HANG ’EM HIGH?
It’s ‘Believe the Woman’ vs. the Presumption of Innocence—and Kavanaugh Is Caught in the Middle
Ben Franklin said it was better that 100 guilty men go free than one innocent man be punished. Can that honorable idea withstand the #MeToo era?
America is in turmoil, and norms and assumptions are being second-guessed. One such norm is the presumption of innocence—a principle the fate of which is (to some degree) tied to the fortunes of Supreme Court nominee Brett Kavanaugh.
It’s important to note how deeply embedded this idea is in the American psyche—and to what extremes early Americans were willing to go (at least, rhetorically) to preserve the concept.
In 1785, when Ben Franklin argued, "[t]hat it is better a hundred guilty persons should escape than one innocent person should suffer,” he was echoing an accepted truism that had existed for years. (John Adams made similar arguments when defending British soldiers after the Boston Massacre.)
But Franklin was actually paraphrasing Voltaire, who wrote in Zadig in 1748, “that ’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent.”
This principle is called “Blackstone’s Formulation,” named after Sir William Blackstone, who held that "It is better that ten guilty persons escape than that one innocent suffer.”
That was then, this is now. The presumption of innocence is among a growing list of values (like free speech on college campuses) that were, until fairly recently, deemed to be “liberal” ideas.
During the anti-Communism hysteria that swept the nation during the Joe McCarthy era, for example, Judge Learned Hand said: “I had rather take my chance that some traitors will escape detection than spread abroad a spirit of general suspicion and distrust, which accepts rumor and gossip in place of undismayed and unintimidated inquiry.”
Today, however, liberals do not seem so keen on the presumption of innocence—at least, not when it comes to men who are accused by women.
As Monica Hesse wrote in The Washington Post, “The alleged incident—decades old, lacking forensic evidence—exists in the uncomfortable, unknowable place that a tawdry Law & Order episode might have once dismissed as he said, she said.”
“Now,” Hesse continues, “it’s a test of what it looks like to believe women. And how we decide what we believe. It’s a test of whether, in the past year, we’ve learned anything at all.”
In other words, the lesson we are supposed to have learned is that, faced with a “decades old” alleged incident, we should always believe the accuser (so long as it’s a woman).
Note: Before you send me hate e-mails (you can reach me at [email protected]), I want to be clear about one very important caveat: Serving on the U.S. Supreme Court is an honor, not a birthright. The bar for excluding someone from this privilege is arguably much lower than the burden of proof required for convicting someone of a crime in a court of law. Having said that, let’s be honest about something else. As the aforementioned Monica Hesse piece makes clear, the mantra of the #MeToo movement is that you should believe women. This mantra precedes the Kavanaugh confirmation fight—and its premise could extend into other (possibly criminal) domains.
Indeed, the Kavanaugh confirmation battle has turned into something of a surrogate battle in this larger culture war between progressives and conservatives. And one of the big questions that is being litigated is whether this concept, espoused by Franklin and Adams and Voltaire (dead white dudes, admittedly), is just.
The truth is that I don’t know whether Kavanaugh is innocent or guilty, and—as I wrote on Friday—I found Dr. Ford’s testimony to be compelling and credible. Having said that, (so far) we have seen zero evidence to prove Brett Kavanaugh attempted to rape her 36 years ago.
And so, what do we do with Brett Kavanaugh?
Since the founding of our republic, we have (in principle, at least) advocated for the presumption of innocence. We haven’t always lived up to this ideal, of course, but it has been our stated standard. For the first time since our founding, there are serious questions about whether it even should be.
Make no mistake: These are competing values. They are mutually exclusive. You cannot simultaneously believe in the presumption of innocence and reflexively place the burden of proof on the accused.
At the risk of sounding hyperbolic, I say there’s something at stake here that is even bigger than a lifetime appointment to the United States Supreme Court. We may be witnessing the moment when we surrender what has been a fundamental American principle from day one. The potential consequences of this decision could outlast us all.