I've long thought I was pretty well informed about how "government" worked (and didn't), but Trump II has taught me things I never thought of, especially about how crucial custom and precedent are to keep things working.
My big fear at this point is that when we get through this -- we *will* get through this -- mostly well intentioned people will try to fix all the broken parts but their efforts will probably make things worse. Because meticulously drafted, written-down laws can't substitute for essential customs that most of us are willing to abide by.
Susanna, you're right. People in power will want to purport to "fix" things. Part of the reason they'll want to 'fix" things is that they will want the rest of us to think that they didn't plainly fail to see, understand or use the legal means that already exist to oppose the misconduct of people like Trump and the people using him and supporting him.
We see people who should know better saying things like "the framers (of our Constitution) never anticipated" or "couldn't foresee" the kinds of things we're experiencing. But they clearly did foresee those things, and they designed our Constitution to enable us to prevent and remedy the problems we're experiencing.
In The Federalist No. 1, Alexander Hamilton warned people about people like Trump and those who are using him or supporting him:
"a dangerous ambition [even] more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."
The DOJ lawyers lie indiscriminately, because they know that when these cases reach the Supreme Court, which most of them will, they’ll be rubber stamped by a cooperative SCOTUS majority.
Lisa, I "liked" your post. But it perpetuates an egregious abuse of the concepts relevant to the presumptions you addressed. It is contrary to our Constitution (and even anti-constitutional) to teach people that any such presumption favors our public servants merely because they are public officials.
Generations of Judges, DOJ attorneys and commentators have misled Americans to believe that a "presumption of regularity" or "presumption of good faith" or "presumption of constitutionality" applies generally to the actions of our public servants. In fact, many judges and DOJ attorneys know that any general use of any such presumption is blatantly counter-constitutional.
Such presumptions (such blind trust) are no better than the unconstitutional "establishment of religion" (forbidden by the First Amendment). Blind faith in public servants merely replaces priests with public officials. That makes absolutely no sense as a general rule. In fact, James Madison emphasized that only fools would blindly trust our public servants not to abuse power:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
The presumptions above have a very limited legitimate scope. They are (and must be) limited to litigation in a particular context. The presumptions above make sense legally only as a mere corollary of a particular legal burden. A legal presumption favoring one party always must be paired with a legal burden that the other party must bear. Stating a legal presumption in court proceedings is simply another way of stating a legal burden of proof or a legal burden of production of evidence. Nothing more.
Justice Kagan's dissent in Alexander v. South Carolina State Conference of the NAACP in 2024 also explained how presumptions (in litigation) must be paired with a particular burden (in litigation).
The classic example of a presumption paired with a burden is in criminal law. Everyone knows of this presumption, and it highlights that the government does not and should not always benefit from any presumption that government employees acted in "good faith or with "regularity" or did not violate our Constitution. In a criminal case, the government always must prove every material fact establishing guilt beyond a reasonable doubt. The corollary is that the defendant enjoys the presumption of innocence. There is no presumption favoring the government.
Federal law (Rule 301. Presumptions in Civil Cases Generally) provides another important example. It emphasizes that the presumption does not apply to any public official merely because he is part of "the government." The rule in ANY civil litigation is that ANY "party against whom a presumption is directed has the burden of producing evidence to rebut the presumption." In most cases the plaintiff must bear the burden of proof regardless of whether the defendant is the government or a private entity.
In some cases, however, e.g., under the Freedom of Information Act (FOIA) federal law (FOIA) says the government must bear the burden of proof, so the presumption must be that the government did NOT act in good faith. The clear and deliberate violation of FOIA and federal rules of procedure and evidence by federal judges and DOJ attorneys in FOIA cases show why it's harmful to perpetuate the misrepresentation that "the federal courts should presume" in all cases "that government employees have properly discharged their official duties" so "the default is presuming that government employees are undertaking their duties in a lawful fashion and not lying to the court about them." Giving the government the benefit of a "presumption of good faith" in FOIA cases is clearly contrary to federal law and our Constitution. Despite the clear requirements of a governing federal statute (FOIA) and federal rules of procedure and evidence, and emphasis in multiple SCOTUS opinions that in FOIA cases, the government cannot benefit from any "presumption of good faith," many judges and DOJ attorneys lie and misrepresent that government employees who sign a declaration in FOIA cases are entitled to a "presumption of good faith" merely because they are government employees.
