By Lily Rothman
October 5, 2018

In the final days before the Senate vote on the confirmation of Supreme Court nominee Brett Kavanaugh, the national debate over the right course of action was distilled into one key question: Whom to believe?

The hearing process provided a stage for the striking testimony of Dr. Christine Blasey Ford, who accuses Kavanaugh of sexual assault when they were in high school, and the emotional rebuttal of Kavanaugh, who denies those claims. A limited FBI investigation over the past week seems to have given Republicans the assurance they need to vote to confirm Kavanaugh, while Ford’s supporters have turned their belief in her statements — and in all survivors who find the courage to speak out — into a rallying cry.

The news has also drawn attention to a fundamental principle of law that, it turns out, is more complicated than it seems: the presumption of innocence.

Senate Majority Leader Mitch McConnell has defended Kavanaugh on the principle that he is innocent until proven guilty, while Senate Minority Leader Chuck Schumer has made the point that the hearings are not a lawsuit and thus the legal presumed innocence rule is basically irrelevant. The two senators, despite working within the same system, are able to find very different guidance from the same concept. But that gap isn’t what’s surprising, says François Quintard-Morénas, a lawyer and the author of a 2010 article on the history of the presumption of innocence in The American Journal of Comparative Law.

What he does find “ironic” is which senator is on which side, as the narrowing of the concept is due in part to decades of effort by American conservatism.

“Schumer is not technically wrong,” Quintard-Morénas tells TIME. “Over time, the principle in the United States has been weakened considerably, for various reasons and mostly by conservative justices who didn’t want to expand the principle beyond the court of law.”

In examining the history of the idea, Quintard-Morénas went way back. He found that the ancient Babylonian Code of Hammurabi put the burden of proof on the accuser; that the ancient Greek statesman Demosthenes wrote about the importance of not calling people criminals before they were convicted; that a key third-century Roman legal document set forward rules about the evidence an accuser must supply; and that a Medieval European legal principle specified that conviction, not accusation, defined a criminal. Roman legal codes with clear analogs in U.S. law instructed judges to allow bail, treat defendants respectfully and conduct trials as speedily as possible so that the guilty and innocent could be properly sorted. An accused person was entitled to benefits that might be denied to a convict, such as conducting business or passing down an inheritance. The basic idea is, to Quintard-Morénas, a necessary logical premise for a functioning legal system.

“It starts a long time ago, in antiquity. If you allege that someone has done something wrong, the [burden of] proof is on you to demonstrate that what you say is true,” he says. “That’s a first principle of law that everybody knows.”

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He traces the precise phrase “innocent until proven guilty” to Johannes Monachus, a French clergyman and expert in Church law who lived around the turn of the 14th century. But, as simple as it sounds, it actually has two fairly distinct meanings, which Quintard-Morénas calls the rule of proof and the shield against premature punishment.

The former is a legal concept, applicable narrowly in a courtroom setting, which declares that the burden of proof rests on a prosecutor. That’s the one Schumer was talking about. The latter is a relatively broad idea, with legal and social implications, that a person who has not been convicted deserves to be treated as innocent up until the moment of decision. That’s the one McConnell was talking about.

Quintard-Morénas says he saw the difference between these two meanings first-hand. “In law school, as a French student, I learned it was a rule of proof and a shield against punishment, but when I went to Georgetown to do my master’s degree, I learned that it was only a rule of proof,” he says. One way in which the difference worked out was immediately clear: American suspects were commonly handcuffed upon arrest, a practice that to his French eyes seemed to diminish the dignity of a presumed-innocent person.

But in the course of his research, he found that the application of the idea in French history was subject to a series of ups and downs, to put it mildly. Although a French man coined the phrase, in 17th century France the maxim had some competition: the idea that he who spares the guilty punishes the innocent. Torture was used to elicit confessions, and certain punishments were meted out upon accusation rather than conviction. Though King Louis XVI supported the presumption of innocence in the 18th century, the French Revolution dealt the idea a major setback. Quintard-Morénas quotes Robespierre on the subject, wondering what would happen to the Revolution if the King himself were presumed innocent. However, over time and with the knowledge of how far things could go in the other direction, the presumption came back strong — and in recent years, French law has gone even further in strengthening the idea of the presumption of innocence in the broad sense as a matter of human dignity to which all citizens have a well-defined right.

In Anglo-American law, things went a different direction. The idea of “innocent until proven guilty” was common knowledge in the English-speaking world in the 17th century — an idea Quintard-Morénas backs up with mentions in plays and other popular writings, as well as legal cases — and there’s plenty of evidence that in the 18th and 19th century it was understood in a broad sense. For example, the Rhode Island Constitution enshrines it as a right. But, around the end of the 19th century, U.S. jurists started to argue that the narrow sense of the idea was a better way to apply it.

Quintard-Morénas traces the shift, in part, to the fight against crime around the turn of the 20th century and in its first decades. In that period, some American scholars even argued that a literal and broad interpretation of the presumption of innocence would cripple the legal system because it would mean you couldn’t arrest someone until their guilt was proved. Later law-and-order campaigners would make similar arguments; under Richard Nixon, the Justice Department specifically clarified that the idea had “was merely a rule of evidence with no application to pretrial proceedings,” Quintard-Morénas writes. Finally, in the 1979 case Bell v. Wolfish, the Supreme Court weighed in, with Justice Rehnquist declaring that the presumption of innocence was only to be applied inside the courtroom. “In his ruling he made clear, as a conservative justice, that the presumption of innocence was just a rule of proof that has no place before trial,” Quintard-Morénas says. One recent example of how this plays out, he says, is that the presumption of innocence can’t be used as an argument against websites that post mugshots.

“In the U.S. system today the presumption of innocence is only a rule of evidence that applies only to the prosecutor. That’s how legal people understand it,” he says. “Today it’s mostly a rhetorical device outside a courtroom, not anything more.”

To Quintard-Morénas, this trend toward a more narrow conception of “presumed innocent” is not a positive one.

“You can see how swiftly and surely you evolve to a world where the words ‘accused’ and ‘convict’ became synonyms,” he says. “That’s against a thousand years of fundamental principles of law.”

But in today’s world, of course, that fundamental principle isn’t simple either. For one thing, it would be extremely hard to actually enforce the presumption of innocence as anything other than a rule of evidence. Quintard-Morénas says he thinks that perhaps what the U.S. and the world need is a culture of respect, whereby both accuser and accused are heard properly without anyone jumping to conclusions either way. Echoing a position taken by other commentators, he says he’s glad that more sexual-misconduct accusers feel comfortable coming forward, but that he urges people at the same time to be careful about the impact of their words. Of course, he acknowledges, the better situation he envisions requires that accusers are listened to and not intimidated, and that both sides have faith in the judicial system working properly.

“I might be naïve. At the end of the day, everybody has an agenda, and you can see it in the Kavanaugh hearing,” he says. “I think we can get there and we’re probably not doing a good job today.”

Write to Lily Rothman at lily.rothman@time.com.

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