The presumption of liberty is a rule for deciding who bears the burden of proof when a legislature restricts an individual’s freedom. Under it, the individual whose liberty is restricted gets the benefit of the doubt, and the government must come forward with evidence or argument that its action is within its proper powers. It is contrasted with a presumption of constitutionality, under which the citizen must rebut the assumption that a statute is valid.
The three approaches to judicial review
Constitutional law professor Randy Barnett, appearing on the show during the confirmation fight over Amy Coney Barrett, set out what he described as three approaches courts have taken when deciding whether legislation is within the power of a legislature to enact — whether within the enumerated powers of Congress or within what he called the state’s police power. The question, he said, is how much judges defer to the judgment of the legislature that a statute is within its power, and how much they defer to the decision of the individual citizen to exercise the liberty the statute restricts. Barnett framed it as a question of who gets the benefit of the doubt: the legislature when it restricts the liberties of “We the People,” or the people themselves. Amy Coney Barrett on Trial (2020)
The first approach Barnett named is the presumption of liberty — a presumption in behalf of liberty — under which the legislature may still rebut the presumption by presenting evidence or argument. The second is a presumption of constitutionality, under which the citizen must come in and rebut the presumption with evidence and argument. The third, which Barnett said the courts have taken in many cases and which he said Judge Barrett defends under certain circumstances, presumes laws constitutional and does not allow citizens to contest that presumption: as long as any reasonable person would think the law reasonable, and as long as any conceivable rational basis for it can be identified, the law stands. Barnett noted that under this approach it does not matter whether the legislature or the executive branch offered the reason, because the judges may come up with the reasons themselves. It is over this third approach, he said, that he and Judge Barrett disagree. Amy Coney Barrett on Trial (2020)
The presumption in a written constitution
Timothy Sandefur, discussing a libertarian rewrite of the American Constitution produced at the invitation of the National Constitution Center, described a constitutional presumption in the following terms: all persons are presumptively at liberty to enjoy and use their life, liberty, or property in their best judgment, and whenever the federal, state, or tribal government infringes on this right, the courts shall determine whether the government has constitutional authority for its action and a genuine justification for its restriction. The idea, he said, is that people are born free and government is legitimate only where it can give a good reason for taking away their freedom. He characterized this as the opposite of what he called the progressive Constitution, which he said holds that you are not free unless you can persuade the public to give you freedom through a democratic vote. Timothy Sandefur on The Libertarian Constitution (2021)
Sandefur applied the presumption to occupational licensing, describing licensing as a way of saying that the government owns your rights and will give them back to you if it thinks that is legitimate. He allowed that there are rare circumstances where licensing is appropriate — his example was that you do not want somebody building a nuclear reactor without having beforehand learned how to do that and gotten a degree in nuclear physics — but said licensing requirements get overused and expanded to the point where existing businesses persuade the government to impose a regime that makes it impossible or illegal to compete against them. Under the provision he discussed, a licensing requirement so burdensome or so unjustifiable in terms of public safety that it deprives you of the ability to earn a living without good reason would be unconstitutional. He also said a state that made it illegal for people to live together without a marriage license would infringe the right to live a peaceful life of one’s choosing, and noted that licensing laws were used to prohibit intermarriage between the races in the years before the Supreme Court found that unconstitutional in the 1960s. Timothy Sandefur on The Libertarian Constitution (2021)
Subjective value and the externality exception
Economist Ryan Bourne, discussing pandemic policy, grounded the presumption in the idea that value is subjective — an insight he traced to the marginal revolution in the 19th century. Because what is of high worth or utility differs from person to person and depends on time, place and circumstance, he said, the starting point should always be that human beings deciding what is best for themselves will tend to produce better results than top-down planning, unless there is some reason why their activity affects other people. Ryan Bourne on the Economic Fallacies of the Pandemic Policymakers (2021)
Bourne identified COVID-19 as a case that presented a different scenario, because early on it was not known who was infected or who was most susceptible, so one person’s behavior could have big consequences for others — what economists call an externality problem, meaning a third-party effect of decisions for which it is very difficult to think of a means of compensating those affected. He observed that for relatively low-risk diseases such as colds and flu, society has set the default that people should live their lives as normal and take whatever precautions they want, and that COVID was much deadlier than flu across the population as a whole before the vaccine. He said the line at which policymakers flip from a right to a normal life to the need for collective action is blurry, and asked whether the threshold is a disease five times worse than flu, three times, or two times, saying he did not think society had come to grips with what threshold would justify treating a future disease like COVID. Once vaccines had been available for a number of months, he said, the default setting should entirely retreat back to treating the disease as colds and flus are treated, with any public health measures focused on protecting those who refuse or cannot be vaccinated. Ryan Bourne on the Economic Fallacies of the Pandemic Policymakers (2021)
Across episodes: the burden of proof and its limits
The presumption of liberty recurs in all three episodes, but the excerpts show it doing different work rather than developing along a single line. Barnett treats it as one of three possible rules of judicial review and locates the disagreement in whether a citizen may rebut a presumption of constitutionality at all; Sandefur states it as a clause of a proposed constitution and extends it to licensing; Bourne accepts it as the default for subjective-value decisions but carves out externality problems, where he says the threshold for collective action is blurry. The later treatments do not revise the earlier one; they apply it to new subject matter.
What the sources do not cover
The excerpts do not state how any court has resolved a case under a presumption of liberty, nor which amendment or clause any decided case turned on. They do not give the text, section or ratification status of the proposed libertarian constitution beyond the presumption clause Sandefur reads aloud. Barnett’s account of the three approaches is not tied in the excerpts to any named decision, and the excerpts break off before he and Bob Zadek continue the discussion.