Friday, March 23, 2007

Presumption of Liberty

One thing on which law students and lawyers spend a lot of time is understanding where lies the "burden of proof" in any particular case. That is, which party is responsible for presenting evidence to overcome the "presumption" favoring the other side?

When it comes to questions involving individual rights juxtaposed against government power, the Declaration of Independence and Constitution created a presumption in favor of individual liberty. That is, any time an act of government limited individual liberty, the government action was presumed to be invalid unless the government met its burden of proof to show that its action was proper or otherwise necessary.

Unfortunately, this "presumption of liberty" has been lost over time, to be replaced by a "presumption of constitutionality" whereby government actions limiting individual liberty are presumed to be valid and will almost always be upheld, unless the individual meets the burden of proof to demonstrate that the law is in some way unreasonable, arbitrary or otherwise defective. This is a very difficult burden for individuals to meet, in part because supporters of the government action argue that it is the right of the democratically-elected majority to pass laws for the health, safety and welfare of the people, even if those laws happen to infringe upon individual liberties. As law professor Randy E. Barnett describes the situation in a book called "Restoring the Lost Constitution: The Presumption of Liberty": "The Constitution that was actually enacted and formally amended creates islands of government powers in a sea of liberty. The judicially redacted Constitution creates islands of liberty rights in a sea of government powers.”

Well put. While we may commend certain aspects of Democracy, we may also lament the Liberty that all-too-often suffers at its hands.