Overinclusivity, Liberty, and the Fallacy of Safety


Overinclusive restrictions on liberty often punish innocence and exacerbate the problems that they attempt to cure.

John Adams, a defense attorney, Constitutional scholar, and one of the drafters of the Declaration of Independence once famously said, “It is more important that innocence should be protected, than it is, that guilt be punished.” This was, fundamentally, an expansion on the jurist William Blackstone’s formulation that “[i]t is better that ten guilty persons escape than that one innocent suffer.” Such a statement highlights that, first, even governments do not possess the power to reveal all information and, second, that there is no moral authority to restrict liberty without knowledge of guilt. In our judicial and constitutional system we are instructed over and over to err on the side of liberty and restraint. More than instructed, this is an integral part of our sense of justice and government.

Some examples of incorporating this famous formulation include the presumption of innocence, the beyond a reasonable doubt standard, due process, trial by jury, and even the rules of presenting evidence to the court. These are all designed to prevent undue imprisonment based off unreliable information, even if it is true! It protects innocence even at the risk of letting the guilty go free.

The Bill of Rights adopts many of these very same protections. The Fourth, Fifth, Sixth and Fourteenth amendments are prominent examples. Each prevents infringement on due process and restricts government action as they all pertain to prosecutions or specifically reference due process. Due process prevents the government from enacting particular measures or methods, many of which have proven historically unreliable and have persecuted innocence, to find, prosecute, try and punish guilty parties.

The very idea that a guilty person can only be searched in their home and on their person with a warrant or reasonable cause is an outright admission that we would rather the guilty go free than burden the innocent. An illegal search results in the evidence being withheld in a case, often denying government key pieces of evidence. Without the prerequisite information to warrant intrusion the state has no grounds, legal or moral, to intrude. Considering that it is almost a certainty that there are individuals engaging in illegal behavior to varying degrees with evidence in their private abodes, it is quickly apparent that the restrictions on government in the Bill of Rights protect the innocent even while allowing guilt to go unpunished.

This is a balance between liberty, as a value, and the real limitations on information gathering and reliability. For example, once there is sufficient reliable knowledge that a person has committed a felonious offense, her liberty is at stake to one degree or another, warranted searches may be permitted as well as prosecutions. However, since liberty is so important we often err on the side of liberty over acquiring information. Part of this extends from moral implications regarding autonomy, authority, or natural rights. Part is a result of the unreliability of information and reason.

Another reason for this limitation is the natural tendency of governments to use their police power in combination with faulty information to attempt to eradicate bad acts. Some may argue that government can seek to both completely eradicate wrong doers while preserving innocence, however that is a misleading, access to the type of information necessary to eradicate wrong-doers is often hard to obtain and unreliable. To believe this is possible is to put undue faith in government.

In lawmaking protections are also imposed to protect innocence, particularly in the constitutional sense. Constitutional restraints prevent laws that are overreaching or may burden innocent parties. Laws that unfairly burden or even punish the innocent are often deemed overinclusive. This too is an adaptation of Blackstone’s formula, just on a different end of the legal system. Instead of trying crimes this focuses on appropriate lawmaking, and places standards on lawmakers.

Portions of the Bill of Rights also embrace Blackstone’s formula regarding the substance of the laws and implement prior restraints on government action. They prevent the government from restraining innocent citizens and depriving them of their rights. The First Amendment is an admission that no one person or entity can judge for certain that speech carries no value and thus gives broad freedom for speakers, even allowing distasteful, hateful, or even dangerous speech. Certainly carve-outs have been made, but the broad assumption remains, let the speaker speak for we’d rather the wrong thing be said than burden necessary speech.

As unpopular as this is in certain places the Second Amendment, to protect the right to bear arms, is a presumption in favor of preserving innocence. Perhaps if it were not intimately tied with the right of self-defense, it would be different. But as it is, the Second Amendment is a check against overinclusive law-making. Beyond that it is in itself a remedy against those with malevolent intentions. This right long precluded the Bill of Rights and prompted William Blackstone (yeah, same guy we’ve been talking about) to say the right to arms is “a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

When we engage in or permit overinclusive and overbearing lawmaking or dispose due process, we impact not just innocence, but the ability to preserve innocence. Unfortunately this often worsens the problem we originally sought to solve. Consider again free speech as upheld in the First Amendment. A common justification for free speech was articulated by the jurist Louis Brandeis, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” (emphasis added).

