July 28, 2004


Book XI: Of the Laws Which Establish Political Liberty, with Regard to the Constitution (THE SPIRIT OF LAWS, Charles de Secondat, Baron de Montesquieu)

1. A general Idea. I make a distinction between the laws that establish political liberty, as it relates to the constitution, and those by which it is established, as it relates to the citizen. The former shall be the subject of this book; the latter I shall examine in the next.

2. Different Significations of the word Liberty. There is no word that admits of more various significations, and has made more varied impressions on the human mind, than that of liberty. Some have taken it as a means of deposing a person on whom they had conferred a tyrannical authority; others for the power of choosing a superior whom they are obliged to obey; others for the right of bearing arms, and of being thereby enabled to use violence; others, in fine, for the privilege of being governed by a native of their own country, or by their own laws.1 A certain nation for a long time thought liberty consisted in the privilege of wearing a long beard.2 Some have annexed this name to one form of government exclusive of others: those who had a republican taste applied it to this species of polity; those who liked a monarchical state gave it to monarchy.3 Thus they have all applied the name of liberty to the government most suitable to their own customs and inclinations: and as in republics the people have not so constant and so present a view of the causes of their misery, and as the magistrates seem to act only in conformity to the laws, hence liberty is generally said to reside in republics, and to be banished from monarchies. In fine, as in democracies the people seem to act almost as they please, this sort of government has been deemed the most free, and the power of the people has been confounded with their liberty.

3. In what Liberty consists. It is true that in democracies the people seem to act as they please; but political liberty does not consist in an unlimited freedom. In governments, that is, in societies directed by laws, liberty can consist only in the power of doing what we ought to will, and in not being constrained to do what we ought not to will.

We must have continually present to our minds the difference between independence and liberty. Liberty is a right of doing whatever the laws permit, and if a citizen could do what they forbid he would be no longer possessed of liberty, because all his fellow-citizens would have the same power.

Apropos the conversation of yesterday: liberty lies not in burning a flag but in having the law against it apply universally after being adopted legitimately.

Posted by Orrin Judd at July 28, 2004 9:48 AM

All well and good, except that the chosen excerpt says nothing of the sort.

Baron de Montesquieu says only that liberty and anarchy are not synonymous, not that all laws are just.

The question is not whether laws against flag burning can be legitimately passed, but instead, whether it's legitimate to pass laws against flag burning.

Posted by: Michael Herdegen at July 28, 2004 11:20 AM

Or whether there is a point.

If the negative impact of passing a flag-burning law--more flag burning by far--exceeds the cost of leaving well enough alone (is there one?), why bother

Posted by: Jeff Guinn at July 28, 2004 12:05 PM

"Liberty is a right of doing whatever the laws permit"

Posted by: oj at July 28, 2004 1:37 PM


Law isn't utilitarian.

Posted by: oj at July 28, 2004 1:49 PM

Which doesn't at all mean that liberty will expand if we outlaw flag-burning.

Posted by: Michael Herdegen at July 28, 2004 1:55 PM

Liberty contracted when five unelected judges overthrew a legal scheme of long and uncontroversial duration. A society where that happens is precisely as arbitrary as the republicans warn against.

Posted by: oj at July 28, 2004 2:04 PM

'The law in its majesty forbids the millionaire as well as the bum from sleeping under bridges.'

Anatole France

Posted by: Harry Eagar at July 28, 2004 2:35 PM

Precisely. Liberty doesn't require the millionaire to give the bum his house, but it does require they be equally punishable for like infractions.

Posted by: oj at July 28, 2004 2:52 PM

I took the oath of office many times while in the military. It included the phrase "...defend and protect the Constitution of the United States ..."

I'm surprised that a religionist would get so wrought over a material objects.

One other thing to keep in mind: unless the flag burner is liable for other charges--vandalism, say--then the flag he burns is his own personal property.

Liberty does not lie in the government deciding how you may dispose of one particular piece of personal property. Because if you can justify a law against someone burning their own flag burning, you can justify one against Bible burning.

Many laws are utilitarian, and any law that suffers from as many flaws as this one should be burned.

Posted by: Jeff Guinn at July 29, 2004 7:46 AM


It should be illegal to burn the Bible, just like a flag or the cross. Symbols matter.

