As a procedural matter, presuming innocence is preferable, because an erroneous conviction is harder to fix than an erroneous finding of innocence.20 And as a substantive matter, the presumption of innocence is better because a wrongfully convicted person suffers a different, more personal harm than the public experiences if a guilty person goes free.
Likewise, there are an indefinite number of speculative reasons that might defeat anyone trying to prove that he should not be deprived of freedom, just as there are an infinite number of “what ifs” that the “Devil” could use against a defendant who tries to prove he did not commit a crime, or a person who tries to disprove the existence of an invisible teapot: What if a person abuses his liberty? What if he doesn’t know how to use it wisely? What if he turns out to be a psychopath – or perhaps his children or grandchildren turn out to be psychopaths? What if there are top-secret reasons of state that warrant imprisoning him – reasons no judge may be allowed to see? Wary of the Devil’s proof, logicians place the burden on the person who asserts a claim, because that is the only logically coherent way to think. Likewise, the presumption of freedom requires those who would take away our liberty to justify doing so, because that is the only logically workable way to think about politics and law.
The Eleventh Circuit Court of Appeals made this point well in a 2013 case, when it required government officials to justify a policy of random drug testing that was challenged as an unconstitutional search. It would be “impossible,” the court said, to force the people who complained about the tests “to speculate as to all possible reasons justifying the policy they are challenging and then to prove a negative – that is, prove that the government had no special needs when it enacted its drug testing policy.”21 For the same reasons, we presume people are free and require those who would limit our freedom to justify doing so.
When the founders spoke of all people being created free and equal, they were not merely uttering slogans. They were making important statements about logic and human nature. Their starting point was equality: every person possesses himself or herself, and no person is singled out to rule another person by automatic right. There are exceptions to this rule – adults are the natural rulers of children, for example – but even this is only a temporary and limited condition; parents do not own their children. Normal, mature adults who communicate with one another and use reason have no fundamental entitlement to control one another. As Jefferson put it, nobody is born with a saddle on his back, and nobody is born wearing spurs.22 Or, as the Continental Congress declared in 1775, “If it [were] possible for men who exercise their reason, to believe that the divine Author of our existence intended a part of the human race to hold an absolute property in, and an unbounded power over others ... the inhabitants of these Colonies might at least require from the Parliament of Great Britain some evidence, that this dreadful authority over them has been granted to that body.”23 Anyone who purports to govern another must justify his right to do so. Merely making the assertion is not enough.
This was the idea James Madison considered the “most triumphant” achievement of the American Revolution. Under the British constitution, where “charters of liberty” were “granted by power,” the subject was not free unless he could persuade the government to allow him some freedom. Even then, his freedom might be taken away if the government saw fit to do so. But the American Revolution ushered in a new society, one which recognized that people are basically free, and the government exists at their mercy. The new Constitution was a charter of power granted by liberty. Freedom would be the general rule and government power the exception. This principle marked the revolutionary core of the Declaration of Independence.
Nonsense on Stilts?
When the Declaration was published, critics promptly saw it as a dangerous first step toward ending monarchy and proclaiming liberty to all mankind. Many royals prohibited newspapers from printing translations of it.24 In England, conservatives such as Jeremy Bentham and former royal governor of Massachusetts Thomas Hutchinson published rebuttals of it. Hutchinson dismissed the proposition that all people are equally entitled to freedom as “absurd,” because “if these rights are so absolutely unalienable,” it would be impossible to “justify depriving more than an hundred thousand Africans of their rights to liberty.”25 That accusation of hypocrisy certainly struck home, but it hardly proved that the patriots were wrong to pronounce the right of all human beings to be free. On the contrary, slavery is unjust only because the Declaration’s principles are true. Freedom is not a privilege that white people could justly withhold from black people – it is a right. Freeing the slave is not doing him a courtesy but undoing a wrong.
Bentham was more specific. Ridiculing the idea of equality, he proclaimed that the Declaration’s self-evident truths about inalienable human rights were absurd: “nothing which can be called Government ever was, or ever could be, in any instance, exercised, but at the expense of one or other of those rights.”26
That reaction is unsurprising, given Bentham’s well-known view that natural rights are “nonsense upon stilts.”27 Rights, in his opinion, were only privileges created by the government – the “sweet fruits” of government,28 which are essentially “fictitious,”29 while law is “real.”30 Law is fundamentally a “command [which] supposes eventual punishment.”31 So when we speak of rights, we only mean that the government will punish anyone who interferes with whatever thing is labeled someone’s right. And because “[t] he law cannot confer a benefit, without at the same time, imposing a burthen somewhere,” the government can only give one person a right by taking away the rights of someone else.32
To this day, many follow Bentham in dismissing the idea of natural rights and arguing that freedom is really given to us by the government, when it restricts the freedoms of others – that, for example, our right to private property is really nothing more than the government barring others from taking away our things. This “positivist” theory found its most influential supporter in the twentieth century in Supreme Court Justice Oliver Wendell Holmes Jr. Holmes, who proudly “sneered at the natural rights of man,”33 followed Bentham in arguing that what we call rights are really only “preferences,” supported by “the fighting will of the subject to maintain them.” They are essentially “arbitrary,” just as “you cannot argue a man into liking a glass of beer.”34 Rights are only subjective, personal desires, which the government chooses to protect on pain of punishment. They are manufactured at the state’s pleasure and for the state’s own purposes.
Positivism’s adherents have always claimed that this is a more “realistic” way of looking at things and have lauded themselves for waving away the Declaration’s abstractions about natural rights, which Holmes likened to “churning the void in the hope of making cheese.”35 But this alleged realism is far weaker than positivists maintain.
For one thing, the idea that rights are created by government fiat depends on the presumption that laws are only commands issued by the ruler. But this is not the case. Laws are not commands, as the influential legal philosopher H. L. A. Hart (himself a positivist) explained in his classic book, The Concept of Law. Laws are general rules that remain in place indefinitely, whereas commands are directed to specific people for particular reasons and are usually temporary. Also, laws are not always backed up by punishments: there is no punishment if a person fails to sign a will, for instance, even though a will must be signed to be legally valid. Marriage