Any general pretense (outside of the particular legal context, above) of a "presumption of regularity" or "presumption of good faith" or "presumption of constitutionality" is a pernicious anti-constitutional deception. No such presumption ever did (legitimately) apply as a general rule to any public servant. Even SCOTUS unanimously emphasized the reason.
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) SCOTUS unanimously emphasized the following to discuss the true meaning of the plain text of our Constitution. Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at levels.”
One vital reason that no presumption above applies generally (outside of litigation when the other party must bear an evidentiary burden) is that “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” (by the people who founded this nation and wrote and ratified our Constitution and our Bill of Rights) to be “the only effectual guardian of every” American “right.”
The “citizenry is the final judge of the proper conduct of public business.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975). Alexander Hamilton similarly emphasized that “[t]he two greatest securities” that “the people” have “for the faithful exercise of any delegated power” are “the restraints” imposed by “public opinion” and the public’s “opportunity of discovering with facility and clearness [official] misconduct” to facilitate officials’ “removal from office” or “punishment.” Federalist No. 70 (https://guides.loc.gov/federalist-papers/text-61-70#s-lg-box-wrapper-25493457).
The foregoing are the reasons that our Constitution's First Amendment expressly secures "the freedom of speech" and 'press" and "the right of the people" to "assemble" to secure our self-government.
I've long thought I was pretty well informed about how "government" worked (and didn't), but Trump II has taught me things I never thought of, especially about how crucial custom and precedent are to keep things working.
My big fear at this point is that when we get through this -- we *will* get through this -- mostly well intentioned people will try to fix all the broken parts but their efforts will probably make things worse. Because meticulously drafted, written-down laws can't substitute for essential customs that most of us are willing to abide by.
Susanna, you're right. People in power will want to purport to "fix" things. Part of the reason they'll want to 'fix" things is that they will want the rest of us to think that they didn't plainly fail to see, understand or use the legal means that already exist to oppose the misconduct of people like Trump and the people using him and supporting him.
We see people who should know better saying things like "the framers (of our Constitution) never anticipated" or "couldn't foresee" the kinds of things we're experiencing. But they clearly did foresee those things, and they designed our Constitution to enable us to prevent and remedy the problems we're experiencing.
In The Federalist No. 1, Alexander Hamilton warned people about people like Trump and those who are using him or supporting him:
"a dangerous ambition [even] more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants."
"The best lack all conviction,
While the worst are full of passionate intensity."
And small brains, bloated with the presumed blessing of Jesus.
Press on to commit atrocities under the cloak of a religious imperative
The DOJ lawyers lie indiscriminately, because they know that when these cases reach the Supreme Court, which most of them will, they’ll be rubber stamped by a cooperative SCOTUS majority.
Lisa, I "liked" your post. But it perpetuates an egregious abuse of the concepts relevant to the presumptions you addressed. It is contrary to our Constitution (and even anti-constitutional) to teach people that any such presumption favors our public servants merely because they are public officials.
Generations of Judges, DOJ attorneys and commentators have misled Americans to believe that a "presumption of regularity" or "presumption of good faith" or "presumption of constitutionality" applies generally to the actions of our public servants. In fact, many judges and DOJ attorneys know that any general use of any such presumption is blatantly counter-constitutional.
Such presumptions (such blind trust) are no better than the unconstitutional "establishment of religion" (forbidden by the First Amendment). Blind faith in public servants merely replaces priests with public officials. That makes absolutely no sense as a general rule. In fact, James Madison emphasized that only fools would blindly trust our public servants not to abuse power:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."
