“John Locke.”  By David A. Reidy, J.D., Ph.D., Dept. of Philosophy, University of Tennessee.  

     For the Encyclopedia of American Civil Rights and Liberties, Stephens and Scheb, eds.,
     Greenwood Publishing.


I. Introduction.

    John Locke’s influence on American political and constitutional thought was and remains
considerable.  Revolutionary pamphleteers from James Otis to Thomas Jefferson drew from
Locke’s political writings.  And Lockean commitments and themes manifest constitutionally in
many ways.  Examples include the individual and constitutional rights to free exercise of
religion, to due process, to freedom from search and seizure absent a showing of probable cause,
to just compensation for private property taken for public use, and to those nonenumated rights
‘retained by the people’, as well as the constitutional provisions mandating republican forms of
state government, legislative primacy, and an independent judiciary.  Locke continues to be cited
in U.S. Supreme Court decisions regarding many of these matters.

    The relationship between Lockean political philosophy and American political and
constitutional thought and practice is, however, complex.  The American Founders were a
diverse lot and they drew their inspiration as well as particular doctrines from a wide and varied
range of political and legal thinkers, including Aristotle, Greek and Roman Stoics, Sidney,
Blackstone, Burlamqui and others, in addition to Locke.  Further, the American Founders were
already far removed from the time, place and  circumstances to which Locke’s political writings
were in many ways a response and analysis.  Contemporary American political and constitutional
theorists and actors are even further removed from the context of Locke’s work since few share
the deeply religious outlook and assumptions from which Locke’s political views grew and to
which they gave expression.  Further, they have access not just to Locke’s work, but also to
several centuries of criticism of Locke’s work.  Nevertheless, Locke’s writings were well-known
to many of the American Founders and remain well-known to contemporary American political
and constitutional theorists and actors, and his political philosophy remains a touchstone in any
serious discussion of American constitutional and civil rights.

II. Life and Works
    
    Locke was born in 1632 and died in 1704.  He was born to parents of modest but
independent means and deep Puritan convictions.  His life may be divided into three periods.  
The first ranges over his childhood and early education during the years of the English Civil War
and the Commonwealth.  In 1647 Locke left home to attend Westminster school and later Christ
Church, Oxford.  He found Oxford dominated by a petrified scholasticism with which he had
little patience or affection.  Rejecting a clerical career, he pursued medical studies instead.  But
this did not prevent him from writing on political topics.  His Two Tracts on Government (1660)
and Essay on Toleration (1667) date from this period.  (These works are not to be confused with
the later Two Treatises on Government and Letter on Toleration.)

    The second period in Locke’s life begins with his relationship to Lord Ashley, later first
Earl of Shaftesbury.  Locke entered Shaftesbury’s household in 1668.  Shaftesbury was first an
influential member and then, after 1675 or so, an aggressive critic of the Court of Charles II.
Through his association with Shaftesbury, Locke found opportunities to participate in and learn
about government, as both an insider and outsider.  He served on the Council of Trade during
Shaftesbury’s Chancellorship, and later found himself during the so-called Exclusion Crisis in
close association with key members of a national opposition political movement to which
Shaftesbury was by then committed.  In 1683 he fled to Holland, where he remained until after
William of Orange took the throne in 1688.  It was during this second period that Locke wrote
his Two Treatises on Government (1689), though scholars continue to debate when exactly
Locke wrote various portions of this classic text.  The Two Treatises were published shortly after
Locke’s return to England and constitute his most enduring contribution to American political
and constitutional thought and practice.
                                
    Locke’s return to England marks the beginning of the third period of his life.  In addition
to the Two Treatises, he published also in 1689 his Letter on Toleration and his Essay
Concerning Human Understanding.  It is in these works that Locke expresses his mature views
with respect to the two questions around which his philosophical reflections were organized:
How can men know?  And how ought men live?  For the next fifteen years, Locke devoted
himself to a wide range of projects, some practical and political and some philosophical.  He died
in 1704 among the most famous men of his day, not just in England but in Europe generally.

    A complete review of Locke’s contribution to American political and constitutional
thought and practice is a task unrealizable within the scope of a short article.  Three contributions
merit special attention, however.  The first concerns Locke’s account of legitimate political
authority, the second his account of property rights, and the third his account of religious liberty.

