Sect. 197. AS conquest may be called a foreign usurpation, so usurpation is a kind of domestic conquest, with this difference, that an usurper can never have right on his side, it being no usurpation, but where one is got into the possession of what another has right to. This, so far as it is usurpation, is a change only of persons, but not of the forms and rules of the government: for if the usurper extend his power beyond what of right belonged to the lawful princes, or governors of the commonwealth, it is tyranny added to usurpation.
Sect. 198. In all lawful governments, the designation of the persons, who are to bear rule, is as natural and necessary a part as the form of the government itself, and is that which had its establishment originally from the people; the anarchy being much alike, to have no form of government at all; or to agree, that it shall be monarchical, but to appoint no way to design the person that shall have the power, and be the monarch. Hence all commonwealths, with the form of government established, have rules also of appointing those who are to have any share in the public authority, and settled methods of conveying the right to them: for the anarchy is much alike, to have no form of government at all; or to agree that it shall be monarchical, but to appoint no way to know or design the person that shall have the power, and be the monarch. Whoever gets into the exercise of any part of the power, by other ways than what the laws of the community have prescribed, hath no right to be obeyed, though the form of the commonwealth be still preserved; since he is not the person the laws have appointed, and consequently not the person the people have consented to. Nor can such an usurper, or any deriving from him, ever have a title, till the people are both at liberty to consent, and have actually consented to allow, and confirm in him the power he hath till then usurped.--John Locke, Second Treatise.
One of the oddities of what passes for learned public discussion of American politics since the rise of Trump, is the near total absence of John Locke. The one exception also proves the point: in a New York Times editorial (back in 2019), Locke is mentioned but then set aside for "James Madison, who was as committed as either Locke or Smith to the supremacy of individual liberty but was acutely aware of the inherent tension between liberty and democracy."* It is a peculiar reason to set aside Locke (in the name of saving liberalism) for, of course, that is one of Locke's great themes. Anyway, here I use Locke because he gives us the words we need. And while Locke never acts smarter than his readers, Locke actually thought hard about circumstances when checks and balances may fail. And, while I yield to few in my admiration for Madison, it is not entirely clear the founders can help here (recall this post on Federalist 70; and see also the strange optimism in Federalist 28--although both were probably written by Hamilton).
So, ahead of the election President Trump started to signal he was willing to become an usurper. His present unwillingness to concede the obvious -- that he was defeated in the election -- and, more important, his legal actions and the behavior of some of his political partisans (I am thinking of Senator Graham's phone call to the Georgia Secretary of State and the attempts to prevent certification of results in Wayne Co. in particular) all are properly conceptualized in terms of usurpation.
Now, it is clear that Locke assumes that usurpation is extra-legal, although note that this is compatible with it being non-violent. And part of the trickiness of the present situation is that Trump and his partisans are not subtle about signaling that they expect, and clearly actively try, to get others to bend the law in their favor. For the rule of law is (recall) fragile when (what we may call) the agents and upholders of the law lack integrity or courage. But even if Trump could prevail with some and obtain formal legal recognition for his actions, it is clear his actions are by no means in the spirit of the laws. And, given that the constitution prevents a further re-election, he would remain an usurper (since the people lack the "liberty to consent," and opportunity to "confirm in him the power he hath till then usurped").
As an aside, when the Senate refused to convict President Trump after the House had impeached him, it was said, for example by Senator Lamar Alexander, that 'the consequences of the president's actions should be decided in the next election.' I believe, as I write this, Sen. Alexander has not yet congratulated the President-elect or acknowledged his victory.+
Of course, it is natural to read Locke as kind of assuming that the usurper is not already a legal ruler eager to overstay his welcome. But I think it says something of his foresight that his analysis is compatible with our circumstances. And I doubt this is a coincidence. Because Locke is pretty sensitive to the fact that legal authority, which holds power in trust, can degenerate; he notes all "forms of government are liable to it." (201)
For Locke degeneration starts "when the governor, however intitled, makes not the law, but his will, the rule." (199) And this shift from the rule of law to rule by will is necessary to be considered tyrannical. It is not sufficient because sometimes the laws are broken for the good of the population. As Locke put its on the frontispiece of the work, Salus populi suprema lex, and explains, while quoting it, in sect 158: "whatsoever shall be done manifestly for the good of the people, and the establishing the government upon its true foundations, is, and always will be, just prerogative." So, for Locke a tyrant is a law-breaker acting in his own interest (and generally also likely "to impoverish, harass, or subdue" the people "to the arbitrary and irregular commands of those that have" power. (201; (202)))
Above, i noted that certain political acts like some kinds of usurpation may not formally break the law, even though they bend it greatly against their proper intent. Locke alerts the reader to the significance of this; undermining of the spirit of the law systematically discourages redress through the law. And once such redress is thought impossible, or very discouraged, the door to political violence is opened; as Locke puts it "where the injured party may be relieved, and his damages repaired by appeal to the law, there can be no pretence for force, which is only to be used where a man is intercepted from appealing to the law." (207) That is to say, seriously corrupting the spirit of the rule of law is a return to a (Hobbesian!) state of nature.
