The presumption of innocence is a cornerstone of the American criminal justice system. It is also a cornerstone of the American republican ideal. It is the fundamental difference between being a citizen and being a subject. A citizen has rights that are not subject to abridgement even if a majority wills it; rights that exist by “natural law” and outside the purview of any state. A subject’s rights, if any, are conditional upon the will and whim of the state and the powers that control it.
In recent decades, we have surrendered more and more of our prerogatives in the name of safety and security. In the name of our own protection, we have come to accept being treated as incipient or actual criminals.
Recently, I read cri de coeur from a man who has had his access to pain medication restricted in the name of cracking down on the opiod crisis. He is not an addict and does not abuse his relatively benign pain meds (Tramadol). But because others do, he must jump through bureaucratic and legal hoops when what he needs is simply to reduce his pain. He has done nothing wrong, yet he is punished for the wrongdoings of others.
This is the same principle applied in recent gun control initiatives in Oregon: The response to heinous crimes is to turn the law‐abiding into criminals by confiscatory fiat. It is the same principle that leads the regulatory state to assume that a guardian is at least potentially ripping off his ward, requiring evidence that this is not so, rather than having the burden of proving that it IS so.
The impulse to surveil and to regulate is not by any means confined to government. Employers keep their employees under surveillance and impose intrusive drug testing even for substances that are legal in their states. Social media companies sweep up our data as assiduously as any national security state. We stare at our screens and the screens stare back.
It would be foolish to oppose any all regulation that seeks to head off trouble before it happens. We need to know that our food, air and water are clean and safe. And regulation is the only tool we have to restrain the vast intrusions upon our privacy that come with the digital age. But the regulatory hand should be as light as possible, especially upon the individual citizen, and should carry a heavy burden of proof that any regulation is necessary, proportional and actually effective. Left unaccountable, regulators will always seek to further and further regulate, as the hammer seeks the nail.
What is most alarming is the degree to which we are willing to acquiesce to being treated as suspects — and subjects. The words “if you’re not doing anything wrong, you don’t have anything to worry about” should never pass the lips of an American citizen, whether the matter at hand is national security or drug policy or simply walking down the street. As long as you’re being treated as a subject rather than a citizen, you’ve got plenty to worry about every day.