Embrace the burden of proof | American Enterprise Institute - AEI
"Writing in National Review (“Government Bears the Burden of Proof on Coronavirus Restrictions“), Andrew McCarthy counsels us to “embrace the burden of proof.” Here’s an excerpt (bold added): 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. ….. 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. …… 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. ….. 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."
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