Andrew Napolitano on the Importance of the Presumption of Liberty
James 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, recognized that natural rights—areas of human behavior for which we do not need a government permission slip—are truly inalienable. An inalienable right 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, explains Andrew Napolitano. 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.
