WEBVTT 00:01.370 --> 00:06.280 Professor Steven Smith: I want to look at two sets of 00:06.280 --> 00:07.930 issues. I want to in, 00:07.928 --> 00:10.208 a way, conclude my interpretation, 00:10.209 --> 00:13.249 my reading of the Second Treatise, 00:13.250 --> 00:17.460 by focusing on the role of executive power in Locke's 00:17.458 --> 00:20.748 theory of government, Locke's theory of the 00:20.752 --> 00:24.092 constitutional state, particularly focusing on the 00:24.094 --> 00:27.914 role of the executive, vis-a-vis the legislative 00:27.908 --> 00:31.788 branch of government, and then I want to turn a 00:31.787 --> 00:36.507 little more speculatively to thinking about Locke and the 00:36.509 --> 00:42.159 American regime and the current state of political philosophy, 00:42.160 --> 00:47.240 modern contemporary American political philosophy. 00:47.240 --> 00:50.620 But let me start first by going back and sticking with the 00:50.623 --> 00:53.893 Second Treatise by talking a little bit about the 00:53.888 --> 00:56.498 role of legislative and executive power. 00:56.500 --> 01:00.480 The last time, I think, I was concluding by 01:00.478 --> 01:05.118 arguing that Locke doesn't endorse necessarily one 01:05.119 --> 01:09.759 particular form of government from any other. 01:09.760 --> 01:13.250 He is an advocate of what we have come to call limited 01:13.254 --> 01:16.094 government, of constitutional government. 01:16.090 --> 01:21.270 There is that important passage where he ridicules the Hobbesian 01:21.273 --> 01:26.543 sovereign as a lion and tells us we did not enter into the social 01:26.538 --> 01:29.498 compact to be devoured by lions. 01:29.500 --> 01:34.250 He says, the form of government must be limited although he's 01:34.248 --> 01:37.728 relatively open or at least non-committal, 01:37.730 --> 01:43.660 agnostic you might say, as to what particular form that 01:43.662 --> 01:46.082 government may take. 01:46.080 --> 01:50.610 One feature of this form of government that he thinks is 01:50.608 --> 01:54.228 very important, is that it must in some sense 01:54.230 --> 01:59.760 embody a separation of powers, powers must be made to check 01:59.760 --> 02:05.420 one another, what he calls in the book the subordination of 02:05.415 --> 02:07.685 powers. This is Locke's doctrine and 02:07.685 --> 02:08.745 you will see it there. 02:08.750 --> 02:12.470 We often associate it with Montesquieu or sometimes with 02:12.469 --> 02:16.609 the federalist authors but, in fact, Locke himself is a 02:16.610 --> 02:21.700 strong advocate of what he calls the subordination or separation 02:21.699 --> 02:25.519 of powers, not exactly the same as we'll 02:25.516 --> 02:30.956 see between our understanding of executive legislative and 02:30.955 --> 02:35.555 judicial, but nevertheless a separation 02:35.559 --> 02:39.969 nonetheless. However, in the first instance, 02:39.974 --> 02:45.794 Locke emphasizes and in fact he continually affirms nevertheless 02:45.794 --> 02:49.494 the primacy of legislative authority. 02:49.490 --> 02:54.130 In England, in the England at his time and even today, 02:54.128 --> 02:58.678 that means a doctrine of what is called parliamentary 02:58.678 --> 03:03.928 supremacy but he says that the first and fundamental positive 03:03.929 --> 03:08.649 law of all constitutions is in establishing that of the 03:08.654 --> 03:10.934 legislative power. 03:10.930 --> 03:13.440 The first act, after the completion of the 03:13.435 --> 03:16.125 social contract, he says, is establishing the 03:16.125 --> 03:17.465 legislative power. 03:17.470 --> 03:22.760 It is the lawmaking authority of government that is supreme, 03:22.758 --> 03:24.998 he wishes to emphasize. 03:25.000 --> 03:29.580 This seems to push Locke, you might, say more in the 03:29.584 --> 03:32.734 small ‘d' democratic direction. 03:32.729 --> 03:37.899 It is not so much executive power, the power of a prince, 03:37.899 --> 03:43.529 but rather the legislature, the parliament that is supreme. 03:43.530 --> 03:46.970 There is nothing more important, in Locke's theory of 03:46.974 --> 03:51.034 constitutional government, than the existence of what he 03:51.033 --> 03:54.683 continually refers to as settled or known laws, 03:54.680 --> 03:59.590 settled laws that serve against arbitrary rule. 03:59.590 --> 04:03.190 In many ways, the purpose of government for 04:03.193 --> 04:08.173 Locke is much less to offset the dangers of returning to an 04:08.170 --> 04:13.320 anarchic state of nature as it was for Hobbes than to prevent 04:13.318 --> 04:19.408 the possibility of the emergence of tyrannical or despotic power, 04:19.410 --> 04:23.450 tyrannical or despotic sovereign, and of course, 04:23.454 --> 04:28.534 Locke's writing is very much bound up with the big and major 04:28.532 --> 04:33.442 constitutional crisis of his time leading to the overthrow 04:33.438 --> 04:39.268 and expulsion of a king, James II. 04:39.269 --> 04:42.499 Yet in many ways, even though Locke is the great 04:42.497 --> 04:44.967 advocate of legislative supremacy, 04:44.970 --> 04:50.190 he obviously cannot and does not wish to dispense altogether 04:50.185 --> 04:53.275 with the role of executive power. 04:53.279 --> 04:58.869 He often treats the executive, whether that be in the form of 04:58.867 --> 05:04.177 a prince, a monarch or perhaps even a body in a cabinet of 05:04.176 --> 05:06.966 chief officers as it were. 05:06.970 --> 05:10.900 He treats them often simply as if they were an agent of the 05:10.900 --> 05:13.340 legislative or of the legislature. 05:13.339 --> 05:17.299 The purpose of the executive, he sometimes seems to write, 05:17.301 --> 05:21.541 is merely that of carrying out the will of the legislature. 05:21.540 --> 05:25.410 In Locke's language, "the executive power is 05:25.413 --> 05:30.823 ministerial and subordinate to the legislature," section 153, 05:30.818 --> 05:33.478 I believe. The executive, 05:33.479 --> 05:38.679 again, on some aspects of Locke's writing seems to be 05:38.675 --> 05:44.365 little more than a cipher in comparison to the doctrine of 05:44.371 --> 05:47.071 legislative supremacy. 