The Attack on America 2018
Before framing the Constitution, the Framers studied history for 500 years before Christ. Fearful of the public majority, they deliberated in secret with windows closed and the doors locked despite the sweltering summer heat in 1787. Their purpose was to identify the repetitive political failures that lead to the demise of political organizations, particularly governments. Successfully defining those elements required of successful and enduring governments using valid uncorrupted history as their guide, they created an order of law giving structure to the new government. This was a new experiment in freedom and justice for all.
Critical to all relationships of every size and composition, this “supreme law of the land” was binding on all parties. Further, because the intention of the makers of the law must be upheld for any organization to succeed, they established a due process by which any deviation from that original intention must be accomplished. Amendment of the Constitution required ratification by three fourths of the states. Similarly, always fearful of the public majority and intending to limit government, they instituted checks and balances on the structures of government, and the Electoral College.
The attack on America has been prosecuted by those violating the original intention of the Constitution. Proceeding because voters have not held those they elect to their oath of office to “protect and defend this Constitution” from “enemies, foreign and domestic”, every branch of government has displayed some injustice.
Recently, a doctrine of law that is foundational to the judicial process was violated by the legislative branch. That doctrine demands that all are innocent until proven guilty. Using character assassination, guilt by association, double standards, blatant lies and deceptions, and other means that are so despicable that the Framers and Founders never even considered addressing them, some members of Congress attack the Constitution itself. Without any valid evidence acceptable to any court of law, due process according to the Constitution is trashed.
This attack on America stands beside the failure of the Senate to uphold truth as the prime requisite determining and establishing justice.
The Presumption of Innocence
The presumption of innocence has been repeatedly recognized and reaffirmed by this Court as a deeply- held and foundational principle underlying our justice system, long predating the adoption of the Constitution and firmly embedded within the “due process of law” protected by the Fifth and Fourteenth Amendments. This Court has recognized that the presumption of innocence “is stated as unquestioned in textbooks, and has been referred to as a matter of course in the decisions of this court and in the court of the several states.”2 Simply put, “it is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.”3
This principle – that all individuals are presumed innocent until validly convicted in a court of law – is “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if [it was] sacrificed.”4 The origins of the presumption go well beyond our own Anglo-American legal system, stretching back to Roman antiquity and beyond to the Old Testament. Infra pp. 6-7. The presumption was central to the English common law, including the writings of Sir William Blackstone. Infra p. 8. And disregard for the presumption of innocence was one of the motivating factors behind the Declaration of Independence at the time of this nation’s birth. Infra pp. 9-10. Moreover, the presumption of innocence has never been limited to criminal cases but extends through all the law. Infra pp. 11-14. Unsurprisingly, given that pedigree, the presumption of innocence has been repeatedly reaffirmed by this Court. Infra pp. 15-17.
- The Presumption of Innocence Is Deeply Rooted in Our Nation’s History and Tradition, Such That It Is Implicit in the Concept of Ordered Liberty.
The presumption of innocence is such a foundational principle – so suffusing every aspect of our legal system – that it is perhaps at risk of being taken for granted. This brief thus begins by tracing the origins of that principle, its extension beyond the requirement that criminal charges be proved beyond a reasonable doubt, and its repeated application by the decisions of this Court.
- The Presumption of Innocence Has Deep Historical Roots.
The presumption of innocence has been called “a general principle of our political morality,”7 “a guardian angel,”8 the “cornerstone of Anglo-Saxon justice,”9 “a touchstone of American criminal jurisprudence,”10 “the golden thread that runs throughout the criminal law,”11 and the “focal point of any concept of due process.”12 This basic principle traces its roots far past our nation’s Founding, through English common law to writings from antiquity and even the Old Testament.
