John Locke’s Lost Warning About Executive Power and the Judgment That Still Belongs to the People

Every schoolchild who has endured an American history class knows that John Locke gave us natural rights, the social contract, and the triad of life, liberty, and property. Thomas Jefferson borrowed from him so openly that he later had to fend off accusations of plagiarism. What almost nobody learns, however, is that Locke also bequeathed a far more specific and uncomfortable teaching, one that speaks directly to the swollen administrative state we live under today. It centers on a concept he called prerogative, and it carries with it a theory of judgment that we have nearly forgotten.

The Power Locke Tried to Fence In

Locke was no utopian. He grasped that a commonwealth needs a safety valve for rare, urgent moments when the ordinary machinery of law moves too slowly. A foreign fleet appears on the horizon while the legislature is out of session. A plague breaks out and requires an immediate quarantine. In such cases, Locke argued, the executive may act "according to discretion, for the public good, without the prescription of the law, and sometimes even against it." He gave this power a name: prerogative. It is not a comfortable idea, but it is an honest one. Even a government of laws cannot write a rule for every contingency in advance, and a rigid refusal to act in a true emergency would be its own kind of folly.

What matters more than the existence of this power, though, is the cage Locke immediately built around it. He placed three iron limits on executive prerogative, and each one amounts to a load-bearing pillar of any free republic.

The first limit is that prerogative is strictly executive, never legislative. It may carry out the settled will of the community when the normal channels are temporarily blocked. It may fill a gap in execution. It may never, under any pretext, invent new laws to govern the property or conduct of the people. The distinction is absolute. The legislative power, Locke insisted, "cannot transfer the power of making laws to any other hands," because the people consented to a specific constitutional arrangement, not to an open-ended license for rule by decree. The moment the executive begins making rules that have the character of law, he has crossed the line that separates legitimate discretion from tyranny. In Locke's own crisp formulation, "Where-ever law ends, tyranny begins."

The second limit is that prerogative is temporary and situational. It is a couch in the dead of night, not the noon-day sun. It vanishes the moment the legislature can convene and act. A standing, permanent reservoir of discretionary power was never part of the Lockean vision, because a standing power to govern without law simply is despotism by another name.

The third limit is the deepest and the most radical. Locke taught that the people themselves are the final judges of whether prerogative has been abused. If the executive overreaches, and if the legislature fails to check him, the community may "appeal to Heaven"-that is, they retain the natural right to dissolve a tyrannical government and establish a new one that respects their liberties. This is not a romantic call to chaos. It is the same ultimate remedy that Jefferson, again following Locke exactly, embedded in the Declaration of Independence. The judgment of the people is the ultimate court of appeal against a government that has broken the trust placed in it.

What Happens When the Couch Becomes the Sun

Now take these three Lockean boundaries and press them against the American administrative state as it actually operates in the twenty-first century. The result is an instant verdict of illegitimacy.

The Environmental Protection Agency offers a representative case. In 1970, Congress passed a clean-air statute filled with broad, aspirational language about protecting public health and welfare. It did not specify how many micrograms of particulate matter could be emitted from a factory smokestack. It did not set fuel-efficiency standards for vehicles. It did not do the hard work of balancing economic costs against environmental benefits in thousands of particular cases. Instead, it handed a blank check to a newly created agency, and the agency has been writing the laws ever since. Tens of thousands of pages of binding regulations now govern the air you breathe, the car you drive, and the farm equipment you operate. Violate them, and you face fines or prison. Yet none of these rules were ever voted on by the people's representatives. They are the product of administrative decree, and they change with every presidential election, not because the statute changes, but because the executive branch's interpretation of a few gauzy paragraphs changes.

Locke's three questions annihilate this arrangement. Is this power executive or legislative? It is legislative down to its foundation. Is it temporary? It has been expanding without pause for over half a century. Do the people retain a meaningful judgment over it? Theoretically, Congress could rewrite the Clean Air Act tomorrow, but the practical reality is that the regulatory engine churns on through administrations of both parties, insulated from public accountability by layers of legal complexity, lobbying, and bureaucratic inertia. In Lockean terms, a temporary prerogative has become the permanent mode of government itself.

The same pattern repeats across the federal government. The Securities and Exchange Commission invents disclosure mandates that reshape capital markets. The Federal Communications Commission decides who may use which portions of the electromagnetic spectrum and on what conditions, with a statutory warrant so thin it would embarrass a Stuart king. The Department of Education waves away hundreds of billions of dollars in student debt by invoking a pandemic "emergency" that Congress never voted to continue. In each case, the executive branch legislates, enforces its own legislation, and then adjudicates disputes about its legislation inside the same building. The separation of powers that James Madison copied directly from Locke is not being bent; it has been snapped clean in two.

The Knowledge Problem Nobody Can Wish Away

There is a standard reply to all this, one that sounds reasonable in a faculty lounge or a West Wing briefing room. The world is too complex, the argument runs. Congress cannot possibly write detailed rules for every chemical, every financial instrument, every new technology. We need expert agencies staffed by scientists, economists, and career civil servants who can study the facts and issue smart, flexible regulations.

That is the technocratic lullaby, and Friedrich Hayek dismantled its logic decades before the EPA opened its doors. In his indispensable essay "The Use of Knowledge in Society," Hayek argued that no central planner-no panel of credentialed experts, however brilliant-can gather the dispersed, local, often unspoken knowledge that millions of free individuals use every day to coordinate an economy. The butcher knows the price of beef and the demand of his neighborhood. The factory manager knows which machinery is due for replacement and which supplier delivers on time. The price system transmits all that granular information without anyone needing to collect it in a single computer. When a regulatory agency imposes a uniform rule from Washington, it blots out that local knowledge and substitutes the judgment of a few for the judgment of many. The result is not rational order but cascading distortions.