05:47.069 --> 05:51.009 And yet, Locke here is not altogether consistent, 05:51.010 --> 05:54.790 one has to say, because he understands in every 05:54.786 --> 05:59.956 community there is a need for a distinctive branch of government 05:59.958 --> 06:03.568 dealing with matters of war and peace. 06:03.569 --> 06:06.789 Locke calls this the federative power. 06:06.790 --> 06:09.600 Every community, he says, like Hobbes, 06:09.597 --> 06:13.687 is to every other community what every individual is to 06:13.694 --> 06:17.494 every other individual in the state of nature and a 06:17.487 --> 06:21.427 distinctive federative or war-making power within the 06:21.432 --> 06:25.232 government is necessary for dealing with matters of 06:25.226 --> 06:29.366 international conflict, conflict between states. 06:29.370 --> 06:33.990 And in a remarkable passage, Locke notes that this power, 06:33.990 --> 06:38.530 he says, cannot be bound by antecedent standing positive 06:38.529 --> 06:43.279 laws but it must be left to, quote, "the prudence and wisdom 06:43.279 --> 06:47.769 of those whose hands it is in to be managed for the public good." 06:47.769 --> 06:50.789 In other words, Locke seems to suggest that 06:50.792 --> 06:54.392 this particular kind, this branch of government, 06:54.389 --> 06:58.419 this federative branch which falls to some degree under the 06:58.420 --> 07:02.730 executive, must have a certain latitude even apart from the law 07:02.728 --> 07:05.768 that relies, he says, on the prudence and 07:05.768 --> 07:09.628 wisdom of those whose hands it is in to manage it for the 07:09.626 --> 07:11.946 public good. In other words, 07:11.945 --> 07:17.335 matters of war and peace cannot be left to the legislature or to 07:17.343 --> 07:20.453 standing laws, as he calls them, 07:20.448 --> 07:25.588 alone but requires the intervention of strong leaders, 07:25.586 --> 07:30.916 what he calls in an absolutely stunning passage god-like 07:30.919 --> 07:34.449 princes, section--if you don't believe 07:34.449 --> 07:38.229 me, section 166. Locke's reference here to 07:38.230 --> 07:43.820 god-like princes seems to recall Machiavelli in many ways, 07:43.818 --> 07:47.738 Machiavelli's talk of armed prophets. 07:47.740 --> 07:51.500 It is necessary, in extreme situations, 07:51.498 --> 07:56.838 for such princes to call on their prerogative power. 07:56.839 --> 07:59.279 It is impossible, Locke writes, 07:59.277 --> 08:03.907 to foresee and so by laws to provide for all the accidents 08:03.909 --> 08:09.109 and necessities that may concern the public and that during, 08:09.110 --> 08:12.560 in other words, contingencies or emergency 08:12.555 --> 08:17.845 situations the executive must be empowered with this prerogative 08:17.850 --> 08:21.800 power to act for the good of the community. 08:21.800 --> 08:25.760 For this reason it seems, the executive is not simply a 08:25.756 --> 08:29.416 tool or an agent of the legislature but he says, 08:29.420 --> 08:33.490 again, must have the power to act according to discretion, 08:33.488 --> 08:36.768 that is to say, according to his own discretion 08:36.772 --> 08:40.772 for the public good without the prescription of law, 08:40.770 --> 08:43.680 those are Locke's own words. 08:43.679 --> 08:48.639 How to balance his argument for constitutional government and 08:48.640 --> 08:53.600 legislative supremacy with this doctrine of prerogative power 08:53.600 --> 08:58.400 and what seems to be a kind of power of what he calls in no 08:58.396 --> 09:02.696 uncertain term the god-like princes and their need to 09:02.695 --> 09:05.005 exercise this power? 09:05.009 --> 09:07.729 Locke's prerogative is, in many ways, 09:07.729 --> 09:11.879 the result of simply the inability of law to foresee all 09:11.884 --> 09:16.044 possible circumstances, all possible contingencies. 09:16.039 --> 09:19.399 That's an argument that goes as far back as Aristotle, 09:19.404 --> 09:22.204 we've seen. Our inability to make rules 09:22.202 --> 09:26.512 that can apply to all possible events, makes it necessary to 09:26.514 --> 09:31.044 leave some discretionary power in the hands of the executive to 09:31.044 --> 09:33.314 act for the public safety. 09:33.309 --> 09:38.069 One of the examples that Locke gives of the use of this power 09:38.067 --> 09:42.347 is in fact a domestic, not an international issue, 09:42.347 --> 09:46.487 which is to say, in the case of a fire in a city 09:46.486 --> 09:51.096 it is sometimes necessary, he says, in his day for the 09:51.101 --> 09:55.841 fire department to tear down the house of an innocent person to 09:55.835 --> 09:59.725 prevent the fire from spreading to other houses. 09:59.730 --> 10:03.400 This is acting for the public good of the community, 10:03.402 --> 10:07.722 even while in some ways it's clearly a violation of rights of 10:07.723 --> 10:09.383 property and so on. 10:09.379 --> 10:13.669 He understands this as a piece of prerogative power acting for 10:13.665 --> 10:16.325 the public good. In fact, the example is not so 10:16.332 --> 10:18.992 far fetched. Think today for example about 10:18.991 --> 10:20.761 arguments we have today. 10:20.759 --> 10:23.949 Even in Connecticut, there's a big argument going on 10:23.948 --> 10:27.198 about the right of what's called "eminent domain," 10:27.200 --> 10:33.760 the right of the government to absorb or to take over private 10:33.763 --> 10:38.543 properties whenever, usually for things like schools 10:38.543 --> 10:43.293 or airports but also for general improvement when it is thought 10:43.290 --> 10:45.970 it will enhance the public good. 10:45.970 --> 10:49.700 There's a big debate going on right now out in New London and 10:49.697 --> 10:53.107 in Brooklyn also with the argument about the creation of 10:53.113 --> 10:55.853 some civic center, some sports arena that will 10:55.853 --> 10:58.653 require the demolition of certain neighborhood houses. 10:58.649 --> 11:01.599 And there's a big debate about this eminent domain. 