Several writers have observed the Biblical foundations of the presumption of innocence.13 In the Book of Genesis, after Adam and Eve ate the forbidden fruit, God did not summarily punish them but instead summoned them to hear their pleas:
“Have you eaten of the tree of which I commanded you not to eat?” The man said, “The woman, whom you gave to be with me, she gave me fruit of the tree, and I ate.” Then the LORD God said to the woman, “What is this that you have done?” The woman said, “The serpent deceived me, and I ate.”14
Thus, even an omniscient God did not presume Adam and Eve to be guilty, but only inflicted punishment after obtaining proof through confessions (and presumably rejecting Adam’s defense of entrapment and Eve’s defense of fraud). The presumption of innocence found even more concrete expression in the Book of Deuteronomy, which states that “[o]ne witness is not enough to convict anyone accused of any crime” and instructs judges to “make a thorough investigation” before inflicting punishment.15
The presumption of innocence can definitively be traced back to antiquity and the ancient Roman maxim, de quolibet homine presumitur quod sit bonus homo donec probetur in contrarium, meaning, “each person may be presumed to be a good man, until the contrary is proved.”16 A related maxim embodying the presumption of innocence stated, ei incumbit probatio, qui dicit, non qui negat, meaning “the burden of proving a fact rests on the party who asserts it, not on the party who denies it.”17 The Emperor Trajan, mean- while, wrote that a person should not “be condemned on suspicion; for it was preferable that the crime of a guilty man should go unpunished than an innocent man be condemned.”18
The presumption of innocence was once again picked up in the writings of Enlightenment philosophers. Voltaire, for instance, wrote of “that generous Maxim, ‘that “tis much more Prudence to acquit two Persons, tho” actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent.’ ”19
From there, the presumption of innocence took firm root in English common law.20 Echoing Voltaire, as well as Emperor Trajan, Sir William Blackstone declared that “the law holds, that it is better that ten guilty persons escape than that one person suffer.”21
Blackstone’s Commentaries on the Laws of England “not only provided a definitive summary of the common law, but was also a primary legal authority for 18th- and 19th-century American lawyers.”22 Influenced by both Voltaire and Blackstone, Benjamin Franklin, “our founding grandfather,”23 wrote, “That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.”24
In fact, one of the motivations leading up to the Declaration of Independence from Great Britain was the Crown’s disregard for this principle of innocent until proven guilty.25 The American colonists had many objections to the infamous Sugar Act of 1764 and its companion, the Stamp Act of 1765. In addition to the core complaint of taxation without representation,26 the colonists strongly objected to the enforcement provisions of the two statutes. Whereas in England actions asserting violations of similar laws were tried before a jury, cases alleging violations of the Sugar and Stamp Acts were to be tried in newly created American vice-admiralty courts where there were no jury trials.27
“The most onerous provisions”28 of the Acts required merchants whose vessels were seized for alleged customs violations to bear the burden of proving that they were not guilty.29 Thus, one grievance leading to the American Revolution was the Crown’s disregard for the presumption of innocence – a feature shared with Colorado’s scheme here.
The Parliament . . . guarding the People of the Realm, and securing to them the Benefit of a Tryal by the Law of the Land, and . . . depriving all Americans of that Privilege – What shall we say to this Distinction? Is there not in this.., a Brand of Infamy, of Degradation and Disgrace fixed upon every American? Is he not degraded below the Rank of an Englishman?’
Id. at 336 (quoting John Adams, Admiralty Notebook, in micro- films of the Papers of John Adams, pt. III, reel 184).
- The Presumption of Innocence Is Integral to the Concept of Justice and Due Process of Law.
The presumption of innocence extends well beyond the requirement that the government must prove guilt beyond a reasonable doubt in a criminal trial and is, in fact, an axiomatic principle that defines the concept of justice and due process throughout our entire legal system. “[N]either liberty nor justice would exist if [it was] sacrificed.”30
The presumption of innocence is more than a simple evidentiary presumption, and instead reflects a long-standing societal judgment about the degree of legal process that is required to strip an individual of liberty and property. The presumption is a “shorthand description of the right of the accused to remain inactive and secure, until the prosecution has taken up its burden.”31 It “takes possession of this fact, innocence, as not now needing evidence, as already established prima facie.”32 In other words, the presumption does not depend on a judgment that an individual is in fact more likely innocent than guilty; indeed, as a factual matter, it might be more reasonable to assume that anyone who has been arrested and indicted is more likely guilty than not.33 Instead, the presumption stands for the basic proposition that a person can be deprived of rights to liberty or property only following a valid conviction by a court of law.
