© 2014 Earl L. Haehl: Permission is given to use this article in whole as long as credit is given. Book rights are reserved.
In 1743, Sam Adams and James Otis, Jr, were admitted to the degree of Master of Arts with Honours by Harvard College. These two gentlemen were both allies and rivals over the next few years and the intellectual fathers of the American Revolution in Massachusetts Bay colony.
James Otis, Jr, was appointed advocate general of the vice admiralty court in Boston where he was an advocate enforcing the onerous Acts of Trade of 1751. As the residents of Massachusetts Bay sought extra-legal relief (Messrs John Hancock and Sam Adams being involved in such activity) Parliament came up with the use of “General Warrants” which allowed the Kings officers to search what they chose, when they chose and where they chose without specifics.
In 1761, partly because Gov Bernard appointed Thomas Hutchinson rather than James Otis, Sr, as Chief Justice, the younger Otis resigned his position as advocate general and took up the cause of the merchants of Massachusetts Bay. He did this pro bono or without fee.
His five hour argument in February of 1761, included the following:
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, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; 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 may inquire.
Does this sound familiar? Does the justification of NSA surveillance by such “defenders of our freedom” as Rep Peter King (R-NY) ring familiar?
James Otis, Jr, had begun his argument with the following.
I was desired by one of the court to look into the (law) books, and consider the question now before them concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare that whether under a fee or not (for in such a cause as this I despise a fee) 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.
John Adams, Sam’s more conciliatory cousin who had doubts about independence characterized this as the first act of resistance. It was the first action in an intellectual war of small actions which culminated in the shots fired at Lexington Green on 19 April 1775.
The court, presided over by the corrupt Thomas Hutchinson, rejected the argument. But the speech was amplified and published over the years. In December of 1773 Hutchinson was to be the recipient of a shipment of tea that would be forfeit to his warehouse on 17 December of that year. James Otis, Jr’s classmate Sam organized a costume party (it took place on Beethoven’s third birthday) that result in the tea being tossed into the harbor so it could not be unloaded.
Through the assistance of the anti-federalist movement which in the newly free and independent Commonwealth of Massachusetts included Sam Adams and the sister of James Otis, Jr, Mercy Otis Warren, ten amendments restricting governmental powers were adopted and ratified. These included the Fourth Amendment which 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.
After “9/11” supposedly changed “our democracy forever” the United States passed the USAPATRIOT Act which greatly expanded the powers of the US Department of Justice, the NSA (LBJ’s Secret Police) and government in general—we now have a Transportation Security Administration and Department of Homeland Security with seemingly unlimited powers. (I could posit that the events of 11 September 2001 did not substantially change the risk level for the United States but only the fear level.)
This legislation is not “the law of the land” in that it is passed, not pursuant to the powers granted in the body of the Constitution and contrary to the limits on federal power bluntly stated in the fourth article amending that Constitution. In other words, the argument is that an emergency grants extraordinary powers to ignore the basics of governing in a free society. In the 1688 Bill of Rights, the British Parliament objected to standing armies in time of peace—and since 1688 every monarch has assured military adventurism as a means to keeping standing armies. In 1798 John Adams wanted emergency powers because he had a gotten into a shooting conflict with France—his successor refused to enforce those powers. Since 1914 the United States has been in conflict with one or more foes—only twice, 1917 and 1941, have there been formal declarations of war although Bill Fulbright posited that the Gulf of Tonkin Resolution might be so considered.
The advantage to the powers that be of “emergencies” is that the electorate, with a dire threat from the outside, is willing to forgo freedoms in the belief that such willingness will diminish the threat. Ergo, since Muslim extremists were capable of flying a couple planes into buildings we are under threat—although we currently have no enemies with industrial capabilities, having reached a rapprochement with Red China and having caused the downfall of the Soviet Union through a massive spending war. However, we have a “Global War on Terror” as a result of G.W. Bush acting like John Adams on steroids and Barack Obama not being Thomas Jefferson in any sense.
Going back to the Fourth Amendment, James Otis, Jr, began a revolution of thought. As the kernel of the idea grew, it was added to and built up pressure. By April of 1775, the American Revolution was over—what lay ahead was a War for Independence. Yes, for these ideas and freedoms we went to war, not to give power over to a government that took crises as a rationale for going back to a time before it all happened and back to a government that made Leviathan look like a gila monster.