Search warrants

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(HOST) Given the current controversy over unauthorized wiretaps and domestic survellance, commentator Allen Gilbert has decided to review the historical roots of search warrants and privacy protections.

(GILBERT) Congress was angry when President Bush recently asserted that he has the authority to order searches without warrants.

The President seemed surprised by Congress’s reaction, but he shouldn’t have been. The Fourth Amendment of the Constitution states clearly that citizens are “to be secure in their persons, houses, papers, and effects, against unreasonable searches
and seizures.” Warrants for searches must be based on
“probable cause.”

I’m not here to advocate for broad protection of privacy rights, although I do believe in them. Rather, I want to explore the historical background of the Fourth Amendment. And the
Fourth Amendment does have a special history. The clue
is an odd phrase, “writs of assistance,” a phrase that you encounter in documents of the time. The phrase means nothing now, but at the time of the Revolution it was explosive. It sparked a legal argument in 1761 of which John Adams later said, “Then and there, the child Independence was born.”

The story is told in an article in the Notre Dame Journal of Law, Ethics, and Public Policy. “Writs of assistance” were “general, universal, perpetual, and transferable search warrants” used by
the British to enforce smuggling laws. The French and Indian War was draining the British treasury. Britain reasoned that since the American colonists stood to benefit from the war, they should help to pay for it. New taxes were imposed.

The colonists resisted, and took to smuggling to avoid many of the taxes. The crown then authorized “all and singular justices, sher-
iffs, constables, and all other officers and subjects” to enter homes and businesses at will and to seize virtually any property.

Boston attorney James Otis was an advocate general in the British crown’s vice admiralty court. He was so offended by the writs that he resigned his position. Boston merchants, who were
in the forefront of colonial resistance to King George, hired him to challenge the writs.

Otis called the writs “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.”

He argued that householders were reduced to servants under the writs because their homes were subject to search at any time. Otis said that “one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his
castle; and while he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege.”

John Adams, then a young lawyer, was in the courtroom to hear Otis argue the case. The ideas he heard that day became, thirty years later, the Fourth Amendment.

In President Bush’s defense, it should be noted that over the years the courts have recognized limited exceptions to basic freedoms. Our right of free speech, for example, does not extend to yelling “fire” in a crowded theater. But these exceptions are tightly bound by rules developed in case law over the years.

If James Otis were alive today, I doubt that he would be pleased with the recent assertions made by the President.

This is Allen Gilbert.

Allen Gilbert is a former journalist, teacher, and consultant currently serving as executive director of the ACLU of Vermont. He has a longtime interest in public policy issues. He spoke from our studio in Montpelier.

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