11:01.600 --> 11:04.900 What is that, but in a way Locke's example of 11:04.897 --> 11:08.567 prerogative power, acting, doing something that is 11:08.570 --> 11:12.840 somehow said to be for the public good but that represents 11:12.842 --> 11:16.292 some kind of extra constitutional power? 11:16.289 --> 11:19.749 But the question for Locke, as for any constitutional 11:19.747 --> 11:23.667 lawyer, is what are the limits of this prerogative power? 11:23.669 --> 11:28.739 What check, if any, is there on this power to 11:28.743 --> 11:31.283 prevent their abuse? 11:31.280 --> 11:34.260 Well, Locke doesn't exactly say. 11:34.260 --> 11:36.340 Yes. Right. 11:36.340 --> 11:37.470 He doesn't exactly say. 11:37.470 --> 11:42.190 He raises this question to be sure, of fundamental importance 11:42.185 --> 11:44.695 for constitutional government. 11:44.700 --> 11:47.810 Does executive authority, he asked us, 11:47.811 --> 11:52.691 extend to all things even or especially in times of war? 11:52.690 --> 11:58.380 Think about the debates that are going on now about detainees 11:58.378 --> 12:04.258 at Guantanamo or the issues of domestic spying when it comes to 12:04.256 --> 12:07.286 issues of the war on terror. 12:07.289 --> 12:10.839 Are these examples of prerogative power, 12:10.842 --> 12:14.762 that is to say, the executive acting outside 12:14.760 --> 12:20.140 the limits or the bounds of constitutional authority for the 12:20.135 --> 12:25.415 sake of protecting the public good or are these examples of 12:25.419 --> 12:28.789 kind of political absolutism? 12:28.789 --> 12:32.939 Is the invocation of this power, in some ways, 12:32.942 --> 12:38.482 going down the slippery slope to despotism and absolutism? 12:38.480 --> 12:43.470 I will leave it to you or your sections to try to discuss these 12:43.468 --> 12:47.888 matters but Locke himself praises those who he calls the 12:47.892 --> 12:52.482 wisest and best princes of England as being those who have 12:52.478 --> 12:56.418 exercised the largest prerogative on behalf of the 12:56.420 --> 13:00.730 public good. This is beginning to sound more 13:00.730 --> 13:05.440 and more in respects like Machiavelli than the advocate 13:05.435 --> 13:08.305 of, again, limited government. 13:08.309 --> 13:13.479 This power comes into play, he says, especially during 13:13.477 --> 13:19.027 times of national crisis or emergency when it is necessary 13:19.034 --> 13:23.524 to act for the public safety in some ways. 13:23.519 --> 13:27.979 And again, this seems to have special resonance for us today 13:27.977 --> 13:32.127 as we face issues like states of emergency and states of 13:32.132 --> 13:35.622 exception. There are in fact political 13:35.616 --> 13:41.006 theorists, one name comes to mind, a twentieth-century German 13:41.009 --> 13:46.759 legal philosopher by the name of Carl Schmitt who argued that the 13:46.761 --> 13:51.531 state of emergency or the exceptional situation is the 13:51.525 --> 13:57.275 essence of politics and that the person or body who has the power 13:57.278 --> 14:03.298 to declare the exception is none other than the sovereign. 14:03.299 --> 14:07.669 So from Schmitt's point of view you might say this idea of 14:07.668 --> 14:12.188 prerogative is a kind of extra constitutional power that the 14:12.189 --> 14:15.869 statesman must of necessity utilize when ordinary 14:15.867 --> 14:20.227 constitutional operations, like the rule of law, 14:20.228 --> 14:22.408 prove to be inadequate. 14:22.410 --> 14:25.710 14:25.710 --> 14:30.630 But consider another example if you like, that prerogative 14:30.625 --> 14:35.445 power, about prerogative powers that maybe granted by the 14:35.454 --> 14:39.214 Constitution. Consider Lincoln's famous 14:39.212 --> 14:44.442 suspension of habeas corpus during the Civil War. 14:44.440 --> 14:49.010 Lincoln, interestingly, did not take this extraordinary 14:49.008 --> 14:53.578 step by appealing to an extra-constitutional power that 14:53.577 --> 14:56.197 obtains in times of crisis. 14:56.200 --> 15:00.790 Rather, Lincoln argued quite forcefully that this sort of 15:00.786 --> 15:05.206 prerogative power is already deeply embedded within the 15:05.208 --> 15:08.728 structure of constitutional government. 15:08.730 --> 15:11.900 He cites the Constitution when it came 15:11.904 --> 15:15.084 to the suspension of habeas corpus. 15:15.080 --> 15:19.890 The Constitution writes, "The privilege of the writ of 15:19.893 --> 15:24.393 habeas corpus shall not be suspended unless when in cases 15:24.386 --> 15:29.196 of rebellion or invasion the public safety requires it." 15:29.200 --> 15:33.050 In other words, the Constitution itself 15:33.051 --> 15:37.671 seems to allow for this extraordinary kind of action at 15:37.673 --> 15:42.983 least in cases of rebellion or invasion when it says the public 15:42.980 --> 15:45.120 safety requires it. 15:45.120 --> 15:48.800 The Constitution seems to embody within itself, 15:48.803 --> 15:52.923 our constitution that is, this Lockean power of 15:52.920 --> 15:58.900 prerogative that comes into effect or can be legitimately 15:58.895 --> 16:03.905 exercised in times of rebellion or invasion. 16:03.909 --> 16:07.959 Are we living in that kind of age now, not rebellion perhaps 16:07.960 --> 16:12.300 but invasion? Well, think about that again. 16:12.299 --> 16:18.679 Are these arguments applicable to our situation today, 16:18.678 --> 16:23.968 in some sense, when it comes to debates about 16:23.973 --> 16:31.313 the extent of executive power to embark on these extraordinary 16:31.314 --> 16:35.464 measures? And yet at the same time, 16:35.455 --> 16:41.055 Locke is aware clearly of the potential abuse of this kind of 16:41.058 --> 16:44.508 prerogative. He asks, who will judge, 16:44.510 --> 16:49.210 who can judge whether the discretion of the executive is 16:49.208 --> 16:54.678 being used for the public safety or the public good or whether it 16:54.675 --> 16:58.515 is simply a kind of usurpation of power? 16:58.519 --> 17:03.329 In these moments of high constitutional crisis between 17:03.325 --> 17:07.585 conflicting powers of government, in such cases, 17:07.587 --> 17:11.937 Locke says there shall be no judge on earth. 