinte a la constitution. Apres avoir expose la theorie de Locke sur la separation des pouvoirs, l'auteur present un modele modifie qui rend l'appareil judiciaire, en plus de la legislature, responsable de la responsabilisation de l'executif. Bien que l'executif conserve sa prerogative, il doit toujours rester responsable devant le parlement et les tribunaux, meme en cas d'urgence.

Introduction I. The Lockean Constitution A. A Constitution of Structure B. The Problem of Prerogative C. The Legislative Check II. Judicial Power A. A Constitution of Law B. Modifying Locke C Popular Sovereignty and the Judicial Trust Conclusion Introduction

Executive power is the predicament of our times. Although the common law nations have long sought to prevent unchecked executive authority, this problem has re-emerged at the forefront of legal controversies in the long decade since "9/11". During these years, there have been more frequent and powerful suggestions that the executive branch must be free to make decisions beyond the scrutiny of the legislature or the courts. These suggestions have been made in response to a number of perceived social problems (such as crime and illegal immigration), but they have been most vociferously made in the context of the "war on terror". There, some scholars have expressed constitutional theories that sit in tension (or perhaps outright conflict) with liberal values.

This article particularly targets and roundly rejects those constitutional theories that support sweeping and institutionally unaccountable executive powers in times of crisis. It is true that exceptional executive decisions in the absence of or even contrary to law might be necessary on extraordinary occasions. Such decisions, however, must remain accountable in some way to the legislature or the courts; there is no room in a liberal constitution for exclusive, unilateral spheres of executive power, where the will of the one must always prevail. In making this argument, this article turns to the ideas of John Locke for a constitutional model in which executive power must always remain accountable to the legislature and courts, even in emergencies.

The Lockean constitution, broadly conceived, is a sophisticated system for the separation of powers. Locke divided political power between an executive and legislature, each having independent fiduciary trusts to act for the public good. Because the public good is politically contestable, Locke closely linked it to a structural system for its rational realization. The substantive goals or requirements of the resulting trust, which resides in those wielding political power, are likewise circumstantially dependent and open for debate. However, that trust always requires fidelity to constitutional checks and balances that allow institutional struggles over the meaning of the public good and restrain power, especially unitary executive power. In Locke's dualistic model, which is the forerunner to modern separation of powers theories, the legislature is the sole or primary institutional check on executive power. An attempt by the executive to undermine the legislature's independence or oversight, or otherwise to slip the restraints it puts upon him, is tantamount to an attempt to wield absolute power. Absolute power per se violates the public good and thereby the executive's trust, because it runs too high of a risk of miscalculation or arbitrariness. Although Locke argued that the executive has a prerogative power to make exceptional decisions in emergencies, decisions without any institutional accountability whatsoever are not prerogative ones at all, as properly understood. To the contrary, this sort of executive overreaching manifests an illegitimate exercise of power, which in extreme circumstances threatens tyranny and invites legislative or popular resistance. Furthermore, even in those common law countries where parliamentary sovereignty prevails, the legislature is no longer the only check. There are the courts. A practical theory of the Lockean constitution must somehow account for the judiciary's historical development into an independent, third branch of government. This article therefore expands on Locke's original structural model by including them in the constitutional architecture. It argues that the Lockean constitution not only easily accommodates the judiciary, but normatively justifies its review of executive decisions--even prerogative ones.

Before continuing, a disclaimer is in order. Some readers will criticize this article as assuming too much and saying too little, because it neither delves into the full complexities and intellectual history of Locke's philosophy nor considers the different legal systems and political cultures of the common law countries. These are, of course, important areas worth further attention, in the context of putting the Lockean constitution to work. However, this article is not strictly a piece on political philosophy or national law, but a normative argument for a particular liberal constitutional model. It addresses the problem of executive power in those jurisdictions sharing the common law heritage, and selectively draws upon the Lockean strands within that heritage. It prioritizes the Lockean influence over other ones, such as Hobbesean or classical republicanism. For these same reasons, this article's methodology relies heavily upon the work of political scientists and especially historians, who have studied Locke's philosophy and its influences on the constitutional development of the common law nations. As a law article, then, this piece seeks to do more than understand Locke's original meanings and their historical place; it interprets his ideas and modifies them to construct a workable constitutional model that better controls executive power in times of emergency. Just how the Lockean constitution adapts to local conditions obviously requires further work. That, however, is beyond the scope of this article.

1. The Lockean Constitution

   1. A Constitution of Structure

      Part I argues that Locke, in his Second Treatise on Government, (1) sets out a constitutional model, in which executive power is always politically accountable to the legislature--even in times of emergency. This reading of Locke therefore rejects alternative interpretations of prerogative power (as noted below), which would not only allow the executive to act against the letter of the law, but outside of the constitution itself. The Lockean constitution, which always constrains the executive, is a structural division of political power between the executive and legislature (and, as explained in Part II, the judiciary), resembling the modern separation of powers doctrine. This constitution of structure, therefore, contrasts with other forms of government that would, for example, rely on substantive restrictions on princely power or lodge sovereignty in a single republican legislature. While this article examines Locke's constitutional model in detail and expounds upon it, it is first helpful to explain briefly why Locke embraced this structural solution to the problem of executive power. Its origins lie in his theory of the state of nature and natural law.

      Locke's Second Treatise begins with the pre-political state of nature, in which all men enjoy perfect freedom and equality, subject only to natural law. (2) He equates that law with reason, which "teaches all Mankind, who will but consult it; That being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions." (3) The law of nature permits such harm only when individuals defend themselves, seek reparations for injuries to person or property, or restrain and punish the transgressions of others. (4) Therefore, natural law gives...