John Locke’s Second Treatise is the much better known half of his Two Treatises of Government. Although the Treatises were not published until 1689, they were composed during the decade that culminated in the Glorious Revolution of 1688. During that decade Locke was deeply involved in opposition to the authoritarian ambitions of Charles II and James II; and the Two Treatises were written to provide intellectual support for resistance against over-reaching monarchical power.
The Stuart Monarchs (James I and Charles I prior to the Civil Wars of the 1640s and Charles II and James II after the Restoration of 1660) and their intellectual apologists claimed that all legal authority was grounded in the will of the Sovereign (and the Sovereign was the Monarch). On this view, ultimately the law was whatever the Monarch commanded. Hence, there was no way that any command of the Monarch could be unlawful. There was no way that resistance to the Monarch could be lawful. On this view, Parliament was merely an advisory body; and judges and grand juries were agents of the Monarch who served at his will. It was within the prerogative of the Monarch to dissolve Parliaments that sought to constrain his power and to replace judges and grand juries that would not do his bidding.
A good deal of opposition to this authoritarian perspective invoked the historically evolved legal structure of England — the evolved unwritten law of the land. This law of the land included evolved constitutional rules such as the rule that no new tax could be established without Parliament’s approval and time-honored rights such as the right against arbitrary governmental infringements upon one’s liberty or property. Much opposition to the Stuart doctrine of top-down legal authority was based on this alternative picture according to which law grows piecemeal from the ground up. This, however, was not the form that Locke’s opposition to unchecked governmental power took. Nor did Locke propose a written constitution as a check on that power. Rather, especially in the Second Treatise, Locke offered deeper reasons for radical constraints on governmental power — reasons that would be an important influence on the written constitutions that appeared on the other side of the Atlantic about 100 years after the composition of the Second Treatise.
In that work, Locke in effect offers a third theory of law. Locke held that those who appealed to the evolved law of the land were correct to say that true law preceded the will of political rulers, binds those rulers, and limits what they can lawfully do. But Locke took this moral law to be based on human nature and to be discoverable by human reason. Thus, this law holds for all human beings — not just for Englishmen; and it is a standard for assessing the conduct of all those who exercise political power. It is a standard that all human beings have access to and can apply through the use of their reason.
For Locke, the crucial and politically relevant part of this natural law is the moral claim that each individual has to freedom. Freedom is what each individual can demand from each other and from any government that aspires to authority. Locke argued that we each have a right — a natural right — to freedom because we are each by nature equal and independent beings, i.e., beings who have rational ends of our own and who are neither natural masters nor natural slaves of others. Locke thought that if one recognizes the standing of each other person as an equal and independent being, one will see that in one’s pursuit of one’s purposes, one may not treat other individuals as though they were made for one’s own purposes.
For Locke, this basic claim to freedom takes the form of rights to discretionary control over one’s own person, rights to acquire property and exercise discretionary control over it, rights to the fulfillment of one’s agreements, and rights to defend one’s rights and punish violators of those rights. As is well-known, Locke thought that legitimate governments are established by individuals transferring the rights of defense and punishment to political society. According to Locke, people bring their fundamental rights of life, liberty, and property to the table, these rights are not granted to people by the state, and the creation of political society involves no surrender these rights. Indeed, the core legitimizing purpose of government is the further articulation of and protection of those rights. And this purpose may only be advanced in ways that are respectful of people’s retained rights of life, liberty, and property.
The Founders largely shared Locke’s vision of the moral background for and the role of government; and the written Constitution that they created is best understood as embodying that vision. Speaking very generally, it embodies that vision in three major ways — all of which we ignore at our peril. First, the Constitution establishes a government of limited, enumerated powers. The government only has those powers that are explicitly granted to it by the written constitution or can be readily inferred from explicitly granted powers. Second, many of the structural features of constitutional government are not supposed to facilitate governmental action but, rather, to impede it. The Founders recognized the profound value of gridlock. Third, constitutional government is in the service of individual rights that are not themselves gifts of the state. The rights enumerated in the Bill of Rights are not created by but, rather, are recognized by the Constitution. Most telling here is the language of the Ninth Amendment that reminds us that we have many non-enumerated rights — not because the state may someday get around to bestowing more rights upon us but, rather, because all rights except those essential to the establishment of limited government are retained by the people.
Read the Second Treatise of Government by John Locke here: https://constitutingamerica.org/?p=3296
Eric Mack (Ph.D., University of Rochester) is a Professor of Philosophy and the author of John Locke (London: Continuum Press, 2009). Professor Mack’s primary philosophical interests are in the foundation of moral rights, property rights and distributive justice, and the legitimate scope of coercive institutions. He has related interests in doctrines of negative responsibility, just war theory, anti-positivist conceptions of law, retributivism, philosophical anarchism, and the history of libertarian thought. He has received grants from NEH, the Earhart Foundation, the Center for Social Philosophy and Policy, and the Bradley Foundation.