17:11.940 --> 17:16.660 He says the people have no other remedy in this but to 17:16.658 --> 17:18.348 appeal to Heaven. 17:18.350 --> 17:20.850 This is in section 168. 17:20.849 --> 17:26.289 How much is contained in that term "appeal to Heaven?" 17:26.289 --> 17:30.469 What does Locke mean in terms of high constitutional crisis 17:30.466 --> 17:34.926 when he says there is no judge on earth, the people must appeal 17:34.931 --> 17:38.571 to Heaven? Does that mean they should fall 17:38.566 --> 17:43.646 down on their knees and begin to pray, what they should do? 17:43.650 --> 17:48.940 Unlikely. By an appeal to Heaven, 17:48.943 --> 17:56.063 Locke means the people's right to dissolve their government. 17:56.059 --> 17:59.859 He raises this question at the very end of the book. 17:59.859 --> 18:04.229 When a conflict between the people or their representatives 18:04.232 --> 18:08.602 and the executive becomes so great that the very conditions 18:08.604 --> 18:11.624 of social trust have been dissolved, 18:11.620 --> 18:13.310 who will be judge? 18:13.309 --> 18:17.609 And he answers emphatically: the people will be judge. 18:17.609 --> 18:22.099 Locke affirms here a right of revolution. 18:22.099 --> 18:26.329 An appeal to Heaven, or what he calls an appeal to 18:26.330 --> 18:30.130 Heaven really refers to an appeal to arms, 18:30.130 --> 18:35.190 to rebellion, and the need to create a new 18:35.188 --> 18:38.938 social covenant. Locke, you can see, 18:38.935 --> 18:43.825 is attempting to hold together a belief in the sanctity of law 18:43.833 --> 18:47.933 and the necessity for prerogative that may sometimes 18:47.928 --> 18:51.218 have to circumvent the rules of law. 18:51.220 --> 18:54.740 Are these two doctrines incompatible? 18:54.740 --> 18:59.440 I think in many respects or at least in some respects they are. 18:59.440 --> 19:03.000 Can the prerogative power of the executive be in a way 19:03.004 --> 19:07.114 constitutionalized so that it does not threaten the liberty of 19:07.107 --> 19:08.517 its own citizens? 19:08.519 --> 19:14.159 Locke alerts us to this timeless as well as this very 19:14.164 --> 19:18.504 timely problem. One of the best sources for 19:18.503 --> 19:23.863 thinking about many of these constitutional issues today, 19:23.859 --> 19:29.259 regarding privacy rights and other kinds of citizen rights, 19:29.255 --> 19:32.305 can be found in, I would say the last five 19:32.309 --> 19:35.069 chapters or so of Locke's Second Treatise. 19:35.070 --> 19:38.510 19:38.509 --> 19:41.839 I can't think of a better source. 19:41.839 --> 19:46.279 So in the end Locke's appeal to Heaven or Locke says the people 19:46.284 --> 19:50.524 have an appeal to Heaven, that is to say an appeal to 19:50.518 --> 19:55.708 arms, an appeal to revolution, suggests that at the end of the 19:55.709 --> 20:00.729 day Locke was a revolutionary but I would say also a sort of 20:00.731 --> 20:05.741 cautious and moderate one, if this is not a complete 20:05.742 --> 20:08.022 contradiction in terms. 20:08.019 --> 20:12.529 I won't go through chapter 19, the famous chapter on 20:12.528 --> 20:16.678 revolution in full, to talk about the conditions 20:16.683 --> 20:21.813 under which he believed the people can rightfully appeal to 20:21.810 --> 20:25.170 Heaven, as it were, but Locke's 20:25.171 --> 20:29.501 doctrine of consent and legislative supremacy, 20:29.498 --> 20:34.978 this should make him in many ways a hero to Democrats, 20:34.980 --> 20:36.590 to radical Democrats. 20:36.589 --> 20:39.899 His beliefs about limited government, the rights of 20:39.901 --> 20:43.941 property should make him a hero to in some ways constitutional 20:43.940 --> 20:46.590 conservatives and even libertarians. 20:46.589 --> 20:51.529 In the end, I think Locke was neither or both. 20:51.529 --> 20:54.509 Like all of the great thinkers in some ways, 20:54.512 --> 20:56.942 he defines--he defies, excuse me, 20:56.940 --> 21:01.980 simple classification but there is no doubt that Locke gave the 21:01.983 --> 21:07.193 modern constitutional state its definitive form of expression. 21:07.190 --> 21:10.270 And the problems of our state, the problems, 21:10.271 --> 21:14.501 the legal, the constitutional and political problems that we 21:14.498 --> 21:17.788 experience are very much problems rooted in the 21:17.794 --> 21:21.744 philosophy of John Locke and are unthinkable without the 21:21.735 --> 21:23.665 influence of Locke. 21:23.670 --> 21:27.680 So that takes me to a theme that I want to talk about for a 21:27.682 --> 21:30.312 little while, which is Locke's America, 21:30.310 --> 21:32.040 John Locke's America. 21:32.039 --> 21:34.349 No one who reads Locke, even superficially, 21:34.348 --> 21:37.428 and I would not accuse anyone here of being a superficial 21:37.425 --> 21:41.845 reader, after all, but no one can fail 21:41.847 --> 21:47.697 to be impressed by the harmony, in many ways, 21:47.700 --> 21:52.370 between Locke's writings and those of the American Republic 21:52.374 --> 21:54.474 that he helped to found. 21:54.470 --> 21:58.510 His conception of natural law, rights, government by consent, 21:58.512 --> 22:02.692 the right to revolution and all are all part of the cornerstone 22:02.688 --> 22:04.708 of our founding documents. 22:04.710 --> 22:08.430 To some degree, as I've just been suggesting, 22:08.427 --> 22:12.737 a judgment on America is very much a judgment on the 22:12.735 --> 22:16.025 philosophy of Locke and vice versa. 22:16.029 --> 22:18.979 In many ways, if anyone is, 22:18.978 --> 22:24.988 I think Locke has the title to be considered America's 22:24.988 --> 22:27.368 philosopher-king. 22:27.369 --> 22:32.599 So how should we think of Locke after more or less three 22:32.600 --> 22:36.310 centuries of consistent Lockean rule? 22:36.310 --> 22:39.060 How should we think of Locke? 