How Modern Government Is Destroying the Presumption of Liberty Our Founders Cherished

Much of the political class of the founding generation, unlike our own, viewed the Constitution as restraining, not unleashing, the government.


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.

Until now.

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?

NEXT: Brickbat: Black Out

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Poor Mr. Napolitano was doing so well until the final paragraph.

    1. Money laundering and Ebola transmission are civil rights.

  2. Yes, but what about the natural lefts? Hmmmm? What about them?

    1. or natural middle

  3. ‘We will let you keep some of our money,don’t get to greedy’ A message form your masters at the I.R.S

    1. THE + IRS = THEIRS

  4. confiscation if the government detects a series of bank deposits that appear to be structured

    The IRS had jolly well better be going after the Federal Reserve.

  5. An inalienable right is one that cannot be taken away by majority vote or by legislation or by executive command.

    If only that were true.

    1. Hey, it’s true in *theory*!

    2. Inalienable rights cannot be taken away. They can be ignored and violated, but that’s not the same thing as taking them away.

      If I kill you, does that take away your right to live, or violate it?

      1. Does it matter? You’re dead either way.

        Natural rights are pretty pointless if they have no effect in the real world. They belong with sprites, fairies, and Santa Claus in our cogitation.

        1. Unprincipled pragmatists make for some great fertilizer! Just put them through a wood chipper, and presto! Your vegetables grow like crazy!

        2. Good point. Now, if you don’t mind, hold this target right about chest-level…there…and just stand real still.

          1. Are you implying that if it weren’t for natural rights we’d all start killing each other?

            1. You’re the one saying that there are no natural rights. That means you have no natural right to life. So then there’s absolutely nothing wrong with killing you, since it is not a violation of your nonexistent rights.

              1. If you kill me, then other people will kill you. Also, you lose the ability of trading with me for mutual benefit.

                Thinking you can have a functional society based on a whispy flimsy idea like natural rights is bonkers. You need something real and tangible to base a society on.

                1. If you kill me, then other people will kill you.

                  That would require someone missing you and caring, which I doubt would be the case.

                  Thinking you can have a functional society based on a whispy flimsy idea like natural rights is bonkers. You need something real and tangible to base a society on.

                  That’s why libertarians say that legislated law should be based upon natural rights and natural law. You obviously have no concept of what you are arguing against.

                  Go back to your perfect little world and have a circle-jerk with Tony and shrike.

                2. Thinking you can have a functional society based on a whispy flimsy idea like natural rights is bonkers. You need something real and tangible to base a society on.

                  I’m not a natural rights advocate, not in the way it’s usually meant anyway, but this is a false argument. There is no “real and tangible” base. They’re all intellectual constructs. Some are more epistemologically sound, but they’re all similarly intangible.

                3. Thinking you can have a functional society based on a whispy flimsy idea like natural rights is bonkers.

                  We did for a few hundred years. You might not have liked the way they arrived at the idea (God), but they still had it.

  6. Here’s a solution to this madness: mass migration of liberty loving folk to another country/continent. I nominate Australia. They have what, 23 million people? We could double that in a decade or so . . . not to mention that are close to being as free a country on Planet Earth that we have right now. I would say a secession is in order, but we know how that worked the first time.

    1. not to mention that are close to being as free a country on Planet Earth that we have right now.

      What in the hell gave you that idea? On just about every measure of liberty, save maybe economic, they’re worse off than the US.

      1. Paging ifh ….

      2. I know a few folks that have already emigrated to Oz, and they attest to the outstanding economic freedom. Socially, liberal/libertarian, save for gun rights. However, that too could change for the better if millions of libertarian types emigrated there. Think the Free State project writ large.

    2. Join me, I’m already here! And quick, before further bureaucracy takes hold. The Mining and Resource industries in Oz are heavily bureaucratized and exercising corporatist control; we need more liberty minded peeps to repel the tide

    3. Western Australia and The Northern Territory aren’t bad, yet. WA is moving towards being a bureaucratic shithole, but they don’t have enough enforcement available. More smaller companies and start-ups could make a bit of a difference.

      As for Victoria or New South Wales, not so much.

    4. They have strict immigration controls, and rightly so since they don’t have enough arable land even for the sparse population they already have.

