In our system of government and law we hold to many principles in its execution. When it comes to criminal matters where there are penalties involving the loss of liberty if not life itself, we hold one to be above all else. It is better for the guilty to go free than for the innocent to be punished wrongfully.
This principle required that if there is to be an error in judgement that it be in favor of the least harm, that is, innocence. This is a reasonable principle. If there is a question of guilt or innocence then innocence is the proper finding.
Similarly we have enumerated rights and as citizens we have charged our government with protecting those rights. Those rights are as fundamental as our need to be protected from the power of the state gaining a conviction of the innocent. Thus it would appear equally prudent, when there comes a question as to a right or the extent of that right that there be a similar error in favor of that right.
Thus if there is a question of the right to free speech and the government's obligation to protect that right then it is clear the government itself, in light of its obligation to protect that right, is required to start with the assumption that the question must be decided in the favor of that right lacking overwhelming government interest an alternate interpretation.
Is this what we have? No, it is the opposite of what we have. The Supreme Court has held that if a person does not vigorously speak of a his rights at all points he has lost them. That is hardly erring on the side of the government's obligation to protect our specified rights.
In addition the sequence of the infringement of our rights has followed from a progression of exceedingly legalistic convolutions that only a lawyer could love. When the enumerated right is freedom from warrantless searches and seizures the courts have found it a challenge to refine what that really means. In cars it is down to the degree of what might be plain view, in or out of a bag, and whether or not that bag is properly sealed.
Were there error on the side of the protected right then all but waving the item out the car window would be protected. Such is not the form of our legal system.
Our legal system is on the side of meticulously defining via court precedent only the exact limits of our protections. There is no presumption that the rights exist. The presumption is that they were defined in the minds of the framers of the Constitution and must be refined by the courts.
This ignores on significant point. The Framers were of the mind of those who declared our independence and they held ...
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed,
The concept of government is clearly to protect the rights of men. This brings up a larger issue. That the same government charged with protecting those rights has assumed an adversarial role in in limiting those rights by intellectual mayhem. It has declined to fulfill its defensive roll in the protection of those rights.
I grant executing the law and defending rights at the same time is a difficult position. That is why the requirement to err on the side of the right BY THE EXECUTIVE BRANCH not by the Judicial Branch is essential. That is no where in evidence.
What we have is a government with the largest and most active branch that is actively hostile to our rights. The Executive Branch works to limit those rights contrary to its constituted obligation. I see no reason to believe this was the government that was conceived and constituted for this country.
There is no reason to permit it to continue.