22:39.059 --> 22:42.269 For many years and for many people, even today, 22:42.265 --> 22:45.185 the affinity, the affiliation between Locke 22:45.191 --> 22:49.861 and America has been regarded in a largely although not wholly, 22:49.860 --> 22:52.850 largely positive light. 22:52.849 --> 22:55.659 For many historians and political theorists, 22:55.661 --> 22:57.951 our stability, our system of limited 22:57.949 --> 23:02.619 government, our market economy has been the 23:02.623 --> 23:08.223 result of a sort of broad consensus over Lockean 23:08.222 --> 23:11.782 principles, over Lockean first principles. 23:11.779 --> 23:15.829 But for many other readers of American history, 23:15.832 --> 23:20.592 this relationship has been seen as more problematic. 23:20.589 --> 23:24.469 In the 1950s, a book written by a famous 23:24.469 --> 23:29.839 political theorist and historian, named Louis Hartz, 23:29.839 --> 23:33.189 a book called The Liberal Tradition in America, 23:33.194 --> 23:36.664 complained of America's, what he called "irrational 23:36.660 --> 23:39.320 Lockeanism." That was Hartz's line, 23:39.318 --> 23:43.288 that was Hartz's quote, "irrational Lockeanism," by 23:43.293 --> 23:48.303 which he meant a kind of closed commitment to Lockean principles 23:48.301 --> 23:53.071 and ideals that shut off all other political alternatives and 23:53.070 --> 23:56.570 possibilities. Hartz was someone very much 23:56.567 --> 24:00.217 interested in the question, as many political theorists 24:00.223 --> 24:03.733 have been since, why has there been no socialism 24:03.729 --> 24:08.239 in America, why did America not evolve or develop along European 24:08.239 --> 24:12.319 lines with social democratic parties and socialist parties 24:12.320 --> 24:17.260 like the English Labor Party and other kinds of labor movements. 24:17.259 --> 24:21.539 And Hartz's argument was that we were sort of arrested in this 24:21.543 --> 24:26.483 Lockean phase of development, what he called our irrational 24:26.480 --> 24:32.000 Lockeanism that closed off in many ways other principles. 24:32.000 --> 24:36.750 And for still other thinkers, more or less on the left, 24:36.751 --> 24:41.421 Locke legitimized what was called an ethic of what was 24:41.415 --> 24:44.755 called "possessive individualism," 24:44.759 --> 24:49.529 particularly Locke's focus on property and the rights of 24:49.526 --> 24:54.726 private property that focuses entirely on market relations or 24:54.726 --> 24:59.316 puts the market values ahead of all other things. 24:59.319 --> 25:03.159 And for still others, in many ways more recently, 25:03.155 --> 25:08.025 thinkers of a more sort of communitarian direction or bent, 25:08.029 --> 25:10.969 Locke's emphasis upon rights and the protection, 25:10.969 --> 25:14.719 that government should protect natural or certain unalienable 25:14.722 --> 25:17.682 rights, suggests a purely or overly 25:17.676 --> 25:22.116 legalistic conception of politics that has no language 25:22.124 --> 25:25.234 for talking about the common good, 25:25.230 --> 25:29.580 the public good or other sort of collective goods or benefit. 25:29.579 --> 25:34.049 So my point is that Locke's influence has not been 25:34.054 --> 25:37.164 altogether accepted by everyone. 25:37.160 --> 25:42.210 There has been much ground for criticism of this peculiar 25:42.211 --> 25:46.001 affinity between Lockeanism and America. 25:46.000 --> 25:49.740 But today, I would say that Locke's theory of liberalism or 25:49.737 --> 25:52.247 Locke's theory of limited government, 25:52.250 --> 25:55.440 constitutional government, is confronted by another 25:55.436 --> 25:57.536 alternative that, in many ways, 25:57.539 --> 26:00.869 has deep roots in the very tradition which Locke 26:00.867 --> 26:04.897 himself---the very liberal tradition in many ways of which 26:04.903 --> 26:07.243 Locke himself is the founder. 26:07.240 --> 26:09.420 And I am referring, in particular, 26:09.423 --> 26:13.533 to a book that many of you will read at some point in your Yale 26:13.527 --> 26:16.907 experience, a book, widely read and widely 26:16.913 --> 26:21.543 acclaimed book by a recently deceased political philosopher 26:21.539 --> 26:26.409 by the name of John Rawls who wrote a book in 1973 called A 26:26.406 --> 26:28.556 Theory of Justice. 26:28.559 --> 26:33.019 In many ways, Rawls' book was an attempt to 26:33.018 --> 26:37.368 update the liberal theory of the state. 26:37.369 --> 26:41.059 He invokes the idea of a state of nature, an original 26:41.061 --> 26:45.181 condition, as he calls it, a theory of rights although he 26:45.180 --> 26:49.300 does so in many ways through the techniques of contemporary 26:49.299 --> 26:53.349 philosophy and game theory and Rawls' book is probably the 26:53.346 --> 26:56.966 single most important contribution to Anglo-American 26:56.968 --> 27:00.588 political philosophy in the last generation. 27:00.589 --> 27:03.699 It is a book that situates itself within the liberal 27:03.698 --> 27:07.308 tradition beginning with Locke, developed by people like 27:07.314 --> 27:11.064 Immanuel Kant and John Stuart Mill in which Rawls himself 27:11.057 --> 27:12.937 hoped to, in many ways, 27:12.939 --> 27:15.679 bring to completion in his book. 27:15.680 --> 27:18.030 A theory of justice, as he calls it, 27:18.029 --> 27:22.119 stands or falls on its theory of rights from which all else is 27:22.124 --> 27:25.804 derived. And what I want to do for a few 27:25.804 --> 27:30.074 minutes is to contrast Rawls' general theory, 27:30.069 --> 27:33.669 so powerful and influential today, from that of John 27:33.674 --> 27:38.414 Locke's, the original founder of the liberal theory of the state, 27:38.410 --> 27:42.320 and see how they have diverged. 27:42.319 --> 27:44.609 Consider the following propositions, 27:44.612 --> 27:46.762 if you will. Here is John Locke, 27:46.763 --> 27:49.493 section 27 of the Second Treatise. 27:49.490 --> 27:52.960 "Every man has property in his own person. 27:52.960 --> 27:57.690 This nobody has any right to but himself and where there is 27:57.692 --> 28:01.452 property," he writes, "there can be justice and 28:01.446 --> 28:03.906 injustice." Here is John Rawls, 28:03.913 --> 28:07.713 one of the opening pages of his Theory of Justice. 