Respect for this presumption of innocence is foundational to the very concept of justice. The presumption emerged in the English common law as part of a profound transformation in the nature and function of legal proceedings, and it can be contrasted to other, medieval approaches to the administration of justice:
An accused did not have to demonstrate innocence by hands unscarred from hot coals, irons, or stones. An accused did not have to bring together twelve peers in a wager of law to swear that his or her oath of innocence was clean and trustworthy. God could no longer reveal the innocent from the murderer, thief, and robber. Proof of factual innocence was replaced by proof of legal guilt or its absence, legal innocence. Legal standards and burdens of proof acknowledged what ancient fact finders and jurists could not: Definitive proof of factual innocence was too much of a burden for mortals to bear.34
In other words, the presumption of innocence is intrinsic to the very idea of a rational and orderly justice system. The presumption marks the divide between a world where individuals can be subjected to arbitrary and irrational deprivations of their liberty and property – forced to win back their rights through an affirmative showing of innocence – and a world where rights can be infringed only following a valid legal judgment of guilt.
This “general rule of policy and sense” – that all persons shall be assumed, in the absence of evidence, to be free from blame – runs “through all the law.”35
It often has been stated in the context of criminal proceedings,36 but it is by no means limited to that context.37 To the contrary, its first appearance in the American colonial courts, an early (1657) decision of the General Court of Massachusetts, emphasized its broader applicability:
Whereas, in all civil cases depending in suit, the plaintiff affirmeth that the defendant hath done him wrong and accordingly presents his case for judgment and satisfaction, it behoveth both court and jury to see that the affirmation be proved by sufficient evidence, else the case must be found for the defendant; and so it is also in a criminal case, for in the eyes of the law every man is honest and innocent unless it be proved legally to the contrary.38
In other words, the presumption of innocence applies broadly beyond criminal cases and is integral to due process of law.
- This Court Has Consistently Recognized That the Presumption of Innocence Is Constitutionally Required.
Unsurprisingly, in light of the pedigree and importance of the presumption of innocence, this Court has long recognized the presumption of innocence as a touchstone of the American justice system. As early as 1827, the Court acknowledged that “the general rule of our jurisprudence is, that the party accused need not establish his innocence, but it is for the government itself to prove his guilt, before it is entitled to a verdict of conviction.”39
In Coffin v. United States, the Court explicitly recognized the presumption of innocence as a fundamental principle of criminal law. The question presented was whether the trial court had violated a defendant’s rights by not instructing the jury on the presumption of innocence. Before embarking on a detailed historical analysis of its origins, the Court characterized the presumption of innocence as “axiomatic and elementary,” affirming that “its enforcement lies at the foundation of the administration of our criminal law.”40
Since then, the Court has repeatedly held that the presumption of innocence is constitutionally required. For example, in In re Winship, the Court held that juveniles, like adults, were entitled to proof beyond a reasonable doubt when charged with a violation of criminal law.41 The Court reiterated that the presumption of innocence, as a “bedrock” principle, was constitutionally required.42 In Estelle v. Williams, the Court declared that, “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.”43 And in Taylor v. Kentucky, the Court concluded that the presumption of innocence “is an element of Fourteenth Amendment due process, an essential of a civilized system of criminal procedure.”44
The Court has also adhered to this same principle in analyzing the constitutionality of legislation. In Tot v. United States, the Court rejected the idea that “the legislature might validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt.”45 And in McFarland v. American Sugar Refining Co., the Court stated that “it is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.”46
2 Coffin v. United States, 156 U.S. 432, 454 (1895).
3 McFarland v. Am. Sugar Ref. Co., 241 U.S. 79, 86 (1916) (Holmes, J.), cited with approval by Patterson v. New York, 432 U.S.197, 209 (1977).
4 Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (quoting Palko v. Connecticut, 302 U.S. 319, 325-26 (1937)).
7 William S. Laufer, The Rhetoric of Innocence, 70 Wash. L. Rev. 329, 338 (1995) (quoting William Twining, Rethinking Evidence: Exploratory Essays 208 (1990)).
8 Laufer, supra, at 338 (quoting James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law 553 (1898)).
9 Laufer, supra, at 338 (quoting Henry J. Abraham, The Judicial Process 96 (1993)).
10 Laufer, supra, at 338 (quoting People v. Layhew, 548 N.E..2d 25, 27 (Ill. App. Ct. 1989)).
11 Scott E. Sundby, The Reasonable Doubt Rule and the Meaning of Innocence, 40 Hastings L. J. 457, 457 (1988-1989) (citations omitted) (quoting Rupert Cross, The Golden Thread of the English Criminal Law: The Burden of Proof 2 (1976)).