III. Legitimate Political Authority

    Locke’s views on legitimate political authority and property rights are expressed most
fully in his Two Treatises.  Locke distinguished between the right of rulers to rule and the duty of
subjects to obey.  He did so because he was sure that the latter did not entail or establish the
former.  The subjects of an absolute but benevolent monarch have a duty to obey because
resistance to such a monarch, assuming his or her benevolence, would do more harm than good.
But an absolute monarch, no matter how benevolent, has no legitimate political authority, no
right to rule, and rules by power alone.  It follows that a malevolent or tyrannical absolute
monarch is one both without legitimate political authority to rule and with respect to whom
subjects owe no obedience.  Locke’s recognition and analysis of the possibility of the
illegitimacy of existing and benevolent political authority is what set him apart from other
theorists of his day, such as Filmer and Hobbes (neither of whom recognized this possibility).

    The right to rule, or legitimate political authority, arises, Locke argues, out of a limited
delegation by the ruled of natural right to the body politic as sovereign on conditions of trust.
The right to govern entails the duty to govern in the interests of the governed.  This is a complex
claim that needs unpacking.  The place to start is Locke’s state of nature.  

    The state of nature is, on Locke’s view, simply the condition men find themselves in in
the absence of political authority.  In this condition men are subject only to the natural law, the
moral law as given by God and discoverable by reason.  The two most basic natural laws are,
first, to preserve oneself, and, second, to preserve others.  In the absence of political authority and
subject only to the natural law, men confront one another as free equals.  But they confront one
another as free equals possessed of certain natural rights.  The most basic or important of these
are the right to possess their own bodies and thoughts, to appropriate natural resources for
personal use, and to enforce the natural law against those who violate it.  These rights impose
corresponding duties on others.  Thus, while in the absence of political authority men confront
one another politically as free equals, they remain bound by the demands of morality or natural
law.  In the state of nature, liberty is not license, as Locke famously says.    

    Whether or not men ever existed in a state of nature, it is obvious, Locke argues, that the
state of nature is or would be a state of inconvenience.  One reason for this is that the natural law
is itself incomplete in the absence of conventional rules.  Another is that men are not particularly
good judges in their own causes and are also limited in their abilities and resources to enforce the
natural law against one another individually.  Yet another is that the natural law permits large
inequalities in private property.  These give rise to new temptations and conflicts and, given the
nature of men, to increased violations of the moral or natural law.  Thus, as the ‘rational and
industrious’ come to possess privately most productive property and vastly greater amounts of
commodities or nonproductive property, the inadequacy of securing general compliance with the
natural law through individuals exercising their own natural right to enforce it is likely to grow.
In the state of nature, then, the natural law is not likely to be executed in a regular, reliable and
equitable fashion.  And completing it through an enforceable regime of conventional rules is
likely to be difficult.  

    Because of these inevitable inconveniences, men in a state of nature will each and all find
it rational to constitute themselves as a corporate body politic, or civil society, empowered to
enforce the natural law.  This they do by delegating to themselves as a corporate body their
individual rights to execute the natural law.  To execute the natural law, of course, the corporate
body politic so constituted must possess the power to establish a fixed and known law and to
adjudicate disputes arising under it.  And so it acquires also the power to legislate and to
adjudicate (as well as a federative power to make war, peace, alliances, etc.).  But it acquires
these powers, and the political authority they embody and serve, only on conditions of trust.  The
inconveniences of the state of nature make it rational for men to give up not all their natural
rights but only their natural right to execute the natural law, and this right not absolutely or
unconditionally but rather provisionally and subject to terms.  The powers and authority acquired
by the corporate body politic, then, are acquired on the condition that they be exercised so as to
secure for all those subject to them the goods put at risk by the inconveniences of the state of
nature, namely the goods of life, liberty and estate within a stable moral order.  Legitimate
political authority depends, then, first on a unanimous delegation of authority by (or consent
from) the governed, and, second on its being exercised in a manner consistent with the purposes
for which it is constituted.  Legitimate political authority is always limited, always constitutional,
and never justified by power alone.  Political authority regularly exercised in a manner hostile to
the purposes for which it is always and everywhere constituted is illegitimate, and in serious
cases citizens may be free, perhaps even duty bound, to resist it.

