Abstract

Carl Schmitt contends that liberal constitutionalism or the rule of law fails because it neglects the state of exception and the political, namely politics viewed as a distinction between friend and enemy groups. Yet, as a representative of liberal constitutionalism, Locke grapples with the state of exception by highlighting a magistrate prerogative and/or the right of the majority to act during a serious political crisis. Rather than neglecting the political, Locke’s state of war presupposes it. My thesis is that Schmitt’s assault against Locke’s liberal constitutionalism is one-sided, and hence Locke’s militant liberalism can disarm it. In support of my thesis I shall argue (1) that Schmitt overlooks Locke’s distinction between liberty and license; (2) that, ironically, Schmitt’s conception of politics resembles Locke’s state of war; and (3) that Locke’s liberalism is militant rather than neutral because it excludes extremists from enjoying equal civil and political rights, as reasonable citizens do, to compete for political power.