“To accuse is to be believed.”
The “MeToo” movement did not proclaim this, but the ruthless Russian dictator Josef Stalin did. Under this banner in the 1930s, he executed more than half his army’s generals in a series of sensational “show trials.”
We don’t do this in America. Under our Constitution, we have crafted a set of democratic principles as safeguards against our succumbing to a dictatorship: a federal system of government whereby power is split between a national government and the 50 separate states; a national government, in turn, of three equal branches that check each other through overlapping jurisdictions; and a separation of church and state whereby no one religion receives official government sponsorship, thereby enabling all religions the right of “free exercise.”
Pertinent to Stalin — and to the recent congressional hearings on the Supreme Court nomination of Judge Brett Kavanaugh — our Constitution protects individual citizens from arbitrary overreaches of power by the state against them, balanced by the state’s duty to keep these same individuals out of the clutches of mobs.
Hence, unlike the Middle Ages, there are no official inquisitions today in which the mere accusation of heresy forces the accused to prove his innocence against charges often not even understood. Back then, failure to confess usually triggered torture, whose usual success ensured that the helplessly accused would be released to the tender mercies of dutifully aroused mobs.
Our constitutional framers sought to guarantee that neither dictatorial government nor medieval mobs would arise in our society by enshrining a Bill of Rights as the first 10 amendments to our Constitution. The Fifth Amendment guarantees the right against self-incrimination (no more confessions forced by torture); the Fourth Amendment against unreasonable searches and seizures (no breaking down doors in the middle of the night); and as the crowning capstone of these guarantees, the Seventh Amendment states that all findings of guilt or innocence in any American court shall be “according to the rules of common law.”
There are two bedrock features to the term, “common law.” The first is the right to an initial presumption of innocence of anyone accused of a crime. This presumption goes back at least to the sixth century AD legal code of the Emperor Justinian that declared the “Proof lies on him who asserts, not on him who denies.” The more modern phrase of this principle was not etched into American law until an 1894 Supreme Court decision overturned a lower court conviction because the judge had failed to instruct the jury that the accused must be “presumed innocent until proven guilty.” The second is that the proof of guilt by the accuser, whether by the state or an individual, must be established “beyond reasonable doubt.”
Taken together, all these protections preserve the democratic freedoms of individual citizens against any rise of an arbitrary or authoritarian government.
Despite these limitations to the reach of government, the same Bill of Rights requires the state to protect individual citizens from mobs that, enflamed by suspicions, march the merely accused to be tarred and feathered, burned at the stake or even lynched.
The Seventh Amendment, cited earlier, also guarantees to any citizen the right to a trial by jury of fellow citizens selected apart from the mobs. Jury trials are held out of public view (that is, not televised on national TV) where the presumption of innocence protects the reputation of the accused until a judgment of guilt or innocence is finally reached — and the public then notified.
In the case of Kavanaugh, the minute Christine Blasey Ford accused him with the serious crime of attempted rape, he was entitled to all the constitutional protections outlined above because the Judiciary Committee hearing, in effect, had become a trial. For all the furor that reverberated around the country in this nearing now turned trial, all of the investigations and testimonies failed to produce any corroboration to Ford’s accusation, thereby making it clear that, however compelling her testimony itself, reasonable doubts remained — leaving intact Kavanaugh’s common-law presumption of innocence.
Despite this presumption, the problem lay with the mob. The mob effect was enabled by keeping the hearing public, even after Ford’s accusation. Naturally, any accusation of this nature provokes suspicion. Predictably, the media seized on the morsels of red meat, and fed them to the mobs.
At least for some of the judge’s opponents, the hearing soon became less of an investigation into the guilt or innocence to the accusation, and more of an operation to “delay and destroy” the judge’s nomination. What occurred was a public display of the disintegration of the protections provided by the Bill of Rights for Kavanaugh — and a dangerous travesty against the Constitution itself.
All of this could have been avoided if the committee had gone into executive (closed) session the minute Ford made her criminal accusation, thereby granting Kavanaugh the effective right to a trial by jury, and sparing Ford from the personal trauma of her public testimony. Someone owes the country an explanation.