Thursday, October 30, 2014

How Modern Government Is Destroying the Presumption of Liberty Our Founders Cherished

How Modern Government Is Destroying the Presumption of Liberty Our Founders Cherished:

In the years following the adoption of the Constitution, before
he was Secretary of State under President Thomas Jefferson and then
president himself, James Madison, who wrote the Constitution, was a
member of the House of Representatives. During that period of his
life, he gave illuminating speeches and wrote elegant essays and
letters about human freedom.

In one of his essays, Madison noted that freedom came about in
Europe when the people rose up and cast off or intimidated tyrants,
who reluctantly granted the people the freedoms they sought. That
was, in Madison's words, "power granting liberty." The American
experience was the opposite, he argued. After we seceded from Great
Britain, the free people of the 13 independent states voluntarily
came together and through the states delegated discrete amounts of
power to a central government. That was, in Madison's words,
"liberty granting power," especially since the people reserved to
themselves the liberties they did not delegate away.

Much of the political class of the founding generation, unlike
our own, viewed the Constitution as restraining, not unleashing,
the government. They recognized along with Madison and Jefferson
that natural rights—areas of human behavior for which we do not
need a government permission slip—are truly inalienable. An
inalienable right, like speech, worship, travel, self-defense, and
privacy for example, is one that cannot be taken away by majority
vote or by legislation or by executive command. It can only be
taken away after the behavior of the person whose restraint the
government seeks has been found by a jury to have violated
another's natural rights.

This process and these guarantees are known today as the
presumption of liberty. Stated differently, because of our
recognition of natural rights, and our history, values, and written
constitutional guarantees, we in America are self-directed and free
to make our own choices. In fact, the constitutional guarantee of
due process mandates that because our individual liberty is natural
to us, it is always presumed; thus, it is always the government's
obligation to demonstrate our unworthiness of freedom to a judge
and jury before it can curtail that freedom. It is not the other
way around.

Until now.

This past week has seen disturbing events in which the
government, as if in "Alice in Wonderland" mode, has punished first
and insisted its victims prove they are unworthy of that
punishment. The IRS, for example, revealed that it has been seizing
the contents of bank accounts of folks whose taxes have been fully
paid. It has done so pursuant to a federal statute that permits
confiscation if the government detects a series of bank deposits
that appear to be structured so that a significant number of them
are below $10,000. That number triggers a bank obligation of
reporting the deposit to the feds.

The original anti-structuring statute required the feds to prove
that the structuring was done willfully so as to avoid reporting
requirements, rather than innocently or for some other not unlawful
purpose, as is often the case. After the Supreme Court reversed the
first structuring conviction that made its way there because the
feds had failed to prove it was "willful," Congress responded by
removing the word "willful"—and hence the burden of proving
willfulness—from the statute and authorizing the confiscations.
This violation of the presumption of liberty happened to more than
600 Americans last year, and fewer than 120 of them were actually
charged with a crime.

Also last week, a nurse who returned to the U.S. from western
Africa, where she had been caring for Ebola patients, was arrested
at Newark Airport on orders from the governor of New Jersey and
held in a tent in a parking lot in downtown Newark until she could
prove she was not symptomatic with Ebola. This, too, violated the
presumption of liberty. It is not she who must prove that she is
not contagious in order for her to be set free; it is the
government that must prove that she is symptomatic in order to
restrain her. When she quite properly threatened to sue those who
arrested her, they acknowledged that they had no evidence of her
contagion and released her.

What's going on here?

What's going on is the systematic governmental destruction of
the presumption of liberty in the name of public safety.
Politicians who want to appear bold and strong often ride a popular
wave and ignore the rights of their targets. And those responsible
for public safety—all of whom have taken an oath to uphold the
Constitution—have forgotten that chief among their duties is the
safekeeping of our freedoms.

Would it be easier for the government to keep us safe from money
laundering and Ebola if it could disregard the Constitution and
trample personal freedoms? Yes, it would. But who would want to
live in such a society? If the government can reverse the
presumption of liberty over appearances, what is the value of
constitutional guarantees? Whose freedom in America is safe
today?

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