Past is Prologue


D.H.T. Shippey  & Michael Burns

“What’s past is prologue”

             William Shakespeare

Protection against unreasonable governmental search and seizure is guaranteed by the 4th of the10 amendments to the Constitution that make up our Bill of Rights. Like all of our constitutionally guaranteed rights, it was written to assure our protection from governmental abuse. Throughout our history, We the People have had to correct the government when it has chosen to ignore those rights and the limitations on its power. It is arguable to claim our country was born out of the action of correcting a government that had overstepped its power. The 4th amendment, like all of the Constitution and Declaration of Independence, can be traced back to struggles that remain relevant despite their origins in the 18th century.

      The debate over governmental search and seizure in America began in 1760, fifteen years before the first shots at Lexington and Concord.  It all started with the Writs of Assistance. In Boston during this period there was a thriving black market that smuggled and sold goods from business rivals like Holland, France, Spain, or even British goods without paying the customs fees. The Navy used small revenue cutters to board suspected ships at sea, while on land customs officers were similarly empowered. To make this task easier, the Vice Admiralty court issued the Writs of Assistance. These Writs were, in effect, blank search warrants giving the officials permission to harass anyone and search anybody’s home, business or papers without showing that they had any cause to do so. Now the problem with this practice was that it was open to abuse and corruption. Without needing to show just cause, officials could harass people, invade their privacy, and confiscate or destroy their property in pursuit of contraband. Making the temptation to abuse their power even greater, the enforcing customs officer could keep for himself 1/3 of the value of any “contraband” he recovered. The people of Boston--especially the Merchants of Boston--were outraged by the over eager Customs Surveyor Charles Paxton.

Opposing this abusive practice was Boston lawyer James Otis. Defending the right to privacy, he argued that the power to issue general search warrants placed

"The liberty of every man in the hands of every petty officer."





Otis continued,

"A man’s home is his castle, and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it is declared legal, would totally annihilate this privilege. Custom house office may enter our houses when they please and we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court, can inquire.”

Otis made a passionate, well-constructed and original argument. While some of his appeal related to technical issues, the weight of his argument was in basic natural rights or natural law. The theme of natural law would become central in the war for independence, the foundations of the new nation, and our legal system. Bostonians followed the case closely, but none so much as a 25 year old lawyer named John Adams. Years later, Adams would argue that the birth of American Independence was in that courtroom.

   The trial ended with the court rejecting Otis’ arguments. The court was not convinced, but the people of Boston were. The arguments and ideas presented were discussed throughout the colonies and influenced the thinking of people like Sam Adams, Thomas Paine, Patrick Henry, Thomas Jefferson and James Madison. The topic would become even more powerful and polarizing through the next 15 years as England attempted to assert more control over the colonist and the collection of taxes, eventually attempting to confiscate the public gunpowder stores in Concord. All of this past governmental power grab and potential abuse of future power would weigh heavily on the minds of the Patriots when creating the new nation’s Constitution. To prevent any such tyrannical tendencies, James Madison wrote out the 4th amendment as clearly as possible.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


  And so past again becomes prologue as we hear people debating the legality of warrantless searches conducted daily on airline passengers by a branch of the government. Arguments on the right to privacy and security in your person, papers and effects. Again and again the Founders seem almost prescient in their construction of our Constitution. Perhaps, though, it wasn’t so much prescience that made these founding documents so enduring, but rather an understanding that human nature does not change and that people would have the same needs, the same strengths and the same flaws in any age.

“Tyranny of all kinds is to be abhor'd, whether it be in the hands of one, or of the few, or of the many.”

                           -James Otis

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