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Applying the Presumption of Liberty to All Laws

Why wait for the Supreme Court to decide if laws are constitutional until after they are enacted?

Level: Liberty Explorers - Elementary School Liberty Discoverers - Middle School Liberty Patriots - High School
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Democrats are pushing to pack the Supreme Court with additional judges, while there is a mounting movement by Republicans for a constitutional amendment to keep the number of justices unchanged. However, some could say this solution is a mere band-aid on a massive security hole in the U.S. government.

The Presumption of Innocence

When the Founding Fathers created the Constitution, they endowed it with the principle of diffusing, dividing, and balancing the powers of the government to avoid tyranny and abuse. One such balance is the presumption of innocence.

When someone is put on trial, all the power is stacked against the accused. The government has the resources and power to put people in prison. However, placing the burden of evidence on the prosecution and granting the accused the presumption of innocence helps cancel the power imbalance. It is harder for the government to abuse its power if it must prove guilt beyond a reasonable doubt.

Presumption of Liberty

It is a great injustice to put a single innocent person in jail. Imagine how much greater the injustice is if a new law is passed that systemically violates the rights of all innocent people. Therefore, the presumption of innocence could be generalized to the legislative process. The Founding Fathers left a giant security hole and potential for abuse by not balancing the power of Congress with a sufficiently powerful veto by the Supreme Court. For a law to be judged as unconstitutional, it often takes years of legal action.

Fortunately, this can easily be fixed: Treat every new law as a trial against the American people where they are assumed to be free until proven otherwise. Let’s call it the presumption of liberty.

Congress would then need to prove beyond a reasonable doubt in the Supreme Court that the new law does not violate individuals’ “unalienable rights” as written in the Declaration of IndependenceConstitution, and the Bill of Rights. The Supreme Court would act as the jury, and its verdict would need to be unanimous, just like in a murder trial.

In practice, the consequence is that a single justice could stop a new law. This would make the question of court-packing moot since every new justice would reduce the chance of a new law being approved.

Some may claim that the presumption of liberty is too strict, but why should it be easier to make a law than convict someone of a crime? Isn’t systemic injustice worse than a single instance?


Although this solution would be easy to implement, it may be near impossible to get Congress to agree to pass any law or constitutional amendment that would limit its power so severely.

Nevertheless, people grow more aware of the issue of government overreach. Think tanks could go through U.S. laws and evaluate what percentage of them would survive the presumption of liberty.

Although a constitutional amendment is unlikely, it is not unthinkable that a liberty-oriented Congress could pass a law that would require it to prove the legitimacy of every new law beyond a reasonable doubt in the Supreme Court. It could even be called the Presumption of Liberty Act.

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