The presumptions above have a very limited legitimate scope. They are (and must be) limited to litigation in a particular context. The presumptions above make sense legally only as a mere corollary of a particular legal burden. A legal presumption favoring one party always must be paired with a legal burden that the other party must bear. Stating a legal presumption in court proceedings is simply another way of stating a legal burden of proof or a legal burden of production of evidence. Nothing more.
Justice Kagan's dissent in Alexander v. South Carolina State Conference of the NAACP in 2024 also explained how presumptions (in litigation) must be paired with a particular burden (in litigation).
The classic example of a presumption paired with a burden is in criminal law. Everyone knows of this presumption, and it highlights that the government does not and should not always benefit from any presumption that government employees acted in "good faith or with "regularity" or did not violate our Constitution. In a criminal case, the government always must prove every material fact establishing guilt beyond a reasonable doubt. The corollary is that the defendant enjoys the presumption of innocence. There is no presumption favoring the government.
Federal law (Rule 301. Presumptions in Civil Cases Generally) provides another important example. It emphasizes that the presumption does not apply to any public official merely because he is part of "the government." The rule in ANY civil litigation is that ANY "party against whom a presumption is directed has the burden of producing evidence to rebut the presumption." In most cases the plaintiff must bear the burden of proof regardless of whether the defendant is the government or a private entity.
In some cases, however, e.g., under the Freedom of Information Act (FOIA) federal law (FOIA) says the government must bear the burden of proof, so the presumption must be that the government did NOT act in good faith. The clear and deliberate violation of FOIA and federal rules of procedure and evidence by federal judges and DOJ attorneys in FOIA cases show why it's harmful to perpetuate the misrepresentation that "the federal courts should presume" in all cases "that government employees have properly discharged their official duties" so "the default is presuming that government employees are undertaking their duties in a lawful fashion and not lying to the court about them." Giving the government the benefit of a "presumption of good faith" in FOIA cases is clearly contrary to federal law and our Constitution. Despite the clear requirements of a governing federal statute (FOIA) and federal rules of procedure and evidence, and emphasis in multiple SCOTUS opinions that in FOIA cases, the government cannot benefit from any "presumption of good faith," many judges and DOJ attorneys lie and misrepresent that government employees who sign a declaration in FOIA cases are entitled to a "presumption of good faith" merely because they are government employees.
Any general pretense (outside of the particular legal context, above) of a "presumption of regularity" or "presumption of good faith" or "presumption of constitutionality" is a pernicious anti-constitutional deception. No such presumption ever did (legitimately) apply as a general rule to any public servant. Even SCOTUS unanimously emphasized the reason.
In New York Times Co. v. Sullivan, 376 U.S. 254 (1964) SCOTUS unanimously emphasized the following to discuss the true meaning of the plain text of our Constitution. Our “Constitution created a [republican] form of government under which ‘The people, not the government, possess the absolute sovereignty.’ [Our Constitution] dispersed power” in many ways precisely because “of the people’s” extreme “distrust of concentrated power, and of power itself at levels.”
One vital reason that no presumption above applies generally (outside of litigation when the other party must bear an evidentiary burden) is that “the right of freely examining public characters and measures, and of free communication among the people thereon” is that those particular powers were “deemed” (by the people who founded this nation and wrote and ratified our Constitution and our Bill of Rights) to be “the only effectual guardian of every” American “right.”
The “citizenry is the final judge of the proper conduct of public business.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 495 (1975). Alexander Hamilton similarly emphasized that “[t]he two greatest securities” that “the people” have “for the faithful exercise of any delegated power” are “the restraints” imposed by “public opinion” and the public’s “opportunity of discovering with facility and clearness [official] misconduct” to facilitate officials’ “removal from office” or “punishment.” Federalist No. 70 (https://guides.loc.gov/federalist-papers/text-61-70#s-lg-box-wrapper-25493457).
The foregoing are the reasons that our Constitution's First Amendment expressly secures "the freedom of speech" and 'press" and "the right of the people" to "assemble" to secure our self-government.