Monday, November 23, 2020

Benjamin Franklin vs. John Locke on the Legislature vs. the Executive


 - by New Deal democrat

An initial note: there is very little economic data this week. Some house price information gets updated tomorrow, and then on Wednesday we get a slew of data, including Q3 corporate profits, jobless claims, new home sales, durable goods orders, and personal income and spending. That’s probably worth two days’ of posts, at least one of which will probably be at Seeking Alpha.

Shorter version: don’t be surprised by light posting here this week!

In the meantime, as we wait to see whether the GOP Michigan and Pennsylvania legislatures will officially turn the United States into a banana republic, here are a couple of quotes worth your noting about Legislative and Executive power. Bolded sections are my emphasis.

John Locke, in his Second Treatise of Government, held that the Legislature must be the supreme authority in all well-ordered republics. But because it was not necessary, not beneficial, for the Legislature to sit permanently, there must be a permanent Executive power to enforce the laws at all times, including the use of “prerogative,” i.e., discretion:

Sect. 134. The ... first and fundamental positive law of all commonwealths is the establishing of the legislative power.... This legislative is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have once placed it; nor can any edict of any body else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law, which has not its sanction from that legislative which the public has chosen and appointed...; and therefore all the obedience, which by the most solemn ties any one can be obliged to pay, ultimately terminates in this supreme power, and is directed by those laws which it enacts: 

Sect. 143. The legislative power is that, which has a right to direct how the force of the commonwealth shall be employed for preserving the community and the members of it. But because those laws which are constantly to be executed, and whose force is always to continue, may be made in a little time; therefore there is no need, that the legislative should be always in being, not having always business to do.... [T]herefore in well ordered commonwealths, where the good of the whole is so considered, as it ought, the legislative power is put into the hands of divers persons, who duly assembled, have by themselves, or jointly with others, a power to make laws, which when they have done, being separated again, they are themselves subject to the laws they have made; which is a new and near tie upon them, to take care, that they make them for the public good.

Sect. 144. But because the laws, that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or an attendance thereunto; therefore it is necessary there should be a power always in being, which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated.

Sect. 161. This [Executive] power, whilst employed for the benefit of the community, and suitably to the trust and ends of the government, is undoubted prerogative, and never is questioned: for the people are very seldom or never scrupulous or nice in the point; they are far from examining prerogative, whilst it is in any tolerable degree employed for the use it was meant, that is, for the good of the people, and not manifestly against it: but if there comes to be a question between the executive power and the people, about a thing claimed as a prerogative; the tendency of the exercise of such prerogative to the good or hurt of the people, will easily decide that question.

With another century of experience, 100 years later here is how Benjamin Franklin responded during the US Constitutional Convention, on June 4, 1787:

Docr. FRANKLIN. [In] ... the case of the U[nited] Netherlands [i.e., the Dutch Republic]..., [t]he people being under great obligations to the Prince of Orange whose wisdom and bravery had saved them, chose him for the Stadtholder. He did very well. Inconveniences however were felt from his powers; which growing more & more oppressive, they were at length set aside. Still however there was a party for the P. of Orange, which descended to his son who excited insurrections, spilt a great deal of blood, murdered the de Witts, and got the powers revested in the Stadtholder. Afterwards another Prince had power to excite insurrections & to make the Stadtholdership hereditary. And the present Stadthder. is ready to wade thro a bloody civil war to the establishment of a monarchy. Col. Mason had mentioned the circumstance of appointing officers. He knew how that point would be managed. No new appointment would be suffered as heretofore in Pensa. unless it be referred to the Executive; so that all profitable offices will be at his disposal. The first man put at the helm will be a good one. No body knows what sort may come afterwards. The Executive will be always increasing here, as elsewhere, till it ends in a Monarchy.”

As I have written before, every single Presidential Madisonian democracy except for the United States (so far) has devolved into Presidential autocracy. Every. Single. One.