The Constitution protects many valuable rights we often take for granted. The 6th Amendment guarantees a speedy trial by jury, with assistance of counsel. The 14th Amendment provides for due process of law which includes the presumption of innocence. You are innocent until proven guilty, a cornerstone of criminal law.
The Supreme Court recently held that Colorado may not require people whose convictions are overturned to prove they are innocent before they can recover any court fees or restitution they may have paid. The legal basis for requiring the payment of money was the conviction. But if the conviction is overturned, the presumption of innocence once again attaches, so people should not have to prove they are innocent to get their money back, the Court reasoned.
The Court weighed three considerations. First, there is a significant private interest in getting one’s money back. Second, the risk of a bad outcome under Colorado’s procedure was great because proving innocence is hard to do and the cost of doing so might be greater than the sum involved. Third, the governmental interest in keeping the money is low because the state really has no rightful claim to it. The third point seems weak and tautological to me, what lawyer’s call a ‘make-weight’ argument.
Notice that the presumption of innocence is not just for criminal cases. Colorado’s refund procedure was civil in nature. As the Court said, “[U]nder the Due Process Clause, [an individual] who has not been adjudged guilty of any crime may not be punished.” Even civilly.
So much for the twists and turns of the case, but don’t lose sight of the big picture: The purpose of government is to protect our rights. The Constitution plays an important role in doing just that. The presumption of innocence is foundational to our criminal justice system and we should be on guard against its erosion.
“We are in the midst of a college hoax epidemic, and it shows no signs of getting any better. Just last week at St. Olaf College, a racist note placed on a black student’s car was revealed as a hoax, written by someone who wanted to “draw attention to concerns about the campus climate.” At USC last month, someone hung a “no black people allowed” sign outside of a residence hall; the fellow who hung this reputable message turned out to be…a black person himself. At Indiana State University, a professor was arrested for “reporting phony anti-Islamic threats.” At the University of Michigan, a young woman revealed that she had lied about a pro-Trump hate crime and made up an attack on herself. At Capital University in February, a student admitted to fabricating a hate-filled note that was posted to his dorm’s door.”
More from the College Fix
The violent attempts to shut down free speech at UC Berkeley and Auburn University did not come out of nowhere. In 1965, the Left took a left turn towards authoritarianism. Herbert Marcuse, a committed Marxist, wrote an essay with the oxymoronic title “Repressive Tolerance” in which he advocated “the withdrawal of toleration of speech and assembly from groups and movements which promote aggressive policies, armament, chauvinism, discrimination on the grounds of race and religion, or which oppose the extension of public services, social security, medical care, etc.“ In other words, if the Left doesn’t agree with what you say, you can’t say it. Marcuse went on to advise restrictions on what universities can teach.
How do you repress your way to tolerance? George Orwell observed that the use of incongruent means ensures you will never reach your stated ends, but let’s play along with Marcuse. His problem is that most people have a ‘false consciousness’ inculcated by the ruling class and its values. The only way to get people’s heads’ straight, i.e., to agree with the hard Left, is to ban all other points of view so that people only get all Left all the time, in terms of ideas. “Liberating tolerance, then, would mean intolerance against movements from the Right…,” Marcuse went on to say.
Methods of intolerance used by today’s Thought Police include intimidation, disruption, and even violence. Hence, former Mizzou prof Melissa Click’s call that fateful day for “muscle” to “get this reporter out of here.”
Even if you agree with the Left’s policies, that is not the end of the inquiry. You have to go on and decide whether you are willing to use violence, if necessary, to shut everyone else up. Maybe so, but then you would have to come face-to-face with your own authoritarianism and barbarism.
Marcuse promises free speech in the long run, after all heads have been cracked, false consciousness scrubbed, human nature changed, and all toe the authoritarian Left’s party line. Good luck with that. Makes about as much sense as Marx’s promise that the state will ‘wither away’ after socialism progresses to communism. Name one communist dictator who ever gave up power willingly. Just one. Then ask yourself how likely it is that the authoritarian Left, if allowed to grip the reins of power, would ever restore free speech to anyone who wants to criticize their orthodoxy. Paradigm shifters and anyone interested in human progress need not apply.
There is a reason we have the Constitution – to keep a tiny group or even a majority from amassing that kind of power – and a reason we have the First Amendment – so you can generally say what you like without being silenced or coerced into saying things you don’t believe.
More here (“A New, Old Challenge” p. 5) and here.