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The Fourth Amendment of the Constitution is brief, but specific, when it comes to searches and warrants. It reads:
"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."
The concern over searches and warrants reaches back all the way to the dawn of the revolution in 1761 when James Otis stood firm against Writs of Assistance. You could even say that the Grandfather of the Constitution was in a way the founding father of the Fourth Amendment.
Writs of assistance wore the clothing of search warrants, but they were wolves covered with sheep's wool. They specified neither the person and place to be searched nor the item to be found.
The Fourth Amendment is so clearly written, and the history of Writs of Assistance is so well documented, that the judges and bureaucrats who claim to be the ultimate authority regarding the rule of law should have no trouble comprehending the original intent of the Constitution when it comes to searches and warrants. Yet, they seem okay with airport personnel stripping us to our underwear on a whim, setting up highway checkpoints to randomly question and search vehicles, and in the recent case of Donald Trump's Mar-a-Lago residence a warrant that was exceptionally broad and virtually unlimited making it inconsistent with the limits on warrants in place as a result of the Fourth Amendment.
A rabbit-hole of case law has led us down this road to tyranny, and a system James Otis would be arguing against in an instant. Unlike common law our Constitution is not supposed to be living and breathing and twisted like putty in the hands of activist judges who wish to interpret it to fit a narrative, rather than as it was originally intended.
Otis was an advocate general in the vice-admiralty court. When the Writs of Assistance began to bubble into existence in his neck of the woods despite his responsibilities that included prosecuting smuggling he refused to comply. In fact, when the British Monarchy and Parliament imposed Writs of Assistance Otis resigned his post in protest and represented, without charge, Boston merchants’ efforts to stop the writs. In a blistering delivery lasting five hours he argued that the general warrants violated a citizen's natural rights.
A young John Adams listened to Otis’ oration. Adams' later commented that it was during Otis' speech before the court that "independence was then and there born."
Otis lost the case, but the court of public opinion ran with it, dispatching wrath aimed at discouraging officials from employing the writs. Otis's influence grew from there, leading him to lead the Massachusetts Committee of Correspondence in 1764 through which he wrote pamphlets and routinely launched arguments against Parliament’s power to tax the colonists. Otis then joined Samuel Adams in putting out a circular that sought to enlist other colonies in resisting the Townshend Duties.
Search and seizure issues continue to permeate American liberties. Our federal government seems to have fallen into the same tyrannical habits we stood against during the revolutionary period. We have a federal government spying on its citizens through technology, and issuing warrants eerily similar to the ones issued in James Otis' day for the purpose of targeting their political opposition.
James Otis’ argument was based on our liberty because we “are by the law of nature free born,” and that “[every] act against natural equity is void.”
Otis viewed liberty as a broad natural right that touched upon everything in our lives, taking special care to apply the concept of liberty specifically to our homes and possessions. He asked, “Can there be any liberty where property is taken away without consent?” and asserted that “One of the most essential branches of … liberty is the freedom of one’s house...A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ … would totally annihilate this privilege. Custom-house officers may enter our houses when they please … break … everything in their way; and whether they break through malice or revenge, no man, no court may inquire.”
When asked what the consequence of violating those principles were, Otis responded, "villainy" and "slavery."
"I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other, as this Writ of Assistance is."
Eighteenth-century British citizens, whether in England or the colonies, were for the most part alone in their claim that their homes were their castles. No other people in the world, most of whom were suffering under governments that did not enjoy the Saxon System that required a citizen was "innocent until proven guilty", and that such citizens enjoyed natural rights, even realized that such an argument ought to exist. Sir William Pitt described the personal liberty of being secure in one's person, houses, paper and effects in November 1783 while addressing the House of Commons. He said, “The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.”
No government official was allowed to search indiscriminately according to the rule of law. And if the government did need to conduct a search the warrant had to specify the place to be searched and the object the government suspected they might find. Fishing expeditions were not allowed.
Why should it be any different in today's American Society?
Whether someone is a traveler being groped by the TSA, a resident in a neighborhood, a member of a group of people who visited Washington D.C. in January of 2021 to support their President, or a former President of the United States, the Fourth Amendment is clear; searches must be accompanied by a warrant "particularly describing the place to be searched, and the persons or things to be seized." And, the actual search itself may not exceed the terms of the warrant.
Our standards have been compromised, enabling tyranny to reign over the American People no different than in the years of the dawn of the revolution. Warrants have essentially become Writs of Assistance, searches have become fishing expeditions, and the ability to charge an individual is as easy as any other action of tyranny. In fact, the standard for obtaining an indictment is so low that a former judge of the New York Court of Appeals once said, “A prosecutor can get a grand jury to indict a ham sandwich.”
Prosecutorial discretion must meet the Constitution's standards. The evidence of a crime must be so overwhelming that even members of the target's family and friends would support an indictment. Nothing less should be acceptable.
-- Political Pistachio Conservative News and Commentary
Well said.
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