On the Presumption of Liberty

“[Harvey] Weinstein’s behavior is certainly dreadful, but even dreadful people have the right to a criminal defense. Indeed, probably most people who are charged with serious crimes, whether guilty or not, are not nice people, and many are moral reprobates. Yet forcing the government to prove guilt before tossing our fellow citizens in jail—even the reprobates among us—is the mark of a free people.”

This quote is taken from John McGinnis’ fine blog post The Campus Mob Comes for the Presumption of Innocence. A presumption of innocence permeates our justice system: the government has the burden of proof to convict. What’s more, this burden of proof is extremely high. The prosecution does not just need to produce some theory that the defendant might have committed the crime. Even a preponderance of evidence is not enough to take away a man’s liberty. What is necessary is the government needs to prove guilt beyond a reasonable doubt. Until that threshold is met in the eyes of a jury, the defendant is presumed innocent.

A presumption of innocence has a parallel in the presumption of liberty. The presumption of liberty holds that in assessing government policy we must meet a high burden of proof in order to endorse a reform that reduces liberty. There may be occasions where such intervention is desirable, sometimes even for overall liberty, but the mere possibility of such exceptions does not in and of itself justify the exception. A burden of proof must be met.

No liberal society can suffer the lack of a presumption of liberty. As McGinnis says above, the presumption of innocence, even to moral reprobates, is the mark of a free people. Likewise, the presumption of liberty, even if dealing with moral reprobates, is the mark of a free people. Exceptions can be made, such as the moral reprobate being thrown in prison after being shown beyond a reasonable doubt he committed a crime, but they must be exceptions rather than general rules.

Trade cannot be kept as free as it is without a presumption of liberty. The “free trade = fair trade” and “only reciprocal trade is free trade” claims are damaging to liberal society, because they weaken the presumption of liberty. Managed trade, where freedom to exchange is treated as an exception rather than a rule, spells illiberalism. The presumption of liberty must stand.