12 Sundby, supra, at 457 (quoting Sandra Hertzberg & Carmela Zammuto, The Protection of Human Rights in the Criminal Process Under International Instruments and National Constitutions 16 (1981)).
13 See Coffin v. United States, 156 U.S. 432, 454 (1895) (citing Simon Greenleaf, III, A Treatise on the Law of Evidence § 29, at 31 n.1 (Edmund H. Bennett & Chauncey Smith, eds., 1853) (tracing the presumption to Deuteronomy); see also Alexander Volokh, N. Guilty Men, 146 U. Pa. L. Rev. 173, 173, 178 (1997) (identifying biblical passages loosely related to the presumption of innocence).
14 Genesis 3:11-13.
15 Deuteronomy 19:15-20; see also Numbers 35:30.
16 James Bradley Thayer, The Presumption of Innocence in Criminal Cases, 6 Yale L. J. 185, 190 (1897).
17 Laufer, supra, at 332 n.14 (citing George P. Fletcher, Rethinking Criminal Law 520 (1978)).
18 Volokh, supra, at 178 (quoting Dig. 48.19.5 (Ulpian, De Officio Proconsulis 7).
19 See Dan Gifford, The Conceptual Foundations of Anglo- American Jurisprudence in Religion and Reason, 62 Tenn. L. Rev.759, 761 n.6 (1995) (quoting Respectfully Quoted 183 (Suzy Platt ed., 1992) (quotation from a 1974 translation of the 1749 version of Zadig).
20 In-depth treatments of these developments can be found in Anthony A. Morano, A Reexamination of the Development of the Reasonable Doubt Rule, 55 B.U. L. Rev. 507 (1975); Laufer, supra; Thayer, supra; and Jeff Thaler, Punishing the Innocent: The Need for Due Process and the Presumption of Innocence Prior to Trial, 1978 Wis. L. Rev. 441 (1978).
21 4 William Blackstone, Commentaries, *358 (1765).
22 Washington v. Glucksberg, 521 U.S. 702, 712 (1997).
23 See Dudley R. Herschbach, Our Founding Grandfather, Harv. Mag., Sept. 2003.
24 Letter from Benjamin Franklin to Benjamin Vaughan (March 14, 1785) in 9 The Writings of Benjamin Franklin, 1783-1788, at 293 (Albert H. Smyth ed., 1906).
25 See Declarations and Resolves of the First Continental Congress (Oct. 14, 1774), available at http://avalon.law.yale.edu/18th_century/resolves.asp.
26 See Samuel Adams, Report on the Sugar Act (May 1764), in Theodore Draper, A Struggle for Power: The American Revolution 219 (1996) (“If Taxes are laid upon us in any shape without our having a legal Representation where they are laid, are we not reduced from the Character of free Subjects to the miserable State of tributary Slaves?”).
27 See Matthew P. Harrington, The Legacy of the Colonial Vice-Admiralty Courts (Part B), 27 J. Mar. L. & Comm. 323, 332 (1996) (noting this was “a constant source of irritation to the American colonists”). For example, John Adams argued that the use of the vice-admiralty courts to try trade cases placed an unfair burden on Americans:
28 Harrington, supra, at 333.
29 For example, Article XLV of the Sugar Act provided: [I]f any ship or goods shall be seized . . . and any dispute shall arise whether the customs and duties for such goods have been paid . . . then, and in such cases, the proof thereof shall lie upon the owner or claimer of such ship or goods, and not upon the officer who shall seize or stop the same; any law, custom, or usage, to the contrary notwithstanding.
The Sugar Act (Apr. 5, 1764) in Prologue to the Revolution: Sources and Documents on the Stamp Act Crisis 1764-1766, at 8 (Edmund S. Morgan ed., 2012).
