A presumption of liberty
Give me liberty or give me death
Live free or die
This is what America is supposed to be about
This is the original understanding
Common sense in common wealth
An equilibrium reached by men who had achieved personal liberty and saw the benefits of sharing in community
Framing a constitution to capture in words the very best of their intelligence expressing all that’s good in life in common without sacrificing their essential personal liberty
Freedom with responsibility makes common sense
What do we human have in common
I say common sense
Imagine ourselves as free men and women who sit together to decide what is best for us in common
Common sense says we agree first and foremost that we will not give up what is most precious to us. liberty. At the least we can agree to maintain a presumption of liberty as we thrust ourselves forward into the developing thicket of statutory Law. Understand, we are gathering to create a government which will make statutes. Statutes are made by men for citizens to follow, not to lead. Can we agree then that as we go forward into the thicket of the statutes our government will generate in our future that we proceed with a presumption of liberty against arbitrary override by whim special interest reflected in exercise of legislative and executive power.
Let us articulate as best WE can this presumption in broad strokes of freedom of religion and speech and trial by jury drawn from among us, expressing our underlying commitment to liberty in our own fundamental rules here to be made. Let us leave a presumption of liberty to the future to stand as a beacon above all other presumptions our government may make after this one. This is our foundation and our goal, our original understanding and our polestar to wisdom in the future.
The essential constitutional role of the american jury is to preserve our liberty. To perform this function the jury must be informed of its function, its power, and its responsibility.
the judiciary quite rightly presumes reason and requires only rationality in legislative statutes which do not tread on explicitly articulated constitutional rights. to do otherwise would assert judicial prerogative into legislative sphere.
this means that the judiciary provides no check on legislative statutes which though rational lack wisdom yet are backed by special interest. such statutes intrude upon the liberty of citizens in a manner which the authority of judges does not check. the check for that abuse of citizen liberty in our constitutional system is trial by jury.
A JURY OF OUR PEERS
a jury of our peers was to have been our protection, the gateway through which legislative edict would have to march before taking a citizen’s liberty away.
from the vantage of the people, and the subset of us which is the jury in a criminal case, our trial system frames a question to us which we answer with our verdict. the indictment frames a question in terms of the violation of a statute.
what is the question to which we want an answer before we see a man’s liberty taken away
(a) did he violate a legislative statute
(b) did he do something covered by a legislative statute that is wrong
(c) did he do something wrong
balance is the essence of our constitutional ideal
a massachusetts referendum asserts the legality of possession of small amounts of marijuana
this is an assertion of legality
we the people are the keepers of our liberty
we the people decide whether the legalisms of the law intrude too deeply upon us
we need neither judges and nor legal training to tell us that our liberty is infringed by arbitrary law
this is not a judgment that requires legal education
all the logic of education is on the other side
on this side is the justice in our hearts
it requires our willingness to speak truth from the justice in our hearts
verdict – speak truth – guilty or not guilty