The Fourth Amendment…

…to the Constitution of the United States of America.

Our own Veritas Omnia Vincit comes through once again. Truth be told I’m in the ‘Feast’ part of the ‘…or Famine’ work cycle and haven’t been able to do much more than the daily FGS. So anyway I blinked hard and thought I saw VOV’s next iteration on the Bill of Rights. Fortunately, V was kind enough to re-send the article, so here it is.

The Fourth Amendment, or Who the Hell is James Otis?

Veritas Omnia Vincit

The colonists are by the law of nature freeborn, as indeed all men are, white or black.

James Otis, Rights of the British Colonies, 1764

Who the hell is he indeed?

The small Cape Cod town of West Barnstable was the birthplace of James Otis…one of thirteen children James was a smart young man and graduated from Harvard and became a top lawyer in Boston. The King had Otis appointed to the Admiralty Court as Advocate General to prosecute smugglers. Smugglers who were the product of the Crown’s own oppressive taxation structure.

Otis had no issue prosecuting smugglers, but the Crown felt it needed a way to further crackdown on the Colonists and came up with something called the “Writs of Assistance” which were nothing more than legal instruments allowing the British to enter any home or any business in the Colonies without notice, without cause, without reason simply to look for “contraband”. Otis fully believed that one’s house was indeed one’s castle very much inline with William Pitt’s notions that not only was a man’s house his castle but so much so that poorest man in his cottage may bid defiance to the full weight and force of the crown. Consequently Otis resigned his position immediately on the Admiralty Court and began representing Colonists, pro bono, in their efforts to stop the execution of these Writs.

Otis gave a five hour oration on a case involving the Writs at the Boston State house in 1761, listening intently in the audience was a young John Adams. Adams would be so moved by that oration that he would later say, “Otis was a flame of fire; with a promptitude of classical allusions, a depth of research, a rapid summary of historical events and dates, a profusion of legal authorities.”

Adams also remarked, “I have been young and now I am old, and I solemnly say I have never known a man whose love of country was more ardent or sincere, never one who suffered so much, never one whose service for any 10 years of his life were so important and essential to the cause of his country as those of Mr. Otis from 1760 to 1770. It is my claim that the child independence was then and there born, every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance.”

Otis would later write in 1765 that the Writs of Assistance violated Britain’s own constitution as far back as its founding to the Magna Carta. Clearly Otis and his words had a profound effect on those who would rise up against the Crown and foment revolution to free the Colonies from the grip of the English Crown.

Many have claimed to expand or interpret the words of James Otis as pertain to his concepts of liberty, and governance, and personal freedoms. As always I prefer to avoid imparting my modern day thoughts into his words and instead I prefer to let the words of men such as Otis speak for themselves as they are often quite clear and far more appropriate than my base attempts at extrapolating mindset.

Here is Mr. James Otis talking about Government, “The end of government being the good of mankind … It is above all things to provide for the security, the quiet and happy enjoyment of life, liberty, and property. There is no one act which a government can have a right to make, that does not tend to the advancement of the security, tranquility and prosperity of the people.”

Regarding our freedoms Otis had said we are by the laws of nature free born and that every act against natural equity is void. Madison would, like John Adams, take the words of Otis to heart and write the following as an Amendment (number four) to our Constitution, 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.

As with all things our founders did, these words were based on their deep commitment to protecting the individual against the tyranny of not only the majority but the full weight and force of Government. An entity they knew to be ever more tyrannical as it grew in size to eventually consume its citizens and subvert them from free men and women to subjects beholden to the government.

When we talk about the amendments as veterans we tend to focus on the second amendment because the shooting sports and the concept of our freedom being secured through force of arms resonates deeply with those who have borne the weight of force of arms. It’s easy to see the restrictions on the second for what they are, but for many of us (veterans and civilians alike) the encroachments on the other amendments are sometimes harder to spot. However on principle we should forever and always protest and resist all encroachments to any of the first ten amendments at a minimum because a pervasive government intrusion into any single amendment will never stop at that amendment and will always leech over into the others.

We must consider the Patriot Act, the War on Drugs, and the GWOT in those terms. Those acts designed to “protect” the great masses of Americans also have the effect of restricting fourth amendment protections and expanding the notion of probable cause. Secret courts that operate in the dark, without review by the American people, that authorize massive spying by the government on its own citizens are not the stuff of freedom. They are a harbinger of darker days, in repressive societies where every word was a potential reason for arrest or detention. When the government sends more guns to search the property and arrest a 66 year old man than it did to rescue the Libyan Ambassador in Benghazi one wonders what kind of government we actually have these days. When you consider the government spends more time spying on we the people than it does spying on China and Russia it’s good to remember the words of these founders.

There are no “reasonable” restrictions on any amendment, there are only restrictions which become encroachments and give the Government the foothold to further limit our personal freedoms.

There is one area where Liberals and Conservatives both make the same mistake and that area is the idea that increasing the reach and size of Government as a means to achieve a singular political goal at a singular moment in time is a benefit in the long term. The problem with that line of thinking is that the Government never gets smaller after it supposedly solves the original issue it only gets bigger and bigger until such time as you have so many encroachments on the Amendments that we no longer resemble a truly free people, but instead resemble servants controlled by so many laws and regulations that we can hardly do anything without bumping into another new restriction on our daily lives.

The way forward won’t be easy, it won’t be popular, and it surely will make statists uncomfortable. But we must begin to press our representatives to start dismantling these laws that limit your right to live privately and peaceable in security in your own home.

No doubt that statists among us will be happy to point out why we need to restrict some aspects of our fourth amendment protections. I welcome their responses, however misguided they might be.

Thanks for reading,
VoV

P.S. These amendments truly require pages of opinion and information, all I am trying to do is expose some perhaps unknown history and offer some of my surly curmudgeon views on the current state of affairs. To truly dissect the fourth amendment would require dozens of articles and court cases to point out where we’ve drifted off course. I hope you find these rather brief opinions somewhat useful to your understanding of the amendments.

Thanks, V. Appreciate the effort, and a little more knowledge of our Constitution is always welcome.

Category: Guest Post, Legal, The Constitution, Usual Suspects