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Applying the Presumption of Liberty to All Laws

Why wait for the Supreme Court to decide if laws are constitutional until after they are enacted?

by | May 4, 2021 | Articles, Law

The left is pushing for packing the Supreme Court, while there is a mounting movement on the right for a constitutional amendment for keeping the number of justices unchanged. However, this solution is a mere band-aid on a massive security hole in the U.S. government. Fortunately, there exists a way to stop court-packing once and for all.

The Presumption of Innocence

When the Founding Fathers created the Constitution, they endowed it with the principle of diffusing, dividing, and balancing the powers of the government to avoid tyranny and abuse. One such balance is the presumption of innocence.

When someone is put on trial, all the power is stacked against the accused. The government has the resources and power to put people in prison. Placing the burden of evidence on the prosecution and granting the accused the presumption of innocence cancel the power disparity. It is harder for the government to abuse its power if it must prove beyond a reasonable doubt and achieve a guilty verdict by a unanimous jury.

Presumption of Liberty

It is a great injustice to put a single innocent person in jail. Imagine how much greater the injustice is if a new law is passed that systemically violates the rights of all innocent people. Therefore, the presumption of innocence should be generalized to the legislative process. The Founding Fathers left a giant security hole and potential for abuse by not balancing the power of Congress with a sufficiently powerful veto by the Supreme Court.

Fortunately, it can easily be fixed: treat every new law as a trial against the American people where they are assumed to be free until proven otherwise. Let’s call it the presumption of liberty.

Congress would then need to prove beyond a reasonable doubt in the Supreme Court that the new law does not violate individuals’ “unalienable rights” as stipulated in the Declaration of Independence, Constitution, and the Bill of Rights. The Supreme Court would act as the jury, and their verdict would need to be unanimous, just like in a murder trial.

In practice, the consequence is that a single justice could stop a new law. Such a requirement would make the question of court-packing moot since every new justice would reduce the chance of a new law being approved.

Some may claim that the presumption of liberty is too strict, but why should it be easier to make a law than convict someone of a crime? Isn’t systemic injustice worse than a single instance?


[bookpromo align=”left”] Although this solution is easy to implement, it may be near impossible to get Congress to agree to pass any law or constitutional amendment that would limit their power so severely.

Nevertheless, by naming the beast, people grow more aware of the issue of government overreach. Think tanks such as Heritage Foundation could go through U.S. laws and evaluate what percentage of them would survive the presumption of liberty. It would give a new and disturbing objective measure of how unfree the United States has become under decades of creeping authoritarianism.

Although a constitutional amendment is unlikely in the foreseeable future, it is not entirely unthinkable that a liberty-oriented Congress could pass a law that would require lawmakers to prove the legitimacy of every new law beyond a reasonable doubt in the Supreme Court. It could even be called the Presumption of Liberty Act.


Read more from Caroline Adana.

Read More From Caroline Adana

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