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By Root 748 0

this principle would apply to individuals; why not government as well? If someone on the street walks up to you and randomly punches you in the face, is it fair to assume that he was acting in self-defense, and you should carry the burden of proving otherwise? Would your answer change if the puncher was a police officer instead of a private citizen? Recall that all individuals are subject to Natural Law, as are all governments, which are merely human inventions. To suggest that governments should somehow be treated differently from individuals in how Natural Law applies to them is to violate the truths that Natural Law transcends the temporal, and that the order of things governs those things themselves.

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Moreover, shouldn’t the burden of proving the justification of an action which is adverse to another always fall on whoever is trying to take that action? Why is it that you said in our hypothetical above that the puncher should have the burden of showing he was acting in self-defense? Because the person taking an action which is adverse to freedom always has the moral duty to justify his actions. It is the same moral imperative not to restrict your neighbor’s unfettered ability to make personal choices, like the choice to buy filled milk. To say otherwise is to assume that actions which are adverse to freedom are acceptable, and thus you are superior to your neighbor. Similarly, every government command restricts liberty. Government is, in essence, the negation of liberty. The burden of showing why government is justified cannot morally shift to the individual, the object of that restriction of liberty. To say otherwise is to say that the individual is inferior to the government, a myth which we have thoroughly rejected by now.

Another problem with the presumption of constitutionality arises where the evidence of unconstitutionality is of a “controversial and indeterminate” nature. In these cases the presumption will invariably win the day for the government. Thus, as a practical matter, the government is no longer bound by the Constitution unless evidence is clear and convincing. This has allowed government to circumvent constitutional constraints and encroach upon our liberties. Its justification? “You couldn’t prove otherwise.” Or, in other words, the government can violate your liberty if you cannot provide a legally sufficient answer to the question “Why not!?”

Such has been the case with nearly any restriction of economic liberties. In Williamson v. Lee Optical (1955), the Court upheld an Oklahoma statute which made it criminal for an optician to repair lenses without the patient first obtaining a new prescription every time. Did it matter that the statute had no ostensibly legitimate purpose, and was not even rationally related to any purpose at all (except to reward the lobbying efforts of Oklahoman optometrists)? Writing for the Court, Justice Douglas stated that “the law need not be in every respect logically consistent with its aims to be constitutional.” In another, less subtle word: NO.

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What is even more infuriating is the belittling view of our rights adopted by the Court, which necessarily accompanied this deference to the legislature (recall that government is the negation of liberty). What of our economic liberties? Those were viewed by the Court as vestiges of an outdated economic “school of thought” (laissez-faire). And in Plessy v. Ferguson (1896), good law until Brown v. Board of Education (1954), the Court chided that if African Americans felt humiliated by racial segregation, “it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” In sum, if we felt morally outraged by these statutes, it was purely the product of our own heterodox views, not the transgression of our constitutionally protected natural rights.

But, one may ask, doesn’t it cut the other way? That is, won’t there be a number of cases where the government was genuinely authorized by the Constitution to take some action, but it just couldn’t prove why