28:07.710 --> 28:11.840 "Each person," Rawls writes, "possesses an inviolability 28:11.835 --> 28:16.405 founded on justice that even the welfare of society as a whole 28:16.410 --> 28:20.330 cannot override. For this reason," he continues, 28:20.328 --> 28:24.698 "justice denies that the loss of freedom for some is made 28:24.698 --> 28:28.208 right by a greater good shared to others." 28:28.210 --> 28:31.310 Okay. So far, so good, in other words. 28:31.309 --> 28:36.089 Both of them present their theories of justice as justified 28:36.085 --> 28:40.115 in terms of the liberal principles of equality, 28:40.119 --> 28:45.189 freedom and the sanctity of the individual and individual 28:45.194 --> 28:47.904 rights. Both regard the purpose of 28:47.897 --> 28:51.817 government, in many ways, as securing the conditions of 28:51.816 --> 28:54.716 justice as deriving from the consent, 28:54.720 --> 28:58.770 or the informed consent, of the governed but both it 28:58.766 --> 29:03.286 seems to me go on to differ profoundly about the source of 29:03.289 --> 29:08.049 rights and therefore the role that government has in securing 29:08.050 --> 29:10.590 the conditions of justice. 29:10.589 --> 29:12.969 Let me explain a little bit more what I mean. 29:12.970 --> 29:16.800 29:16.799 --> 29:21.099 For Locke, going back to chapter 5 of the Second 29:21.100 --> 29:24.890 Treatise, rights derived from a theory of 29:24.885 --> 29:28.205 self-ownership. According to his view, 29:28.208 --> 29:31.968 you will remember, everybody has a property in his 29:31.968 --> 29:33.578 or her own person. 29:33.579 --> 29:37.499 That is to say, no one has a claim on our 29:37.500 --> 29:40.440 bodies other than ourselves. 29:40.440 --> 29:43.270 It is on the rock of self-ownership, 29:43.274 --> 29:47.004 the fact that we have property in ourselves, 29:47.000 --> 29:50.230 it is on the rock of self-ownership that Locke builds 29:50.231 --> 29:54.831 his edifice of natural rights, justice, and limited government. 29:54.829 --> 29:58.769 To put it in a slightly different way perhaps, 29:58.772 --> 30:03.242 a person has an identity, what we might call today a 30:03.239 --> 30:08.579 moral personality or an identity by the fact that we alone are 30:08.583 --> 30:12.003 responsible for making ourselves. 30:12.000 --> 30:15.330 He uses this metaphor of the work of the body and the labor 30:15.331 --> 30:18.321 of our hands but we are literally the products of our 30:18.318 --> 30:22.048 own making. We create ourselves through our 30:22.045 --> 30:26.755 activity and our most characteristic activity is our 30:26.760 --> 30:30.280 work. Locke's fundamental doctrine is 30:30.279 --> 30:35.479 that the world is the product of our own free creativity, 30:35.480 --> 30:40.590 not nature but the self, the individual is the source of 30:40.594 --> 30:42.644 all value for Locke. 30:42.640 --> 30:45.210 It is this self, the I, the me, 30:45.207 --> 30:50.167 the ego that is the unique source of rights and the task of 30:50.171 --> 30:54.961 government is to secure the conditions of our property in 30:54.963 --> 31:01.363 the broadest sense of the term, namely, everything that is 31:01.360 --> 31:07.580 proper to us. Now, using that as a sort of 31:07.579 --> 31:14.139 shorthand, contrast this to Rawls' idea. 31:14.140 --> 31:19.610 Rawls adds to his idea of justice something that he calls 31:19.605 --> 31:25.745 the "difference principle," the DP as it's sometimes referred to 31:25.754 --> 31:28.784 in the literature on Rawls. 31:28.779 --> 31:31.309 What is the difference principle? 31:31.309 --> 31:36.429 This principle maintains that our natural endowments, 31:36.426 --> 31:39.276 our talents, our abilities, 31:39.279 --> 31:41.799 our family backgrounds, our history, 31:41.802 --> 31:45.192 our unique histories, our place, so to speak, 31:45.190 --> 31:49.210 in the social hierarchy, all of these things are from a 31:49.207 --> 31:53.147 moral point of view something completely arbitrary. 31:53.150 --> 31:57.960 None of these are ours in any strong sense of the term. 31:57.960 --> 32:03.040 They do not belong to us but are the result of a more or less 32:03.043 --> 32:07.453 kind of random or arbitrary genetic lottery or social 32:07.448 --> 32:13.208 lottery of which I or you happen to be the unique beneficiaries. 32:13.210 --> 32:16.340 The result of this, in other words, 32:16.336 --> 32:21.576 is that no longer can I be regarded as the sole proprietor 32:21.577 --> 32:26.727 of my assets or the unique recipient of the advantages or 32:26.726 --> 32:30.676 disadvantages I may accrue from them. 32:30.680 --> 32:34.310 Fortune, luck, Machiavellian fortuna, 32:34.314 --> 32:38.544 in that way, is utterly arbitrary and therefore, 32:38.539 --> 32:42.369 Rawls concludes, I should not be regarded as the 32:42.370 --> 32:46.690 possessor but merely the recipient of what talents, 32:46.690 --> 32:52.330 capacities and abilities that I may, again, purely arbitrarily 32:52.330 --> 32:54.180 happen to possess. 32:54.180 --> 33:00.910 So what does that mean in terms of social policy or theory of 33:00.911 --> 33:04.951 government? The result of Rawls' difference 33:04.946 --> 33:09.676 principle and its fundamental difference with that of John 33:09.683 --> 33:14.673 Locke could not be more striking from this point of view. 33:14.670 --> 33:18.740 The Lockean theory of justice, broadly speaking, 33:18.735 --> 33:22.705 supports a meritocracy sometimes referred to as 33:22.714 --> 33:27.534 "equality of opportunity," that is, what a person does 33:27.525 --> 33:32.445 with his or her natural assets belongs exclusively to them, 33:32.450 --> 33:37.010 the right to rise or fall belongs exclusively to them. 33:37.009 --> 33:41.709 No one has the moral right to interfere with the products of 33:41.705 --> 33:45.915 our labor, the products of--which may also include not 33:45.923 --> 33:50.783 just in a primitive sense what we do with our hands and bodies 33:50.778 --> 33:54.838 but what we do with our intelligence and our natural 33:54.837 --> 33:58.157 endowments. For Rawls, again, 33:58.158 --> 34:03.368 on the other hand, our endowments are never really 34:03.370 --> 34:06.030 our own to begin with. 34:06.029 --> 34:11.259 They are part of a common or collective possession to be 34:11.255 --> 34:17.555 shared by society as a whole, the capacities of hard work, 34:17.556 --> 34:23.306 ambition, intelligence and just good luck that, 34:23.309 --> 34:26.489 for example, got you to a place like Yale, 34:26.485 --> 34:30.195 on Rawls' account, do not really belong to you or 34:30.202 --> 34:34.692 at least the fruits of those ambitions and intelligence and 34:34.694 --> 34:37.564 good luck do not belong to you. 34:37.559 --> 34:41.429 Again they are somewhat arbitrary as a result of 34:41.429 --> 34:43.569 upbringing and genetics. 