Ameritopia_ The Unmaking of America - Mark R. Levin [42]
Locke also argues for the impartial adjudication of disputes as a compelling reason for the acceptance of consensual government. He wrote, “Firstly, there wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them.…” (9, 124) “Secondly, in the state of Nature there wants a known and indifferent judge, with authority to determine all differences according to the established law.…” “And so whoever has the legislative or supreme power of any common-wealth, is bound to govern by established standing laws, promulgated and known to the people, and not by extemporary decrees; by indifferent and upright judges, who are to decide controversies by those laws” (9, 131).
Consequently, Locke argues that the only legitimate form of government is that which is established by the consent of the members of society; that the only kind of government that can preserve the individual’s God-given natural rights, including his liberty and labor/property, is a representative commonwealth in which there are three branches or at least three distinct responsibilities; that it must operate through just and impartial laws, which are applied equally to everyone in the society, including those in government; and that the extraordinary power of making laws must not be delegated to those who are beyond the reach of the governed.
However, if the government loses its legitimate purpose, its form is irrelevant. “As usurpation is the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to; and this is making use of the power anyone has in his hands, not for the good of those who are under it, but for his own private, separate advantage. When the governor, however entitled, makes not the law, but his will, the rule; and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion” (18, 199).
Locke emphasized that even representative governments, of the kind he described, can take on a tyrannical character. “It is a mistake to think that fault is proper only to monarchies. Other forms of government are liable to it as well as that; for wherever the power that is put in any hands for the government of the people and the preservation of their properties is applied to other ends, and made use of to impoverish, harass, or subdue them to the arbitrary and irregular commands of those that have it, there it presently becomes tyranny, whether those that thus use it are one or many” (18, 201).
Should government turn tyrannical, discarding its original purpose, it ceases to be legitimate. Locke declares, “The reason why men enter into society is the preservation of their property; and the end while they choose and authorize a legislative is that there may be laws made, and rules set, as guards and fences to the properties of all the society, to limit the power and moderate the dominion of every part and member of the society. For since it can never be supposed to be the will of the society that the legislative should have a power to destroy that which everyone designs to secure by entering into society, and for which the people submitted themselves to legislators of their own making; whenever the legislators endeavour to take away and destroy the property