The Lockean Constitution: Separation of Powers and the Limits of Prerogative

Abstract

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.