    The American revolutionaries thought themselves in just such a circumstance – British
subjects with respect to whom the British Crown regularly acted over an extended period of time
and without remedy in a manner hostile to the purposes for which its authority was constituted.
In the minds of the revolutionaries, it was not they who initiated a state of war against the Crown,
it was rather the Crown that initiated a state of war against them by violating the terms of trust
upon which its claim to legitimate political authority over them rested.  While the Declaration of
Independence evidences clear debts to Locke’s political thought, it is unclear what Locke himself
would have thought of the American Declaration.  In 1698, William Molyneux, a friend of
Locke’s and member of the Irish Parliament, argued in a book later central to the Irish Nationalist
cause that England could not legislate for Ireland with the aim of protecting English industry.
There is no evidence that Locke was himself sympathetic to this position.

    For Locke, only the unanimous consent of the governed can legitimate the political
authority over them of the corporate body politic to which they belong.  A corporate body politic
is not, however, a government.  And a government, a particular institutional arrangement, is what
it needs to secure more fully the natural law for its members.  Locke recognized this and argued
that once a people constitutes itself as a corporate body politic, it may as a corporate body politic
adopt for itself a particular institutional form, or government.  To form a government, the
corporate body politic needs, however, not the unanimous consent of all its members, but rather
only the consent of the majority of its full or active members.  These are those (typically few)
who expressly consent to their membership in the body politic and its authority over them.
Locke distinguishes them from those (typically many) who only tacitly consent to their
membership in the body politic and its authority over them.  Those who belong to the body
politic by tacit consent alone need play no role in the formation of a government.

    Those full or active members who, by the will of their majority, determine the structure of
the body politic’s governing institutions may adopt any number of possible constitutional forms.
They need not create a democracy or adopt universal suffrage.  So long as the government they
created exercised its authority over persons at least tacitly consenting to membership in the body
politic in the name of which it acted, and so long as it acted consistent with trust governing the
authority of the body politic over its members, its authority was legitimate.  

IV. Property Rights.

    Among these terms of trust is the requirement that political authority preserve men in
their natural property rights.  On Locke’s view, all of creation belongs ultimately to God.  But to
all men in common God gives the natural world, and to each man individually God gives a body
and a will.  Because men are obligated to preserve themselves and others under the natural law,
they are morally free to appropriate from the natural world held in common by all men so long as
they leave enough and as good for others and do not allow that which they appropriate to spoil.
In making any such appropriation, a man must inevitably mix some of his labor (the product of
the body and will given to him individually by God) with part of the natural world.  Assuming
that his appropriation leaves enough and as good for others and that he does not allow that which
he appropriates to spoil, the mixing of his own labor vests him with a claim to that which he
appropriates sufficient to defeat any counterclaims by others (who have by his appropriation
presumably been left no worse off).  To possess such a claim is to possess, for Locke, a natural
property right.  Since such rights depend only on the natural law, they constitute a moral
constraint on the legitimate use of political authority.  Thus, a government has no right to tax its
subjects without their direct or indirect (through their representatives) consent, as constitutionally
expressed.

    It is the introduction of money as a placeholder for value that makes possible the vast
inequalities in private property that Locke assumes to be a major source of inconvenience in the
state of nature.  This money does by rendering otiose the two provisos that serve as moral
constraints on the individual right to appropriate from the natural world initially held in common
by all men.  Money does not spoil, so its introduction renders otiose the spoilage proviso.  And
money makes possible a commercial economy organized around the acquisition of exchange
value.  Since Locke thought it obvious that even the worst off in such an economy (the landless
laborer in London) is better off than the best off in an economy without money (Locke’s example
is a “king [Chief] in North America” where he assumed natural resources were still held in
common and there was no commercial economy), the introduction of money renders otiose also
the “leave enough and as good for others” proviso.  

