A view of eerily quiet and empty Times Square in New York amid the Covid-19 pandemic on March 31, 2020. Photo: NurPhoto

During the Covid-19 pandemic we have witnessed what many would call tyrannical abuse of power by politicians giving executive orders to close businesses, schools and churches, and limit the right of assembly. The argument has been concisely stated by Judge Anthony Napolitano:

“They’re not interested in the Bill of Rights, they are not interested in their oath to uphold the Bill of Rights. The constitutional guarantees – free speech, free press, the right to assemble, the right to worship – are only as good as the human beings in whose hands we have reposed the constitution for safekeeping.”

Judge Napolitano is taking the constitutionalist view that all government authority resides within the law. In his Second Treatise on Government, one of the political works that influenced the American Founding Fathers, John Locke took a different view: The executive must have “prerogative power” to act for the good of society in emergencies, where there is no practical way to set that power within the scope of the law.

Locke writes,

“Many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require: nay, it is fit that the laws themselves should in some cases give way to the executive power…. This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative.”

Locke’s position is reasonable: No set of laws could possibly cover all potential situations to be faced. Surely, the current pandemic is a case in point. But where does prerogative power stop, since it is the executive himself who must determine its extent, because by definition the legislature is not part of the process?

Locke argues that the extent of prerogative power is determined by the people: “Prerogative can be nothing but the people’s permitting their rulers to do several things, of their own free choice, where the law was silent, and sometimes too against the direct letter of the law, for the public good; and their acquiescing in it when so done.”

Locke is being practical. A majority of American people today support the executive powers, at the federal, state and local levels, being taken to limit their liberty. They support violation of the law because they believe that the violation is in their interest. Liberty and law give way to interest.

The people want the executive to act for what they perceive as their own good. Does this diminish liberty and weaken the US constitution? According to Locke’s argument, it does not, because it is always implicit that liberty and the constitution can be overridden by the prerogative power of the executive, a power limited only to the extent that the people acquiesce.

It is in asking what can be done if the ruler goes beyond the point at which the people acquiesce that Locke gets to the heart of the matter. The executive claims that his lawless behavior is for the good of the people, but the people believe that he has gone too far and is acting to their detriment. They have no appeal within the law because it is precisely the law that the executive is ignoring.

Locke writes,

“[The people] have, by a law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, viz to judge, whether they have just cause to make their appeal to heaven.”

There being no appeal to the law of man, the people possess a law beyond the law of man to decide whether the executive’s actions are sufficiently egregious that they are justified to “make their appeal to heaven,” that is, to dissolve the government.

Locke poses and answers the question of limits: “The old question will be asked in this matter of prerogative, but who shall be judge.…” The people! Ultimately, the US constitution is just a piece of paper. It can be followed or violated as the executive sees fit, so long as the people permit it; indeed, they may wish him to violate it and cheer when he does. But should the people object, they retain a natural right to seize power outside of the ordinary constitutional machinery.

The dilemma of constitutional government is that in an emergency (or perceived emergency), the leader and the people may agree on ignoring the law, but once the law is ignored, there are no boundaries to governmental power except that which the people can enforce, and this judgment of the people is itself outside the bounds of law. The lesson is not that one can never use prerogative power, but prudence requires that executive orders should be used sparingly, be narrowly defined, and be clearly demanded by some exigency.

Assuming that the “the people” refers to the majority, the rights of the minority are not protected. The US constitution might say that the citizens have the right to assemble and the right to practice their faiths unimpeded by government, but these are merely guidelines to be transgressed by the prerogative of the executive with agreement by the majority. And there is no requirement that this power be used sparingly and be narrowly defined.

The executive need only have the consent of the majority to do whatever he pleases. For Locke, constitutional government is not strictly a government of law; rather, it is a government of men guided by a constitution, but not subservient to it. While this might be unpalatable, could it really be any other way in practice?

Many contemporary conservatives assert the view that the US is a state whose foundations are in the law, that it is defined by the Declaration of Independence and the constitution, as opposed to classical nation-states that are rooted in ancient traditions, cultures and religions. The founding documents rest on rational universal principles that can be appreciated by every human being, who can then choose to abide by them. Government is limited because it functions within the bounds of these principles, which include protection of minority rights.

John Locke appears to disagree. The people, not constrained by reason or law, are the source of power. In the person of their leader, they can choose to follow or not to follow the law, and this choice is not subject to universal principles. At a deep level, it is their beliefs and proclivities embodied in their collective will that governs, even in a constitutional system.

If a governor chooses to use her prerogative power to arrest people not obeying regulations that have no foundation in law, she can do so as long as the people acquiesce. It is impossible to know her true motivations or ultimate aims. In principle these do not matter because the law protects us from her abuse of power. But principle and law are put aside by prerogative power. If the people support her, she can do as she wishes.

Judge Napolitano has reason to be concerned, as should everyone. There are many on the left calling for a massive increase in government power, using the Covid-19 pandemic as a wedge.

The left does not use power sparingly. Having witnessed the left’s use of prerogative power at the state level, it would be naive to believe that it would not even be more aggressive at the national level should it have the opportunity. Appeal to the Supreme Court might be futile, because the court exists within the structure of the constitution and prerogative power is not bound by the constitution.

When push comes to shove, power is only bound by counter-power. Rather than get to that point, would it not be wiser to follow Aristotle’s advice and search for the golden mean?

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Edward R Dougherty

Edward Dougherty is distinguished professor of engineering at Texas A&M University.