There is never a good time for a pandemic, but an election year in a deeply divided country is an especially bad time. Everything is politicized. I would add that even science is politicized, but that would suggest that this was something new. Sadly, we’re inured to the politicization of science, thanks to climate change and to the centrality of government funding to academic endeavors. Research resources are diverted toward our political conflicts, rather than being freely allocated where they could better advance the search for truth.
The politicization of science has ingrained in our political life something about which we ought to be highly skeptical: The argument from authority. It is doing extraordinary damage to the republic, through governmental responses — federal, state and municipal — to the coronavirus.
And it will keep doing damage unless and until we restore the burden of proof.
There is no doubt that governments have a compelling interest in public safety, which includes preventing the spread of a potentially deadly infectious disease. It is nevertheless the foundational conceit of the American republic that governments are created to secure the fundamental rights of a nation’s citizens — our rights to life, liberty, and the pursuit of happiness. Moreover, the legitimacy of government is dependent on the consent of the governed.
In the United States, authority is subordinate to liberty. Government is the servant, not the master.
In our society, the argument from authority should never be the final word, notwithstanding the progressive vision of government by bureaucracies of purportedly agenda-free experts.
This does not mean that expertise, in particular the mastery of science, is insignificant. It is critical. But it does not have declarative authority. Expertise is not right because it says so. It is there to help us, not order us. It has to compete. It has to convince. And unless it does, it should have no power to infringe on our liberties.
This is not a radical concept. No matter what anyone tells you, it is not a conservative-versus-liberal thing, not Republican-versus-Democrat or Trump-versus-Anti-Trump. It is a basic, indisputable fact. It plays out every day in the justice system, which we use to resolve many of society’s most significant controversies.
And that’s where the burden of proof comes in.
The justice system powerfully illustrates the same dynamic that is playing out with COVID-19 restrictions that have locked down economic and social life. Day after day, the system pits the government’s compelling interest in public safety against our most fundamental freedoms — liberty, property, and, in capital cases, life itself.
The argument from authority has no place in the justice system. We do not deprive an American of liberty just because highly experienced law-enforcement professionals explain that they are confident the law has been broken. We do not restrict movement and commerce, we do not impose fines and penalties, just because a respected scientist has a convincing theory — supported by carefully crafted models — about how the victim died, or about whether the suspect had the mental capacity to form criminal intent.
No. At every key juncture, we admonish the public and every participant in the system that the government bears the burden of proof. Accused Americans are presumed innocent. That is, they are presumed to remain entitled to their fundamental liberties. They do not need to prove their entitlement. The burden is wholly on the government to prove that liberty should be removed. And because nothing less than liberty is at stake, the burden is high — proof beyond a reasonable doubt. Only if the government presents proof, not speculation, in satisfaction of this burden can an accused American legitimately be deprived of liberty and property.
As science and technology advance, they play an ever larger role in the outcome of criminal and civil litigation. But you know what? We don’t call off the trial or suspend the burden of proof when a distinguished scientist — even someone as undeniably impressive as Dr. Deborah Birx or Dr. Anthony Fauci — authoritatively proclaims a scientific conclusion. Each side of the controversy, the public-safety side and the liberty side, gets to examine the scientists and even summon their own scientific witnesses — whose contrary assessments are also subjected to cross-examination.
And when all the testimony is in, we don’t leave the decision to a panel of experts. Determinations about our most fundamental concerns are left to ordinary Americans — much as determinations in the political realm are left to officials democratically accountable to ordinary Americans, not to anointed experts. These decisions, whether in court or in politics, are not dictated solely by the scientists’ views; scientific evidence is respectfully given its due, but it is weighed along with other matters of consequence.
In court, fact-finders are guided at every step of their deliberations by the burden of proof. Our abiding principle is that liberty may not be restricted unless the government first convinces us that it must be. Restrictions are not imposed just because a government official says they should be imposed.
Our justice system for resolving disputes and balancing essential interests is the envy of the world. The American people would revolt if someone tried to change it. Yet, somehow, when we transition out of the courthouse to the variety of other settings in which government officials presume to restrict our rights, we seem to forget these transcendent principles.
Attorney General Bill Barr did the nation and the cause of civil liberties a real service over these last days by mobilizing the Justice Department on the side of freedom. The AG’s admonition came down to the burden of proof: It is not an American’s burden to prove that his or her job is “essential” rather than “non-essential,” as some government official subjectively defines those terms; it is the government’s burden to prove that the job in question cannot be performed safely under any conditions.
The problem with the counsel government officials are getting from medical doctors and other scientists is not that it is bad advice. It is that government officials seem to think they have the power to make it dispositive advice without first demonstrating to us that it is necessary, that less Draconian restraints on liberty will not do.
This is not the way it’s supposed to work.
Many times in my years as a prosecutor, I had to seek wiretap warrants. It was not enough for me to tell the judge that I was a highly experienced criminal-law expert with years of investigating organized crime and racketeering enterprises under my belt. Indeed, my expertise never entered into the discussion.
Instead, because I was a government official seeking to infringe on my target’s precious right to privacy, constitutional principles codified in statutory law imposed on the government the burden of proof on two key questions: (a) did the evidence establish probable cause that a crime was being committed, and (b) was there no less intrusive way of getting incriminating evidence than monitoring the target’s private conversations? I had to satisfy the court that there was incriminating evidence that the government was entitled to obtain, and that there was really no less extreme tactic available that would allow the government to obtain that evidence while showing deference to the target’s fundamental rights.
It is not enough for government officials, in reliance on experts, to tell you that they have very good public-health reasons to lock you down, remove your livelihood, deny your children access to education, and blockade your family from the use of outdoor spaces. Again, there is no question that government has a compelling interest in public safety. Nevertheless, before it restricts or denies our fundamental liberties, it has the burden of showing that its proposed restrictions are necessary, that there are no more modest measures that could better balance public safety with our right to live freely.
This should not be a political issue. It is not politicized in court cases — everyone accepts that the rules are the rules. On that score, let’s remember that a significant majority of people charged in criminal cases are convicted, even though liberty is our default preference and the government bears the burden of proof. The rules are a boon for society. Because the government knows it can only succeed by persuading us, it works hard to marshal its evidence effectively. It does not presume to declare the case proved; it labors to prove the case. Because it does so, its restrictions on liberty, even when severe, enjoy broad public legitimacy.
No one wants to see infectious disease spread. No one wants to see the economy destroyed — and see all the attendant social, medical, and financial destruction that entails. We should not be in political combat over this. But we will be until we get the balance right. Government officials must grasp that they may not impose stifling restraints on liberty without convincing the public that these restraints are necessary, that no lesser restrictions will do, and that enforcement will not be arbitrary or discriminatory.
Embrace the burden of proof. If government does that, it will show respect for civil liberties, it will propose more sensible restrictions, it will exhibit awareness that it is not our ruler but our servant, and it will win broad support for safety measures that are truly essential.