Monday, January 30, 2012

Locke on Legislative Power

In Search of the Republic--31

When a people form themselves into a commonwealth, they invest a legislature as the supreme law making body. Locke offers four general principles about the legislative power.

Firsts, Locke argues that legislative power is limited to the powers individuals exercised in a state of nature.

“It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another.”

No one in a state of nature can assume absolute authority over others; neither can the legislature. This analogy is appropriate for 17th century England, which had no written constitution. In our country, the federal and state constitutions limit legislative powers.

In addition, Locke asserts that

“Their power, in the utmost bounds of it, is limited to the public good of the society.”

Our federal constitution sums that up in the Preamble's reference to “the general welfare.”

Second, legislative power must enact promulgated, standing laws that do distinguish between those to whom they apply and are applied by judges so authorized by the legislature. The mention of judges means that citizens can contest the applications of those laws.

“The legislative, or supreme authority, cannot assume to its self a power to rule by extemporaneous arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges.”

Thirdly, legislative power cannot take anyone's property without their consent.

“The supreme power cannot take from any man any part of his property without his own consent: for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires, that the people should have property, without which they must be supposed to lose that, by entering into society, which was the end for which they entered into it; too gross an absurdity for any man to own.”

That is especially true of taxation.

“It is true, governments cannot be supported without great charge, and it is fit every one who enjoys his share of the protection, should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them: for if any one shall claim a power to lay and levy taxes on the people, by his own authority, and without such consent of the people, he thereby invades the fundamental law of property, and subverts the end of government: for what property have I in that, which another may by right take, when he pleases, to himself?”

Finally, legislative power cannot delegate their lawmaking powers to others. Legislative power derives from the people; only they possess the rights to transfer lawmaking powers to another entity.

“ The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the common-wealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and authorized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.”

This last passage strikes at the heart of the modern bureaucratic state. It may be just a unavoidable consequence of modernity, but our legislatures at both state and national levels routinely empower state and federal agencies to write and enforce thousands of regulations. Now these regulations are contestable in administrative and other courts, but the legislative power of executive agencies seems awfully close to the “arbitrary power” of monarchs that republicanism traditionally has opposed.

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