Henry Hazlitt added a moral and economic layer with his classic lesson about the seen and the unseen. When the EPA forces a coal plant to shut down prematurely, the visible result is cleaner air in a particular corridor, and that benefit is easy to photograph for a campaign ad. The unseen results are the jobs that vanish, the families that are uprooted, the energy bills that climb and squeeze households already living on the edge, and the manufacturing that quietly shifts to countries with laxer environmental rules. The agency never tallies those costs because its mission is to pursue a single mandate with single-minded intensity. Everyone who pays the unseen price is invisible to the regulators. In Lockean language, the executive is exercising a prerogative that enriches itself with the appearance of public good while the full weight of the law falls on people who were never given a vote or a hearing.

The Constitution as a Chain of Delegation

Locke's warning about legislative power cannot be delegated away is not a curiosity of political philosophy. It is the load-bearing pillar of the American constitutional order. Article I of the Constitution vests "all legislative powers herein granted" in Congress-not in Congress plus a few hundred administrative agencies. That word "all" is not decorative. The framers labored over the structure of separated powers precisely because they understood, with Locke, that the people had consented only to a particular distribution of authority.

Yet since the New Deal, the Supreme Court has allowed Congress to hand over essentially lawless discretion with phrases like "public interest, convenience, and necessity." The non-delegation doctrine, which once prevented the transfer of legislative power to the executive, has been reduced to a formality. Justice Antonin Scalia spent his later years on the bench fighting to revive it. In cases that turned on how much statutory guidance is enough, Scalia argued that an "intelligible principle" is not sufficient when the principle is so malleable that it imposes no real limit. The Lockean in Scalia understood that a government of laws, not of men, cannot survive when unelected lawyers in agency basements are effectively writing the code by which the whole society operates.

Originalism, the judicial philosophy Scalia championed, is often discussed as a method of interpreting texts. Its moral roots, however, are deeply Lockean. Government is a fiduciary trust. The trustees, whether they wear robes or sit in the Oval Office, do not get to rewrite the trust instrument because it suits their convenience. When Congress outsources its legislative power to the executive, it unilaterally alters the constitutional bargain without the consent of a single voter. That is a breach of trust of the highest magnitude.

Republics and the Limits of Counting Votes

This is where we need to clean up a vocabulary habit that has muddied our political thinking for a century. America was never designed to be a pure democracy. The framers, following Locke, built a constitutional republic-a government of laws designed to protect individual rights against both the tyranny of a king and the tyranny of a transient majority. The Bill of Rights is literally a list of things that 51 percent of the country cannot do, no matter how loudly they demand it. Madison's Federalist 10 is an extended argument for why a large republic must filter and refine public passions rather than simply register them.

When people propose to fix the administrative state by making it "more democratic"-by having the president issue still more executive orders, or by holding public comment periods that nobody reads-they are diagnosing the disease incorrectly. The problem is not that the EPA is insufficiently responsive to the latest polling. The problem is that it exercises legislative power wholly outside the constitutional structure of representation, consent, and limited government. Making technocracy more popular does not repair the breach; it widens it. A plebiscitary despotism is still a despotism.

Locke's vocabulary is the rescue. He did not speak of democracy as an end in itself. He spoke of liberty secured by a commonwealth, a government of known, stable laws that protect property in the fullest sense: life, liberty, and estate. When laws become unpredictable, when they emerge from the opaque and unaccountable machinery of agencies that combine every power in one room, liberty is already half extinguished.

What Sounding the Lockean Alarm Would Require

Recovering Locke's teaching is not an exercise in nostalgia. It demands practical constitutional steps.

First, it means reviving the non-delegation doctrine in the courts and in the broader political culture. Broad, vague statutes must be struck down, not patted gently on the head. The "major questions" doctrine, which requires agencies to show clear congressional authorization before regulating on matters of vast economic and political significance, is a cautious step in the right direction, but it does not go nearly far enough. The Lockean position is that no legislative power may be transferred at all. Congress must write the laws, take the public votes, and face the electoral consequences. Anything less is an abdication dressed up as efficiency.

Second, it means restoring the structural distinction between executive and legislative power at every level of government. An agency that writes rules, enforces them, and adjudicates disputes about them is a little parliament unto itself. That arrangement is an affront to the separation of powers, and it should be forbidden categorically rather than regulated with procedural niceties.

Third, and most fundamentally, it means reclaiming the people's role as the ultimate judge of whether their government is operating within its charter. This does not mean taking to the barricades. It means a steady, principled refusal to accept that the administrative state is inevitable. State legislatures can resist federal overreach. Juries can refuse to convict when the underlying regulation is vague and unjust. Voters can punish elected officials who treat their Article I powers as a nuisance to be outsourced. The Lockean appeal to Heaven, translated into the practices of a constitutional republic, is a long, patient campaign to force the government back inside the boundaries the people originally set for it.

Locke wrote his Second Treatise in the long shadow of the Stuart monarchy, an era when executive prerogative had swollen into permanent absolutism. He had watched kings dissolve Parliament, levy taxes by fiat, and rule without the consent of the governed. His entire political project was an argument that no government possesses the right to do those things, because the people are the ultimate sovereign, and they have delegated only specific, limited powers to their rulers. We are not yet living under the Stuarts, but we have been sleepwalking in their direction for decades. Every new crisis-a pandemic, a financial collapse, an environmental scare-becomes the excuse to enlarge executive discretion yet further, while Congress stands mute and the courts defer. The Lockean corrective is to remember that law, to be law, must be general, known, stable, and made by the representatives of a free people. When law becomes whatever the executive says it is this week, the judgment that matters most has been stolen from its rightful owners.