Restricting particular types of speech has rarely succeeded as an effective tool to create a peaceful society and has often bred political ignorance and worse.  Thus, one of the primary reasons to allow horrible, hateful, ignorant, or otherwise deplorable speech is that free speech and discourse is the best remedy for undesirable speech. This does not stand alone as the sole justification for free speech, but it illustrates the broader point: Overinclusive restrictions on liberty often punish innocence and exacerbate the problems that they attempt to cure.

Consider then, the more controversial gun rights upheld in the Second Amendment. Assuming the Second Amendment encompasses the right to self-defense, as outlined in Heller and McDonald,  (a position I take) it is important then to note that it is also a remedy for violence. The right to reasonable means of self-defense when restricted by government is, for all intents and purposes, a restriction on the innocent to protect themselves from the risk of harm by the guilty. The desire to prevent future crimes by restricting “gun rights” is a restriction on innocence, and on the right to preserve that innocence. It is highly unlikely such restriction will actually produce a safer society.

Last, consider our current airport security measures. Broad, overbearing searches have become common place as we travel on airplanes and enter airports. In order to board a plane we are subject to often time consuming and intrusive searches that often result in confiscations. Searches and precautions that are constitutionally questionable at best. However, some advocate, that this intrusion is worth the price for the added security, for those on the planes and on the ground.

However, this surrender does not yield the anticipated results. Recent studies have highlighted the failure of Homeland Security and TSA in preventing potential disaster. More importantly, it lulls travelers into a false sense of security, a phenomenon labeled “security theater.”  Though there may be some deterrence created by the appearance of security, it is likely insufficient for those determined to create harm.  The point remains that this is a burden on innocence, placed by government, and is prone to yield counterproductive results.

However, in freedom, we are all able to contribute to security. Glenn Reynolds, a law professor and USA Today contributor opined on this recently. In his article, which is an inspiring must read, he noted:

Bureaucracies have their place, but they don’t deal well with diffuse threats such as terrorism. By the time “first responders” get there, it’s usually too late. But there’s one group of “responders” who don’t have to go anywhere, and that’s the group already on the scene. In conventional analysis, and in the terrorists’ hopes, those people are called “victims.” But as the three Americans on that French train demonstrated, victimhood isn’t the only response.

Self-aware and engaged free citizens deal better with their overall care than a mislead effort to solve all of society’s ills.

Currently calls for “deportation squads” for illegal immigrants, gun control including restricting gun rights for those on “watchlists”, safe spaces, campus speech codes, over zealous and broad Title IX enforcement,  and burdensome economic regulations are all efforts to cure undesired problems with overinclusive intrusive solutions. Innocence is disregarded and burdened in pursuit of the guilty and to cure society’s ills. Little is improved while much is surrendered.

Calls for government to “do something,” particularly after tragedy, often leads to this type of fallacious decision making. Government, or any person really, does not have access to the type of information that can completely prevent tragedy or stop bad actors.  This is not to say nothing can be done, however when calls are made to surrender freedom, restrict personal rights, abandon due process, and enact general broad sweeping legislation, the result is a persecution of innocence, one that erroneously leads us to believe that we are safer as a result.

We have forgotten the conflict between punishing the guilty and persecuting the innocent. In our public outcry, in media, on campuses, in our legislating, we have often decided to disregard protection of innocence in order to prevent nefarious acts and wrong-doers. Thankfully many of these protections remain. We generally have due process rights (though some attempt to circumvent these rights, consider the supposed rape culture claims on college campuses), as well as freedom of speech, religion, to bear arms, and more. However, when tragedy arises we are often quick to disregard the safeguards created to protect innocence, those of rights and due process, in order to provide us with the delusion of safety and pursue the guilty.

James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to james@reasonedliberty.com or follow him on twitter @jcdevereaux1.

*This has been updated to remove an incomplete sentence, and fix a typo or two.

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