Posted by: oj at July 29, 2004 7:52 AM

Symbols matter, but that doesn't mean it should be illegal. After all, the Piss Christ was utterly offensive, even to dunnoist such as I. Going to ban that too? Do you advocate some sort of standing commission to evaluate everything for banning? The problem with your approach is that it is negative regulation, which means you will perepetually be faced with banning decisions.

Hard to reconcile that with liberty.

Consistent with other, utilitarian laws (like against open fires, or littering, for instance), there should never be any kind of law regarding disposal of personal property.

Posted by: Jeff Guinn at July 29, 2004 2:40 PM

Oh, one other thing. If you had any faith in your God, you would let him deal with Bible burners. After all, it's His word, not yours.

Posted by: Jeff Guinn at July 29, 2004 2:41 PM


No, not all. We don't need committees precisely because we have universal and long-standing laws banning exactly those things we think go to far. Or we do until a small elite make our justice system arbitrary and subvert liberty.

Posted by: oj at July 29, 2004 2:45 PM

Their crime isn't against God but against their fellow citizens.

Posted by: oj at July 29, 2004 2:48 PM

When I was younger, I used to take the Legion of Decency pledge every year.

I swore that I would not watch any movies that pederasts had decided were too racy.

And that's the problem with censorship. Nobody's good enough to censor anybody else.

I wouldn't presume to censor you.

By the way, if symbols matter, they must be equivalent to speech. Otherwise, how would we know what they signify?

Posted by: Harry Eagar at July 29, 2004 3:02 PM

No, they're more important than speech, which is why it's legitimate to protect them. Though a speech advocating overthrow of the Republic is not protected either.

Posted by: oj at July 29, 2004 3:14 PM

If there was ever a case of the cure being far worse than the disease, this is it.

Never mind the pure oxygen of publicity, or the sure guarantee of a 1,000 fold increase flag burning, or that Censorship, the real name for this, is very addicting.

I would think the very last thing any lover of liberty would want is to put citizens in the habit of bargaining with government over what they may say, or how they are obliged to treat their private property.

Posted by: Jeff Guinn at July 29, 2004 9:40 PM

Well, symbolic speech is usually more obscure than spoken speech, unless we're talking about Al Gore.

I don't know that flag-burning is a call for overthrow of the Republic. Maybe just overthrow of the Republicans.

They're still distinct, at least in my mind.

Posted by: Harry Eagar at July 29, 2004 9:54 PM


What bargain? It was illegal.

Posted by: oj at July 30, 2004 12:41 AM


Threats are illegal, no?

Posted by: oj at July 30, 2004 12:43 AM


My verb, your noun. There is a difference.

Making something as notoriously hard to define as what is allowed speech puts citizens continually in the position of bargaining over what separates legal from illegal.

That is not conducive to liberty, while burning flags harms liberty not in the least.

Posted by: Jeff Guinn at July 30, 2004 7:09 AM

It's not very hard--48 states did it. It lasted for decades. Then five people changed it. That's a loss of liberty.

Posted by: oj at July 30, 2004 7:12 AM

At least in this state, threats to people are illegal.

Complaining about institutions is still, last I heard, OK.

Posted by: Harry Eagar at July 30, 2004 3:44 PM

Jim Crow laws lasted for decades too, and it took the courts to overturn them.

More or less liberty?

How long something lasted, or how it was changed, doesn't have anything to do with whether there was more liberty before or after.

Posted by: Jeff Guinn at July 31, 2004 7:59 AM

More. Liberty is not a function of the wisdom of the law. But by ceding power to the Court we've now allowed them to legalize the murder of 40 million fellow Americans. And so liberty was undermined.

Posted by: oj at July 31, 2004 8:06 AM

We have now allowed the decision on life and abortion to be made by the woman, her family, clergy, and doctor.

As opposed to the government forcing a decision upon everyone.

That is an increase in liberty and, according to a recent poll, a position favored by 73% of Republicans and about 90% of Democrats. In other words, a vast majority of Americans.

Of course you don't like that. Unfortunately, that is the price of liberty--people being able to make their own choices even when you don't like it.

Posted by: Jeff Guinn at August 1, 2004 9:20 AM

If you thought it was popular you'd allow legislatures to deal with it.

Posted by: oj at August 1, 2004 9:26 AM