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A Constitutional Framework: The Relationship of Supreme Power and Individual Rights in the Second Treatise

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A Constitutional Framework: The Relationship of Supreme Power and Individual Rights in the Second Treatise

The supremacy of legislative power is a deceptive phrase in the Second Treatise. If one were to follow Locke’s blueprint for the original formation of the commonwealth closely, it would become apparent that supreme power in political society rests with the people, not the legislature, because ultimately, there must be a constitution that is written by the people. In order to most clearly see this, a distinction must be drawn between the basic political society and the higher level institution of government, and the events that take place in each sphere must be differentiated. In light of this distinction, the relationship between individual rights and the rights of the legislative can be seen to be much more dynamic as supreme power may shift from one to the other depending on the actions of the legislative and the reactions of the people. The retention of individual natural rights within Locke’s government becomes significantly less problematic than if the legislative were invariably supreme, although the recourse available to the individual who finds himself outside the majority is still relatively limited by the power of the majority in political society.

The fundamental premise that a commonwealth is formed before its government is created implies that there exists a space of time between men’s leaving the state of nature and the establishment of a government, and it is this time that separates Locke’s initial “political society” from his later stage of political society with a government; he later calls this stage “society” itself as distinct from “government” (XIX, 211) . The events of the transition stage are cri...

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...im others, like the protection of his property and the right to appeal to disinterested judges. The constitution is the means by which these rights may be preserved against the power of the legislative in government, and the standard by which the people may measure the justice of the laws promulgated by the legislative. Within the constitutional framework, Locke provides for the protection of the individual from the government through the codification of his natural rights, and the protection of the individual from the majority is at least partially secured by the protection of his property. The problem of the tyranny of the majority is not wholly solved by the introduction of a constitution into political society, but Locke seems to see his safeguards as the most expansive that can be achieved under a government to which men in nature must give something up to enter.
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