30 Washington v. Glucksberg, 521 U.S. 702, 721 (1997).
31 Taylor v. Kentucky, 436 U.S., 478, 483 n.12 (1978); see also id. (explaining that “the so-called ‘presumption’ is not evidence – not even an inference drawn from a fact in evidence – but instead is a way of describing the prosecution’s duty”); Commonwealth v. Webster, 59 Mass. 295 (1850), abrogated on other grounds by Commonwealth v. Russell, 470 Mass. 464 (2015) (“All the presumptions of law independent of evidence are in favor of innocence, and every person is presumed to be innocent until he is proved guilty.”) (emphasis added).
32 Thayer, supra, at 199; see also id. (explaining that the presumption of innocence means that, even if a person is “under grave suspicion,” “he is not to suffer in your minds from these suspicions or this necessity of holding him confined and trying him”).
33 See Zechariah Chafee, The Progress of the Law, 35 Harv. L. Rev. 302, 314 (1922) (“There is no probability that a man indicted by a grand jury is usually innocent”); Thayer, supra, at 199 (“[I]f the jury were not thus called off from the field of natural inference, if they were allowed to range there wherever mere reason and human experience would carry them, the whole purpose of the presumption of innocence would be balked. For of the men who are actually brought up for trial, probably the large majority are guilty.”); id. at 188 (the presumption in favor of the defendant is a “maxim of policy and practical sense; it is not founded on any notion the defendants generally are [factually] free from blame.”).
34 Laufer, supra, at 331-32 (emphasis added).
35 Thayer, supra, at 189.
36 See Thayer, at 196; George P. Fletcher, Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases, 77 Yale L. J. 880 (1967-1968) (arguing that the presumption of innocence and the requirement of proof “beyond a reasonable doubt” are historically and philosophically distinct).
37 See, e.g., Speiser v. Randall, 357 U.S. 513, 526 (1958) (hold- ing, in civil tax-enforcement proceeding, that “[d]ue process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence and convincing the factfinder of his guilt”).
38 Thayer, supra, at 189 (quoting 16 Records of Massachusetts, III., 434). See generally P. Thomas, Revolution in America: Britain and the Colonies, 1763-1776 at 67 (1992); David S. Lovejoy, Rights Imply Equality: The Case Against Admiralty Jurisdiction in America, 1764-1776, 16 Wm. & Mary Q. 459 (1959); C. Ubbelohde, The Vice-Admiralty Courts and the American Revolution 126-42, 154-58 (1960).
39 U.S. v. Gooding, 12 Wheat. 460, 471 (1827) (Story, J.). Other decisions suggest that the presumption of innocence has always been part of the American justice system. See, e.g., Hopt v. Utah, 120 U.S. 430, 439 (1887) (approving jury instruction adopted by lower court stating that “the law presumes the defendant innocent until proven guilty beyond a reasonable doubt”); Lilienthal’s Tobacco v. United States, 97 U.S. 237, 266 (1877) (“[I]n criminal trials the party accused is entitled to the legal presumption in favor of innocence, which, in doubtful cases, is always sufficient to turn the scale in his favor.”); see also Leland v. Oregon, 343 U.S.790, 802-03 (1952) (“[F]rom the time that the law which we have inherited has emerged from dark and barbaric times, the conception of justice which has dominated our criminal law has refused to put an accused at the hazard of punishment if he fails to re- move every reasonable doubt of his innocence”; rather, it is “the duty of the Government to establish his guilt,” a notion “basic in our law and rightly one of the boasts of a free society [and] a requirement and a safeguard of due process of law”) (Frankfurter, J., dissenting), cited with approval by In re Winship, 397 U.S. 358, 362 (1970).
40 156 U.S. 432, 453 (1895).
41 397 U.S. 358 (1970).
42 397 U.S. 358, 363 (1970) (observing that the reasonable doubt standard “provides concrete substance for the presumption of innocence”).
43 425 U.S. 501, 503 (1976) (Burger, C.J.).
44 436 U.S. 478, 486 n.13 (1978)
45 319 U.S. 463, 469 (1943)
46 241 U.S. 79, 86 (1916) (Holmes, J.), cited with approval by Patterson v. New York, 432 U.S. 197, 209 (1977)
The Presumption of Innocence above is extracted from the Brief of Amici Curiae by The Cato Institute and the Institute for Justice in Nelson v. Colorado, 581 U. S.15–1256 (2017).