Now, my interest in Locke here is to discuss a passage which is exactly on the undermining of what I have been calling the spirit of the rule of law; Locke calls this 'to elude the law' and he uses it in a passage that evokes (and responds to) Plato's ship of state analogy:
210. But if all the world shall observe pretences of one kind, and actions of another; arts used to elude the law, and the trust of prerogative (which is an arbitrary power in some things left in the prince's hand to do good, not harm to the people) employed contrary to the end for which it was given: if the people shall find the ministers and subordinate magistrates chosen suitable to such ends, and favoured, or laid by, proportionably as they promote or oppose them: if they see several experiments made of arbitrary power, and that religion underhand favoured, (tho' publicly proclaimed against) which is readiest to introduce it; and the operators in it supported, as much as may be; and when that cannot be done, yet approved still, and liked the better: if a long train of actions shew the councils all tending that way; how can a man any more hinder himself from being persuaded in his own mind, which way things are going; or from casting about how to save himself, than he could from believing the captain of the ship he was in, was carrying him, and the rest of the company, to Algiers, when he found him always steering that course, though cross winds, leaks in his ship, and want of men and provisions did often force him to turn his course another way for some time, which he steadily returned to again, as soon as the wind, weather, and other circumstances would let him?
As Emily C. Nacol observes in chapter 3 of An Age of Risk, which prompted the present digression, Algiers was then a notorious slave market. She writes, "Locke wants his citizens to be vigilant subjects who guard against tyranny." (60-1). And as Nacol notes, Locke is quite explicit that there is a right to preventive rebellion, he writes that "men can never be secure from tyranny, if there be no means to escape it till they are perfectly under it: and therefore it is, that they have not only a right to get out of it, but to prevent it." (220) Here we see that Locke anticipates Popper (recall) and allows that a kind of defensive violence against creeping usurpation and tyranny is permitted.
Let me wrap up. One might think that by talking about "the people," Locke assumes -- in proto-Rousseauian fashion -- too much civic unity. One might worry that he misses that in practice, in the context of polarization, eluding the law is a factional affair. And one may think that Locke, thus, misses that an usurper can count on plenty of support while undermining the constitutional order. But this, too, is anticipated by Locke. Sometimes "factions have been fatal to states and kingdoms" (230).
So, here's the bottom line, the longer it's genuinely thought possible that Trump's usurpation might succeed, and that sufficient number of his more prominent supporters are willing to allow it to succeed, the more likely and more legitimate political violence becomes Stateside on Locke's analysis. Ideally sooner rather than later -- as Trump's legal strategy has clearly run aground--, as states certify results, leading Republicans must signal publically that Trump has genuinely lost the election and it is time to move on to secure a peaceful transfer of power.
Even the fact that one must write such sentences is symptomatic of a deeper problem. Trump's initial rise to power demonstrated that the trust between Republican party elites and their primary voters was broken. The current party elites are clearly loath to re-open such wounds even though after four years of his Presidency, the American electorate has opted for a partial restoration of the situation ex ante. I say 'partial' because few Republican politicians paid an electoral price for their continued support of Trump. And while we're not quite at the precipice yet, we're starting to inch very close to it. And this is, thus, the most dangerous period because, as Locke notes, not only once one falls over it, it's too late, but because one now must face -- and this is the great theme of Nacol's argument -- the uncertainty in judging how other citizens will act, if one acts to prevent such collapse.
*Here is the whole paragraph:
+It is worth noting that Senator Romney's main argument to convict is incredibly Lockean: "Accordingly, the president is guilty of an appalling abuse of public trust...Corrupting an election to keep oneself in office is perhaps the most abusive and destructive violation of one's oath of office that I can imagine."
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