One of the basic principles of our system of justice is the presumption of innocence. It is expressed in the Latin phrase ei incumbit probatio qui dicit, non qui negat, which translates, “the burden of proof is on the one who declares, not on one who denies.”
The origin of the principle dates back to the 6thcentury BC in the Justinian Code, the writings of Eastern Roman Emperor Justinian I. British Common Law carried forth this principle and it is one of the bedrock principles of American Jurisprudence.
It is also included in the United Nations’ Universal Declaration of Human Rights, in Islamic law, in Russian law, and in Chinese Law. Whether a democracy, a republic, a constitutional monarchy, a Caliphate or a communist regime, this principle is found. Even the prophet Mohammad declared it was needed to prevent punishment based on doubtful evidence.
In Orwell’s Nineteen Eighty-Four, however, the totalitarian regime of Oceania does away with this protection. There is no longer due process, free inquiry, rules of evidence and cross examination, much less a presumption of innocence until proven guilty. If the state says you are guilty, you are guilty, the facts be damned. Victor David Hanson, writing for theNational Review, says we are living Nineteen Eighty-fourin the Kavanaugh confirmation process.
Senator Diane Feinstein held the accusations of Professor Christine Blasely Ford for months, revealing it only after it was evident that the only thing that could stop this nomination was a bombshell accusation that could not be disproven. Then, sounding like Tail-Gunner Joe McCarthy of so many decades ago, who would famously declare, “I have in my hand the name …”, she unleashed it to try and derail or at least delay the nomination.
No presumption of innocence is found here. No evidence, no details; not needed. Ford, through her lawyer said she would bring her testimony to the committee only if Kavanaugh testifies first, that he is not in the room when she testifies, and that the Republicans themselves cross examine her, not a hired, female attorney who is an expert on sexual assault. In today’s court of public opinion, the image of the male Republican members of the Judiciary Committee grilling this poor, defenseless woman equals victory, the facts be damned.
How ironic. This is the United States Senate Committee on the Judiciary, charged with overseeing the Department of Justice, which is responsible to enforce the Constitution of the United States and the laws passed by Congress. This Committee is also charged to “advise and consent” on the nominations of Federal judges, who are responsible to uphold the rights and principles as presented in the Constitution of the United States. Yet, in the United States Senate Committee on the Judiciary they will not recognize a basic principle of jurisprudence – the presumption of innocence. A credible accusation is all that is needed. Guilty as accused.
If this is successful, then Victor David Hanson of the National Reviewis right. We are living the Orwellian Nineteen Eighty-Four. God help us.