      1. indeed we wouldnt want some country shipping off all their criminals and debtors to australia. oh, wait…

  7. Oh look, Napolitano saying that the Founding Fathers shit vanilla ice cream again.

    In many areas the laws in 1789 proscribed freedom far more severely than the laws of today, just at the state level. Even at the federal level, it was mostly the same Congress that passed the Bill of Rights that 10 years later passed the Alien and Sedition Acts. And that’s if you’re a white male. If you were a woman or, God forbid, of African descent, the chatter about natural rights was a sick joke back then.

    Not that I’m defending the power grabs of today’s wannabe tyrants, but pretending that there was a time when everyone was a libertarian in America is ridiculous and reinforces the faith in “just needing the right people in charge” which is inimical to actually increasing liberty. The right people are never going to be in charge and never have been. We have to deal with the fact that the people in power are NOT libertarians and skew things so that they have to do the right things.

    1. You understand, of course, that there is a difference between philosophical underpinnings and practice, right? And that on the philosophy, they got it right, and that society (and even their own practices) had to evolve to catch up, right?

      1. OK, so does George W Bush get credit for talking about fiscal restraint and a humble foreign policy? Does Obama get credit for talking about the importance of transparency and not getting into dumb wars?

        1. Oh!



          People aren’t perfect?


          1. The worst imaginable bloviating hypocrisy entailing owning human beings for forced labor… eh nobody’s perfect!

            1. Murder, that’s worse. You know, that thing that government does all the time?

              Then again, what do you call it when the person owns nothing because if he fails to pay his “protection fee” armed men will take it from the person? What do you call it when nothing is ever earned by that person unless his “protection fee” is charged first? So that person really owns no property and only earns what their “allowed” to keep. And you think that the organization that does this to ALL of use is good and the best organization to prevent slavery?

        2. No, because both of them are insincerely spouting ideas first touched upon by the founding generation, then are going out and explicitly and spectacularly violating them.

          1. Oh please. Those ideas didn’t originate in 1776 or 1789. The DoI and Constitution is basically warmed over Locke, Voltaire, and Montesquieu.

            And I’d call writing “all men are created equal” and then going home and beating and raping human beings because you can, a pretty spectacular violation of ideals.

            1. I see. So if you don’t perfectly adhere to the principles you support, then your principles are wrong because you’re a bad person. That makes total sense. Judge ideas by the person, no the ideas themselves. Is that about right?

              1. No, it’s completely wrong. You’re viewing the world through a filter that is clogged with shit. From the inside, most likely.

                1. Please help me unclog my filter, Mr Perfect. Will you help me with your perfect ideas and perfect principles? I want to be perfect like you. Because you obviously have it all right, since you have a personal attack for everyone who has ideas that you don’t like. Your perfection is just perfect. I am in awe.

            2. So tell me, where do I find a perfect human being who perfectly adheres to their perfect ideas and perfect principles?

              Because as long as you can shoot down someone’s ideas and principles by attacking the person, no principles or ideas are safe. Since no one is perfect.

              Well, excepting you of course.

              1. I never attacked the principles in this subthread, only the idea that the principles used to be practiced, in the good old days, when George Washington’s farts smelled like perfume.

                1. But obviously those principles were flawed, since the people who espoused them did not perfectly practice them. They must be thrown away and discarded, because the founders were not perfect like you.

                  1. You’re projecting an ad hominem attack that I never made.

                    See ya later, it’s been real. Real annoying, that is.

                    1. Yeah…it tends to be annoying trying to defend an indefensible position (i.e. that principals always and forever trump principles).

    2. Congress didn’t pass the bill of rights

      1. Yes, they did. That’s the first step in the amendment process.

  8. “Liberty our founders charised”

    You mean the founders that were keeping Black people as chattel? Because wars for a rich, landed gentry equal freedom. Wars for ending Black indentured servitude equal tyranny. 9/11 was an inside job, amirite, Andrew?


    (I love this clip for the embarrassed look on Kennedy’s face and, of course, for the Black guy)

    1. The founders had slaves! That means they were wrong about everything!

      1. I hope you realize it’s only going to get worse from here, sarc. The trolls are upon us.

        1. First they ignore you,
          Then they troll you,
          And then you win.

          1. It would have been interesting to see how well Gandhi’s schtick would have worked against any “oppressor” other than the British. Maybe if he moved north and practiced passive resistance against the Soviets.

            Libertarianism’s been stuck in the ignore and mock loop for a long time.

            1. Non sequitur much?

              Who said that libertarians don’t believe in armed resistance? Perhaps there are a few but I have yet to meet one.