34:43.570 --> 34:47.700 They're not yours or mine, in any strong sense of the 34:47.697 --> 34:51.267 term, but rather, a collective possession that 34:51.269 --> 34:56.109 can be or should be the fruits of which distributed to society 34:56.110 --> 34:59.690 as a whole. Consider the following passage 34:59.688 --> 35:03.408 from Rawls. "The difference principle," he 35:03.414 --> 35:08.614 writes, "represents in effect an agreement to regard the 35:08.609 --> 35:14.369 distribution of natural talents as a common asset and to share 35:14.372 --> 35:19.382 in the benefits of this distribution whatever it turns 35:19.379 --> 35:25.099 out to be." Your intelligence or your drive 35:25.097 --> 35:30.927 or your endowments are, again, what he calls a 35:30.928 --> 35:33.518 collective asset. 35:33.520 --> 35:36.220 Think about that. 35:36.219 --> 35:40.859 And it is this conception of common assets that underwrites 35:40.864 --> 35:45.834 Rawls' theory of distributive justice and the welfare state, 35:45.829 --> 35:50.639 just as Locke's theory of self-ownership justifies his 35:50.636 --> 35:56.346 conception of limited government in the constitutional state. 35:56.349 --> 36:00.349 According to Rawls, again, justice requires that 36:00.353 --> 36:04.783 social arrangements be structured for the benefits of 36:04.783 --> 36:09.813 the least advantaged in the genetic lottery of society. 36:09.809 --> 36:14.939 His thought experiment that he calls "the original condition" 36:14.939 --> 36:20.069 specifies that nobody would know in advance in this condition 36:20.069 --> 36:24.429 what their particular endowment intellectually, 36:24.430 --> 36:26.770 in many other ways, would be. 36:26.769 --> 36:32.289 Therefore, every individual would, in contracting with the 36:32.285 --> 36:37.985 whole, would agree to share equally in the benefits of this, 36:37.993 --> 36:41.093 as it were, genetic lottery. 36:41.090 --> 36:45.030 So redistributing our common assets does not violate, 36:45.032 --> 36:48.672 on Rawls' account, the sanctity of the individual 36:48.671 --> 36:53.371 because again the fruits of our labor were never really ours to 36:53.371 --> 36:55.681 begin with. Unlike Locke, 36:55.683 --> 37:00.413 whose theory of self-ownership provides a moral justification 37:00.407 --> 37:03.067 for the individual, for the self, 37:03.065 --> 37:06.835 for our moral personality, Rawls' difference principle 37:06.838 --> 37:11.108 maintains that we never again belong to ourselves at all. 37:11.110 --> 37:16.480 We never really have ownership in ourselves but are always part 37:16.478 --> 37:20.558 of a larger social "we," a social collective, 37:20.555 --> 37:25.295 a collective consciousness whose common assets can be 37:25.301 --> 37:29.501 redistributed for the benefit of the whole. 37:29.500 --> 37:33.180 Locke and Rawls, the point I'm trying to make 37:33.180 --> 37:38.530 is, they represent two radically different visions of the liberal 37:38.533 --> 37:41.913 state, one broadly libertarian, 37:41.908 --> 37:47.618 the other broadly welfarist, one emphasizing liberty, 37:47.620 --> 37:52.200 the other emphasizing equality. 37:52.199 --> 37:55.139 Interestingly, again, this transition, 37:55.144 --> 37:59.764 this evolution represents a change which has gone on within 37:59.759 --> 38:03.419 in many ways the liberal tradition itself. 38:03.420 --> 38:07.220 Unlike some of these other critics, Rawls does not come to 38:07.218 --> 38:11.148 be claiming from a tradition outside of liberalism but to be 38:11.150 --> 38:14.550 developing certain arguments from within the liberal 38:14.549 --> 38:18.749 tradition and yet has moved in a way clearly very different from 38:18.747 --> 38:20.877 its Lockean formulation. 38:20.880 --> 38:23.970 Both of these views, again, they begin from common 38:23.974 --> 38:27.074 premises but move in very different directions. 38:27.070 --> 38:31.100 Locke's theory of self-ownership regards the 38:31.095 --> 38:36.895 political community in largely negative terms as protecting our 38:36.900 --> 38:42.050 antecedent individual selves and individual rights. 38:42.050 --> 38:46.160 Rawls' theory of common assets regards the community in a far 38:46.156 --> 38:50.256 more positive sense as taking an active role in reshaping and 38:50.262 --> 38:54.512 redistributing the products of our individual endeavors for the 38:54.505 --> 38:56.075 common interests. 38:56.079 --> 39:00.839 The question for you, just like the question for any 39:00.841 --> 39:06.351 of us, is which of these two views is more valid or which of 39:06.348 --> 39:11.388 the two strikes you as more powerful or plausible? 39:11.389 --> 39:15.449 My own view, and I loathe to editorialize, 39:15.445 --> 39:20.185 but my own view is far closer to American theory, 39:20.193 --> 39:25.143 to Locke's theory, which I think--than Rawls'. 