    And so it is that Locke argues that an individual might possess a natural right to a large
estate (against a background of substantial inequalities of wealth) beyond the reach of legitimate
political authority.  Indeed, political authority may be legitimately asserted with respect to
individual property rights only to secure them more fully.  Property may be taxed (if legislatively
authorized) to support those institutions necessary to secure property rights, and it may be taken
(through the executive power) for public purposes only if just compensation is made.  Still, it is
important here to remember that which many contemporary libertarian defenders of property
rights as a constraint on legitimate political authority too often forget.  That is that Locke always
insisted that individual property rights never trump a man’s natural right to subsistence.  There is
no natural right to property where others are left without “enough and as good” or where the
assertion of such a right is incompatible with the second fundamental law of nature, to preserve
others.

V. Religious Liberty.

    Locke’s views on religious liberty developed over time.  In the early Two Tracts on
Government (1660), he addressed himself primarily to the authority of the state to regulate
religious practice.  He argued that with respect to “matters indifferent” (that is, those matters of
religious practice with respect to which neither reason nor revelation spoke unambiguously) the
state may and indeed ought to act in the interests of order and stability, and citizens ought to
obey, though they were free to believe whatever they liked.  Locke modified this position only
slightly in his Essay on Toleration (1667).  There he emphasized that those exercising the power
of the state must use wisely their discretion to regulate “matters indifferent” and ought generally
to tolerate (within the general confines of Protestant Christianity) those practices that posed no
direct threat to moral order or political stability.  Notably, atheists and Catholics posed such
threats in Locke’s view.  The former because they rejected the basis of all moral obligation.  The
latter because they subordinated political authority to the authority of the Papacy.  While citizens
remained bound always by the authority of the state, they were entitled to their own judgment
with respect to the wisdom of civil regulations of “matters indifferent” and in any case could
never abdicate their responsibility for their own salvation.

    By 1689 and his Letter on Toleration, Locke’s approach to questions of religious liberty
had shifted.  Whereas he had previously approached such questions from the point of view of the
state’s legitimate interest in order and stability, he approached them in the Letter from the points
of view of religious doctrine and the natural rights of individual.   With respect to religious
doctrine, he maintained that it was blasphemously presumptuous for the state to interfere with
religious belief or practice, since each man was responsible for his own salvation, and salvation
could never be won apart from a voluntarily given inward faith.  From the point of view of the
Church, Locke maintained, there is no religious reason to seek to use the power of the state to
coerce confessions of faith or compliance with religious mandates.  With respect to the rights of
individuals, Locke argued that since no individual possessed any natural right over the soul of
another, individuals could never delegate to the body politic any authority to care for the souls of
others.  The care of men’s souls belongs first to them as individuals and second to the Church.
But the authority of the Church over men’s souls was necessarily constrained by legitimate
political authority.  Thus, while the Church could withhold religious benefits from or even
excommunicate persons who failed to act as required by the salvation of their soul, it could not
alter their political, civil or legal status.  Here Locke argues from both religious and political
considerations for an early version of what today is called separation of Church and state.  Locke
did not think, of course, that any of the foregoing entailed commitments to freedom from religion
or to the exclusion of religious considerations from political judgment.  

    In his Letter Locke also emphasizes the ideal of religious toleration.  He notes that
believing in the orthodoxy of one’s own Church is never a sufficient reason for intolerance of
others, since all believers think their own Church orthodox.  Further, the powers delegated to
political officials are limited to the task of securing for all the earthly goods of life, liberty and
estate and other constitutive elements of the public good.   Accordingly, political officials
possess no power to regulate religious matters of no direct consequence for the realization of
these goods.  Political officials may regulate religion, however, when religion does threaten these
goods.  Thus, they may regulate intolerant religious sects, sects that refuse to admit the separation
of religious and political authority, and sects that refuse to admit the existence of the Christian
God.  In the end, it is toleration for and between Protestant Christians that Locke argues for.
Nevertheless, Locke’s Letter provides the inspiration and many of the arguments for the more
wide-ranging conceptions of religious tolerance typically defended today.

VI.  Conclusion.

    Locke is in many ways a transitional figure in the history of political thought.  He is
simultaneously the last great exponent of early modern natural law theory as well as the first
great exponent of a constitutional republicanism broadly tolerant and rooted in the ideal of
citizens as free equals.  His work remains influential in American political and constitutional
thought and practice and likely will so remain for the next century.