This essay systematically reformulates an earlier argument about Locke and new world slavery, adding attention to Indians, natural law, and Locke's reception. Locke followed Grotian natural law in constructing a just-war theory of slavery. Unlike Grotius, though, he severely restricted the theory, making it inapplicable to America. It only fit resistance to “absolute power” in Stuart England. Locke was nonetheless an agent of British colonialism who issued instructions governing slavery. Yet they do not inform his theory—or vice versa. This creates (...) hermeneutical problems and raises charges of racism. If Locke deserves the epithet “racist,” it is not for his having a racial doctrine justifying slavery. None of this makes for a flattering portrait. Locke's reputation as the champion of liberty would not survive the contradictions in which new world slavery ensnared him. Evidence for this may be found in Locke's reception, including by Southern apologists for slavery. (shrink)

This article probes the relationship among constitutionalism, extra-legal prerogative power, and citizen judgment. While much has been written about the nature of Lockean prerogative, and while his theory serves as a direct inspiration for contemporary "normative extra-legalists," key participants in the debate over emergency powers, less attention has been paid to how the people judge prerogative. Attention to this issue is useful because an examination of the process of political judgment of extra-legalism in Locke leads to a complication of the (...) current extra-legalist vision of democratic mechanisms of accountability. The author argues that the extra-legal approach is right to consider the role of democratic publics in potentially constraining the exercise of emergency powers but wrong to formulate that role as one extra-constitutional power checking another extra-constitutional power. The author situates both prerogative power and citizen judgment of it at the threshold of the constitutional order. (shrink)