39:25.139 --> 39:27.559 The Declaration of Independence, 39:27.560 --> 39:30.620 the charter of American liberty, states that each 39:30.617 --> 39:34.177 individual is endowed with unalienable rights among which 39:34.184 --> 39:36.764 are life, liberty, the pursuit of 39:36.763 --> 39:39.483 happiness. The very indeterminacy of the 39:39.480 --> 39:43.160 last phrase, the pursuit of happiness, with its emphasis 39:43.161 --> 39:46.711 upon the individual's right to determine happiness for 39:46.709 --> 39:49.889 themselves, suggests a form of government 39:49.885 --> 39:54.095 that allows for ample diversity for our natural talents and 39:54.095 --> 39:58.005 abilities and although the Declaration certainly 39:58.014 --> 40:02.374 intends that the establishment of justice is one of the first 40:02.370 --> 40:07.640 tasks of government, nowhere does it imply that this 40:07.636 --> 40:13.396 requires the wholesale redistribution of our individual 40:13.396 --> 40:15.526 goods and assets. 40:15.530 --> 40:19.280 And second, although Rawls is clearly attractive, 40:19.282 --> 40:23.742 excuse me, Rawls is clearly attentive to the moral ills of 40:23.737 --> 40:28.267 inequality and we will turn to that problem emphatically on 40:28.271 --> 40:32.731 Wednesday when we look at Jean-Jacques Rousseau's Essay 40:32.727 --> 40:34.757 on Inequality. 40:34.760 --> 40:38.040 There has never been a more powerful, passionate and 40:38.039 --> 40:41.899 persuasive critic of the ills of inequality than Jean-Jacques 40:41.898 --> 40:45.688 Rousseau but while Rawls is certainly attentive to the moral 40:45.692 --> 40:49.422 ills of inequality, he seems very naive about the 40:49.423 --> 40:53.233 mechanisms, the actual political mechanisms, by which 40:53.230 --> 40:55.720 inequalities will be rectified. 40:55.719 --> 40:59.919 Rawls wants government to work for the benefit of the least 40:59.923 --> 41:03.913 advantaged but this will require the extensive and often 41:03.909 --> 41:08.399 arbitrary use of judicial power to determine who has a right to 41:08.402 --> 41:12.252 what, far in excess of the powers of 41:12.251 --> 41:15.011 the court. The result would be, 41:15.005 --> 41:19.335 I think if we follow Rawls' teachings to their letter, 41:19.340 --> 41:23.920 the result would be not a class of philosopher-kings, 41:23.920 --> 41:28.280 but rather a class of chief justices endowed with the power 41:28.276 --> 41:32.626 to rearrange and redistribute our collective assets for the 41:32.633 --> 41:37.143 sake of achieving the maximum degree of social equality. 41:37.139 --> 41:41.539 It is no surprise that the warmest reception that Rawls' 41:41.539 --> 41:45.219 writing gets today is in the schools of law, 41:45.219 --> 41:49.799 is in the law schools where he has had an enormous influence on 41:49.801 --> 41:54.161 shaping the education of the current and the next generation 41:54.161 --> 41:58.191 of lawyers, judges and possibly chief 41:58.191 --> 42:04.621 justices who may be looking to again, looking not to the 42:04.619 --> 42:11.049 Constitution but to Rawls' theory of justice as a 42:11.047 --> 42:18.407 litmus or a tool for bringing about social redistribution. 42:18.409 --> 42:22.329 So, I leave you on that sobering note but a return to 42:22.331 --> 42:25.801 Locke such as it is, even if such a return were 42:25.799 --> 42:29.159 possible, is by no means a panacea to 42:29.157 --> 42:31.957 what ails us. I am not suggesting for a 42:31.955 --> 42:34.705 moment that Locke is some kind of cure all. 42:34.710 --> 42:37.670 Some historians, let me just mention again, 42:37.672 --> 42:41.482 Louis Hartz was but the most famous, treat America as a 42:41.482 --> 42:45.082 nation uniquely built upon Lockean foundations. 42:45.079 --> 42:49.109 America, he believed, remained something of a Lockean 42:49.114 --> 42:51.214 remnant--a Lockean, yeah, 42:51.210 --> 42:55.480 remnant, fossil in some ways, in a world increasingly 42:55.481 --> 42:59.261 governed by more radical forms of modernity. 42:59.260 --> 43:03.990 In fact, it has been our sort of stubborn Lockeanism that has, 43:03.987 --> 43:07.467 in many ways, prevented the kinds of extreme 43:07.471 --> 43:11.341 ideological polarization and conflict that one sees 43:11.340 --> 43:14.900 throughout much of the nineteenth and twentieth 43:14.899 --> 43:18.379 centuries. But Locke's effort to build a 43:18.383 --> 43:22.873 kind of modern republican government on the low but solid 43:22.870 --> 43:27.760 foundations of self-interest and self-ownership and the desire 43:27.758 --> 43:32.488 for comfortable preservation could not help but generate its 43:32.485 --> 43:35.365 own forms of dissatisfaction. 43:35.369 --> 43:38.959 Can a regime, dedicated to the pursuit of 43:38.955 --> 43:44.145 happiness or to the protection of property ever satisfy the 43:44.154 --> 43:47.654 deepest longings of the human soul? 43:47.650 --> 43:49.890 Can a regime, devoted to the rational 43:49.888 --> 43:53.498 accumulation of property answer those higher order needs or 43:53.495 --> 43:57.375 higher order virtues, like honor, nobility and 43:57.381 --> 43:59.511 sacrifice? Can a regime, 43:59.510 --> 44:04.080 devoted to the avoidance of pain, discomfort and anxiety, 44:04.077 --> 44:07.907 produce anything more than contemporary forms of 44:07.911 --> 44:10.441 Epicureanism and Nihilism? 44:10.440 --> 44:13.900 In any case, I'm suggesting no more than any 44:13.898 --> 44:18.238 other land could America insulate itself from the great 44:18.241 --> 44:22.421 heights as well as the great depths of later forms of 44:22.423 --> 44:26.083 modernity. America, as a former teacher of 44:26.075 --> 44:29.195 mine once said, is the land where the many 44:29.203 --> 44:33.553 facets, the many faces of modernity are working themselves 44:33.553 --> 44:37.603 out. We are but a moment in the kind 44:37.603 --> 44:42.383 of comprehensive self-dissatisfaction that is 44:42.376 --> 44:47.146 modernity so that a return to Lockeanism, 44:47.150 --> 44:50.640 in many ways, is not so much a cure for the 44:50.637 --> 44:52.877 pathologies of modernity. 44:52.880 --> 44:57.400 I would suggest that those pathologies are themselves 44:57.404 --> 45:01.324 already rooted in the pathologies of Locke. 45:01.320 --> 45:05.600 I will end on that sober note and encourage you to take 45:05.604 --> 45:10.054 Rousseau's advice about loving one's country seriously on 45:10.047 --> 45:10.997 Tuesday.