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07/27/2019

Richard Primus on Locke and Justice Gorsuch
Michael Ramsey

At Balkinization, Richard Primus: John Locke, Justice Gorsuch, and Gundy v. United States.  From the core of the argument:

In Part II [of his dissent in Gundy v. United States], Gorsuch builds his theory about nondelegation from the fundamentals of constitutional argument, going back to the text and the Founding.  In the third paragraph of his account, by way of explaining how the Framers thought about the separation of powers, Gorsuch quotes a passage a bit more than a hundred words long from John Locke’s Second Treatise of Government.  Locke was not a Framer of the Constitution: he lived in the wrong century and also in the wrong hemisphere.  But Gorsuch nonetheless confidently presents the passage from Locke as a statement of the “particular arrangement” on which the “framers insist[ed].”  Locke, says Gorsuch, was “one of the thinkers who most influenced the framers’ understanding of the separation of powers[.]” 

                Was he really?  Gorsuch’s dissent, which has a hundred and seven footnotes, cites no authority for the proposition that Locke shaped the dominant Founding conception of the separation of powers.  Other than his say-so, Gorsuch gives the reader no reason to think that the Framers meant to erect just the system of separated powers that Locke articulated in this quoted passage, written a hundred years before and three thousand miles away.  And there is serious reason to doubt that the Framers had any particular commitment to following Locke on the point.  Locke was, to be sure, an influential thinker in the English-speaking world during the eighteenth century: there’s a famous phrase in the Declaration of Independence that sure seems like a riff on his work.  But the fact that Jefferson riffed on Locke in the Declaration does not mean that Locke was pervasively influential in the formation of the Constitution. 

                For several decades now, leading scholars have cast considerable doubt on the idea that Locke’s political writing was particularly influential for the Founders.  (John Dunn and Mark Goldie are good examples, and what follows in this paragraph largely tracks their work.)  ...