A new poll
conducted by the University of New Hampshire for the Boston Globe
reveals that 40 percent of Massachusetts residents oppose “the government
obtaining phone and electronic records of US citizens,” while only 25 percent
support it. These numbers make clear that Commonwealth residents still hold
dear the very principles of American justice that were born under our feet.
After all, our state has long been a cradle of
liberty, and the Fourth Amendment was practically born in Boston.
Do you know about James Otis, his struggle against
the British Empire, and the making of the Fourth Amendment? A brilliant, young
attorney, Otis became practically obsessed with what he viewed as a profound
injustice visited upon the American colonists by their British rulers: the
writs of assistance.
Writs of assistance were essentially general
warrants. They allowed British soldiers to raid and search homes based on no
suspicion whatsoever of criminal activity. Any soldier could violate the
sanctity of anyone’s person or home. The British foot soldiers didn’t have to
have any reason whatsoever for these searches. The writs of assistance were
extreme violations of the basic privacy and property rights of Americans, and
the American revolutionaries loathed them – no one more eloquently or
passionately than Otis.
An extremely talented and ambitious man, Otis was
Advocate-General of the colony of Massachusetts at only 31 years old, the
equivalent of today’s attorney general. His ambition did not surpass his
commitment to justice, however: Otis resigned in disgust when tasked with
defending the legitimacy of the British Empire’s general writs. Almost
immediately afterwards, a group of Boston merchants sought his help to oppose
the writs before the Massachusetts superior court. Otis refused to accept
payment and argued the case with passion and vigor.
The young attorney’s five-hour oration
railing against the writs of assistance, “in opposition to a kind of power, the
exercise of which in former periods of history cost one king of England his
head and another his throne,” is now a famous speech.
What did Otis say that had such a profound effect on
the future of our nation?
Specific warrants describing the people, places or
things to be searched, and sworn by an affirmation, are legitimate and legal,
Otis said. But general warrants, those that do not require any specific
information or targeting – those warrants that enable the government to search
at will – are illegal. He said it like this:
Your Honors will find in the old books concerning the
office of a justice of the peace precedents of general warrants to search
suspected houses. But in more modern books you will find only special warrants
to search such and such houses, specially named, in which the complainant has
before sworn that he suspects his goods are concealed; and will find it
adjudged that special warrants only are legal. In the same manner I rely on it,
that the writ prayed for in this petition, being general, is illegal. It is a
power that places the liberty of every man in the hands of every petty officer.
I say I admit that special Writs of Assistance, to search special places, may
be granted to certain persons on oath; but I deny that the writ now prayed for
can be granted…
Although Otis lost the case, his rhetoric profoundly
altered the course of history. It just so happened that a young John Adams was
sitting in the courtroom on the day Otis railed against the writs. That same
John Adams would go on to pen the Massachusetts Declaration of Rights, the
Fourteenth Amendment of which would serve as inspiration for the Fourth
Amendment to the United States Constitution.
It’s clear as day that the NSA’s bulk collection
orders, like the one Edward Snowden disclosed from Verizon, violate the
principles James Otis laid out in his famous attack against the writs of
assistance. These orders are not directed at any one of us, but instead sweep
up records about all of our communications, violating both the letter and the
spirit of the Fourth Amendment, which clearly states that the government cannot
rummage through our personal effects absent specific, probable cause and a
sworn affidavit.
Why did James Otis throw away his career as the top
lawyer in the colony, risking his future and his family’s stability?
“The only principles of public conduct that are
worthy of a gentleman or a man are to sacrifice estate, ease, health, and
applause, and even life, to the sacred calls of his country,” he told the
court.
That sounds eerily familiar to what
Edward Snowden said yesterday. When asked what he would tell people like
him, “in a position to leak classified information that could improve public
understanding of the intelligence apparatus of the USA and its effect on civil
liberties,” Snowden simply replied:
“This country is worth dying for.”
The poll numbers show what we’ve long known here in
the Bay State: we won’t give up our liberty lightly. James Otis should rest
easy and Edward Snowden should take heart knowing that at least here in
Massachusetts, their sacrifices are not in vain.
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