Judge Andrew P. Napolitano*
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.
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?
*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.