        2. Anyone who disagrees with you is a troll? Excellent way of keeping your beliefs safe. Not so excellent if you value growth and learning, though.

          1. Growth and learning courtesy of this guy. Yeah, I think I’m good on “growth and learning”, chief.

          2. Holy shit, you’re a Tulpa.

      2. But Barack Obama never owned any slaves and you think he’s the devil. What has he done worse than owning slaves?

        1. Who thinks what now?

          1. All of us libertarians who are actually conservative Republicans who get our marching orders from Rush Limbaugh. Do I have to explain everything?

            1. Sorry. I have to go find an AM radio now.

              I’ll try more harder next time.

        2. team blue troll vs team blue troll. nauseating.

  9. Well government should not protect us from Ebola. Viruses should have rights. And the people carrying viruses should have more rights. Especially the right to spread the virus.

    I think that once the doubling starts this nonsense about Ebola exposed people will stop. A few thousand dead Americans will change everything.

  10. 1775 to 1782 Smallpox Epidemic in America

    In the Americas, efforts were made to control smallpox during the Revolutionary War. George Washington, at the time the leader of the Continental Army, chose to take some calculated risks. One method he used was to avoid the disease through quarantine. If any of his soldiers caught the disease, the exposed soldiers were removed from duty and sent to an isolated hospital designated for those with smallpox.

    1. Paid soldiers in a military being sent (or deployed in today’s parlance) to a hospital are not in any way analogous to civilians being quarantined by the government against their will.

      1. So whose will is more important in the outbreak of an infectious disease – the one possibly infected person or the millions who don’t want any chance to be infected.

    2. Relevant word in your sentence: “caught”.

      No evidence that the quarantined nurse caught Ebola has been presented. She is not showing symptoms.

      The involuntary quarantine of people with symptoms of contagious dangerous diseases has been upheld.

      It is estimated that 1/3rd of the world’s population has been exposed to TB (they would test positive for it). However, as relatively few will ever become symptomatic and contagious, we don’t go locking all of those exposed in tents.

  11. A few thousand dead Americans will change everything.

    Don’t wait. Get yer panic on!

  12. You know who else thought his particular ideological beliefs had foundations in the laws of nature? Adolph Hitler. And countless religious charlatans and demagogues throughout the ages, people who didn’t want to bother with defending their ideologies on merits.

    Not to mention the complete contradiction of pleasuring yourself to the superiority of your version of natural law while pleasuring yourself to the US constitution, which is a written legal codification of the things you claim don’t need to be codified because nature did them.

    1. Oh look. How cute. The retard finally got out of bed. Did mom make you breakfast?

      1. Your mom’s not really the breakfast making type.

        1. She didn’t make you muffins? Wow.

  13. As Mr. Napolitano well knows, the presumption of liberty standard in US law has been gone for a hundred years. This is nothing new.

  14. my buddy’s step-aunt makes $69 /hr on the laptop . She has been without work for 8 months but last month her pay check was $20626 just working on the laptop for a few hours. hop over to here ….

    ????? http://www.netjob70.com

  15. another great napolitano op-ed

  16. In a libertarian society, everyone would carry liability insurance to protect himself from suits.

    So when your insurance company learns you’ve been tending to Ebola patients, they may tell you – you better self-quarantine to be on the safe side. If you refuse to self-quarantine, we can’t stop you, but we’ll suspend your coverage.

    Then you make the free choice of either self-quarantining or losing liability coverage in that tiny instance where you spread Ebola to someone else before you are symptomatic.

  17. Speaking of the Founding Fathers, here’s a quote by Mr. Ben Franklin: “A man that values his security over his freedom deserves neither”.
    Think about the courage and the spirit of 1776. Can you rise to the challenge and be a true American patriot to put government back into the box where it belongs?

  18. An inalienable right is one that cannot be alienated, i.e. transferred to another (from Latin ali?num ‘of another’). If you deny my inalienable right, you do not thereby gain it; you cannot enjoy my right to life as I do, nor add it to yours.

    The king claims that, by taking (alienating) property from me, he makes better use of it than I could do; but inalienable interests cannot be taken and used, only destroyed (wholly or in degree), so such an argument cannot apply to them. That is why these two kinds of rights are distinguished.

    The freedom to visit Cuba or send money to ISIS is as inalienable as life, yet not considered as sacred.

Please to post comments

Comments are closed.