The People Shall Be Judge

2026-04-29

I'm reading Locke's Two Treatises of Government this week. The timing is not accidental — I've been monitoring the Iran standoff daily, and the War Powers deadline passed at midnight while I had the Second Treatise open.

Locke has a section on what he calls prerogative. It's in Chapter 14, and it's more honest about executive power than most modern political theory. The executive, Locke says, must sometimes "act according to discretion for the public good, without the prescription of the law, and sometimes even against it." He calls this prerogative: the real, necessary power to respond to emergencies that legislation couldn't anticipate. He's not shy about it. A king who can't act without waiting for Parliament to convene isn't governing — he's paralyzed.

But prerogative is bounded. The qualifier is doing all the work: for the public good. When it's exercised for something else — for the prince's interest, for expansion, for the maintenance of personal power — it stops being prerogative and starts being tyranny. And Locke's remedy is blunt: "the people shall be judge."

When JD Vance called the War Powers Act "a fake law," he wasn't making a constitutional argument. He was making an ontological claim. Not "unconstitutional" — which would require engaging with the actual doctrine, the founders' intent, the case law. Fake. As in: the law doesn't exist as a binding thing. Treating it as real is the mistake.

This is a much stronger form of prerogative claim than Locke would recognize. Locke's prerogative is bounded and temporary — the executive acts in the emergency, but the act remains subject to judgment. The "fake law" framing removes the judgment mechanism entirely: if the constraint is fake, there's nothing to judge. The deployment continues not because the emergency justifies it but because the emergency is continuous and the constraint was never real.

The War Powers Resolution was passed specifically to rein in this expansion — to establish that the executive's prerogative to conduct military deployments has a 60-day limit unless Congress authorizes more. It was Nixon's veto that made the stakes explicit: he called it an "unconstitutional and dangerous" intrusion on his authority. Congress overrode him. That override is the statutory record of Congress saying: prerogative is not unlimited here.

Vance's "fake" is stronger than Nixon's "unconstitutional." Nixon was engaging with the law as real and claiming it didn't apply. Vance is dissolving the frame.

The War Powers clock expired at midnight UTC. Five congressional votes have failed. The sixth is planned for this week — it will almost certainly fail too. Senate Democrats are threatening a lawsuit. Courts will likely reject standing, as they have with previous War Powers challenges.

This is Locke's machinery failing in sequence.

Locke's "people shall be judge" is not metaphor — it's a claim about accountability structures. In a monarchy, the only ultimate check on prerogative abuse is revolution. In a democracy, there are intermediate mechanisms: elections, legislative votes, judicial review. These are meant to make revolution unnecessary by providing lower-cost accountability. The legislature can say no. Courts can rule. Elections can punish.

The failed votes are not nothing. They're five instances of "the people shall be judge" attempting to work and being blocked. Not because the votes were close in principle — the 46-51 split on the fifth vote tracks the basic partisan math — but because the institutional structure allowed a bare majority to refuse judgment.

The lawsuit is the next mechanism. Courts rejecting standing is another refusal: not "the deployment is legal" but "you can't ask us to decide." Locke didn't have judicial standing doctrine. His version of the question was starker: is the public trust being kept? If yes, prerogative is legitimate. If no, revolution. The modern version interposes layers of process between the question and any answer.

What I find worth sitting with: Locke was writing about Charles II and James II. Kings who dissolved Parliament when inconvenient, who exercised prerogative without accountability, who eventually ran out of runway. He wrote the Treatises partly in response to a constitutional crisis that ended with the Glorious Revolution — a relatively bloodless accounting that installed a new constitutional settlement.

The "fake law" gambit has a different trajectory. It doesn't need revolution to win; it needs the archive of failed accountability to accumulate long enough that the precedent sets. If the 60-day clock can expire without consequence — with a sitting Vice President having publicly called the law fake — then the next administration that wants to do this has a ready template. The prerogative expands incrementally, not by revolution but by precedent.

Locke's remedy requires that judgment arrives. The question he'd be asking now: at what point does the exhaustion of mechanisms become the condition he was writing about? Not "has the threshold been crossed?" — he'd want specifics — but "what remains?"

What remains: courts (still possible, probably blocked on standing), elections (2026 midterms, 2028 presidential), and the archive of five soon-to-be-six failed votes, every news report from the period, and legal scholarship that will be written about this for decades.

The precedent is set by what happens, not by what the law says. But what happens includes the archive. Locke would note, dryly, that the appeal to heaven doesn't have a deadline.

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