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Philosophy is a game with objectives and no rules.
Mathematics is a game with rules and no objectives.
Theology is a game whose object is to bring rules into the subjective.

Monday, December 15, 2008

The Basis of Lockean Thought

The political philosophy of Locke's mature years stemmed from the commonly-accepted Natural Law, under which man had Natural Rights, not given to him by any ruler. Under Natural Rights the right of property is paramount. Men came together in an organized community under a Social Contract between every member in order to gain advantages they could not have individually in a state of nature.
This Contract of Society was the foundation of the Contract of Government, under which all political power is a trust for the benefit of the people, and the people themselves are at once the creators and beneficiaries of that trust. The State is based on a contract between ruler and subjects, who give him power only so that their own welfare is increased and their property protected in a way not possible in the State of Nature, where it may be taken away by unprincipled forces. They, if he keeps the contract, owe him their loyalty.
It was Thomas Jefferson's passionate belief in these ideals that made him base the powers of government on "unalienable rights." Most of his Declaration of Independence is a bill of particulars in an indictment of King George III for his failure to keep the contract with his American subjects. He had broken it, and it was therefore void. The signers agreed with him. Contract, therefore, is fundamental to our system of government.
The state, Locke maintained, was concerned only with public order. It extended solely to those aspects of behavior which had to be regulated for the protection of the public.
Locke was rather vague about the organization of government. He said that the legislative and executive power "come often to be separated." While Locke thought that the legislature should be supreme among the branches, the establishment of legislative, executive and judicial powers and their separation in our governmental tradition came from Montesquieu. Locke said that the legislative branch should provide for judges, but there was no mention of judicial review of laws. The power to make war and treaties he called "federative." He said that everyone must submit to the majority, or there would be no compact of government.
He was concerned with principles and rights, and property rights are uppermost. He wrote in "The Second Treatise of Government," . . . every man has a property in his own person. This nobody has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his . . . " He said that whatever is removed out of the state that nature provided and is mixed with someone's labor, becomes that person's property. James Madison later explained that "property" means "that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual . . . it embraces everything to which a man may attach a value and have a right; and which leaves to every one else the like advantage."
This is a view of property that is at once practical, expansive and libertarian. It is the essence of political freedom. Who can argue that a man does not have a property in his own person? No government could take the fruits of one's labor and intellect without a compelling public need and without compensation, and then only through due process of law. A person was free to contract away his property, or any of his several rights in it, for gain. The contract with government was only to protect private contracts, and the government was not entitled to any of the gains therefrom.
The human right in property was meant by Locke and understood by the Framers of the Constitution to be the fundamental liberty. Obviously, it was not necessary to organize government to protect free speech from government or to protect freedom of assembly against government. It was only necessary to organize it to protect property and life (one's life was his property), and once organized other freedoms had to be protected against government's power. He wrote in the Second Treatise that men unite in a society "for the mutual preservation of their lives, liberties, and estates, which I call by the general name 'property'." He said that the supreme power (the legislative) "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 . . . " He noted that for the protection of government everyone should pay his share (a small, flat tax), but only with the consent of the majority.
The right to property was unquestioned in that period, and Locke influenced France as well as America. The Declaration of the Rights of Man in revolutionary France in 1789 (the year North Carolina ratified the U. S. Constitution), asserted the right of property, and successive French constitutions made it stronger. The one in 1793 read: "No one shall be deprived of the least portion of his property without his consent, except when public necessity, legally proven, evidently demands it, and then only on condition of just compensation previously made." It is very similar to the takings clause of the Fifth Amendment of the United States Constitution, which says, " . . . nor shall private property be taken for public use without just compensation."
The Constitution of North Carolina has an obvious heritage from Locke. The 1776 version allowed the General Assembly to choose the state executive and judicial officers. Later ones did not give the governor a veto over actions of the legislature, making the General Assembly supreme, as Locke believed it should be. In 1997 the voters granted him that power.
The current State Constitution begins with a Lockean Bill of Rights, Section 1 of which says, "We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness."
Section 2 states that all political power is vested in and derives from the People. The State Constitution goes on to provide for the separation of powers, the right of assembly, religious liberty, freedom of speech, for other rights and for the organization of government.

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