ABSTRACT
It is scarcely an exaggeration to say that Machiavelli’s re-working of the crowd material in Livy opened the way for the most celebrated theory of liberty under government in the works of Montesquieu, and it has never been seriously doubted that Montesquieu was one of the most important intellectual influences on the writing of the Constitution of the United States, though the precise nature of that influence has often been disputed. There has been a tendency to see Montesquieu as the theorist of a very orderly liberty, a liberty under law, where law means that any man may do what the law does not specifically forbid, and where law also shades into law-and-order: a man will be protected by lawenforcing agencies while he does what the law allows him to do. In this view of the matter, Montesquieu is seen as emphasizing above all the security which the law provides for actions not contrary to law; under law, men know where they are, and so can plot the course of their future conduct to avoid known legal obstacles and arrive safely at their own self-chosen destinations. This view of Montesquieu fits well with the ‘government of laws, not men’ which the Constitution of the United States was designed to provide. The Constitution’s declaration that it was the fundamental law of the land so that any ordinary law which contradicted it was not law at all, and the doctrines of separation of powers and checks and balances which put strict procedural constraints on the business of law-making, make up a recipe for a polity which was going to be law-bound in all its essentials.
