Should I be charged with a felony, I know that as an American I am presumed innocent. This presumption of innocence means I will remain in possession of my God-given liberty until a jury of my peers finds me guilty, and a judge determines that I shall forfeit an element of my liberty, my freedom to move about in society as I please.
In a larger sense encompassing the presumption of innocence, there is the presumption of liberty. Liberty comprises all of the enumerated, unenumerated as well as implied rights and privileges of our Constitution. Until I prove myself unfit for them, I retain them all.
This umbrella presumption of liberty is the first line of defense for every individual who steps into a courtroom.
Yet what of the larger picture when the liberty of hundreds of millions is at stake? Where is the presumption of liberty, for instance, when government denies an element of liberty to millions by its command to purchase a private product under Obamacare? When such laws are challenged, federal courts unfortunately assume the law or regulation in question is constitutional. According to what scotus calls the “presumption of constitutionality,” congressional legislation and administrative rules will be upheld if any “rational basis” for their passage can be imagined, unless they violate a “fundamental” right—and liberty has not been deemed by the Court to be a fundamental right!*
As opposed to the trial of an individual who stands to possibly lose an element of his liberty, courts assume government can deprive by law, an element of liberty from hundreds of millions without proof of guilt at all. When appropriate, the denial of liberty is suited for individual punishment; it is anathema as public policy.
An actual presumption of liberty across the spectrum of all cases and disputes in which liberty is at risk, whether for an individual or for us all, would uniformly place the burden of proof where it belongs, on the government. In the case of Obamacare, a presumption of liberty would have forced government to prove why we should be deprived of the liberty to forego health insurance. By what mass offense can we all be possibly unfit to exercise the liberty not to purchase Obamacare?
Our government was designed to implement the Declaration of Independence. It exists to secure our unalienable rights. A judiciary dedicated to this concept would demand the government establish why its statute or regulation should be allowed to negate the unenumerated rights protection of the Ninth Amendment to many millions.
Congress could implement this change through its Article III “exceptions and regulations” authority over the federal courts’ appellate jurisdiction.
Of course, congress has proved itself quite incapable of doing its duty. It is therefore up to us, the sovereign people to do our duty to secure liberty under a free government of our design.
* Barnett, R. E. (1993). The Rights Retained by the People: The History and Meaning of the Ninth Amenment Volume II. Fairfax, VA: George Mason University Press.