Saturday, July 20, 2019

Completely Unwarranted

Two hundred and forty-four years ago today, there was  small skirmish in Lexington between some colonialists and the British authorities.  Ralph Waldo Emerson would later write that this was the shot heard round the world, the beginning of the Revolutionary War that would lead to independence.

No one knows who, or even which side fired first that morning in Lexington, but while it was the first shot fired, it was not the start of the ideological revolution, It was not the birth of  the first step towards actively rebelling against the British King.  In my opinion, that had happened fourteen years earlier when a young lawyer, James Otis argued in a Boston Court.

The trial concerned the British government’s use of general warrants and writs of assistance.  Though both legal documents had existed for more than 150 years, in practice they were rarely used in England.  In the colonies, however, British tax collectors were used frequently.  A general warrant gave the holder the right to inspect, search, and seize property without any real limits.  Instead of a warrant granting an officer of the court to search for a specific piece of evidence at a specified location where there was reasonable evidence that the evidence existed, a general warrant allowed the king’s representative to search anywhere—for anything—without cause. 

Effectively, a general warrant allowed for fishing trips—you could search everything a man owned, in the hopes of discovering the grounds for a criminal offense.  Since the laws were numerous and contradictory, almost everyone was guilty of something. 

Writs of Assistance were even worse, since (as the name implies), it gave the holder the right to compel anyone to assist by surrendering evidence or testimony.  The holder could compel other government officials to cooperate, and it gave the holder the right to seize “suspected goods” and transfer ownership to a third party.  And the writs were effective for the life of the king who granted them plus six months. 

Following the Seven Years War, the Crown was perennially broke, and passed a series of unpopular new tax laws in the colonies.  When the people of Boston began smuggling and resisting payment, the Crown responded with more warrants and writs.  Eventually, the merchants found a good lawyer, James Otis, to argue the case in court.

The case was all but impossible.  Colonial tax cheats suing the Crown in a royal court against warrants signed by the King….it would have taken a miracle for Otis to win.  In his summation, Otis gave a five hour long impassioned speech against the unfairness of general warrants:

Such warrants are a power that places the liberty of every man in the hands of every petty officer…

That five-hour speech was witnessed by several young lawyer, among them a 25 year-old John Adams.  Otis didn’t win, but his words that day helped ignite the desire for independence.  Fifteen years later, general warrants were one of the grievances leveled against King George III in the Declaration Independence:

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

The 1776 Virginia Declaration of Rights specifically called for the abolition of the “grievous and oppressive” general warrants.  Almost immediately, the state of Massachusetts passed their old prohibition against general warrants in a law written by John Adams. 

These new laws were meaningless, since Crown law superseded state law.  After the Revolution, the Fourth Amendment, a part of the Bill of Rights, prohibited the issuance of general warrants.

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.

And with the ratification of the Bill of Rights, this should be the end of the story.  The constitution guarantees that we can say what we want, live our lives peacefully, and the government has no right to spy on us, or to search us without a court-issued specific warrant, or invade our privacy.

Unfortunately, in the last couple of decades, we seem to have slid backwards on the issue.  FISA Courts, endless Congressional Subpoenas, and Special Prosecutors seem (at least to me), to be a resurrection of the old general warrant.  Even before 9/11 and the passage of the egregiously intrusive Patriot Act, our rights and civil liberties were being eroded.

The government spies on us, gathers data on us, keeps data from our cell phones, and ignores the Fourth Amendment.  And we have special prosecutors who publicly announce that they will follow leads discovered by subpoenas to “see where the case goes.” 

If the FBI wanted to come to my house and read my emails, they would need a court order sign by a judge, to read specific emails limited to certain dates and specific individuals.  But, if the FBI subpoenas my emails from Google—or for that matter, every damn email from and to everyone in my state, no judge will need to sign off on the order.  In effect, the Fourth Amendment no longer exists.

Somehow, we are living in a Post-Constitutional world, where the “seriousness of the charge” trumps (pun intended) probably cause.  And that should be a shot heard around the world.

1 comment:

  1. I absolutely agree. I think what has gradually deadened our sensibilities to the idea of general warrants is the rise of the procedural detective show. We have grown to admire characters like Abbie Schuto and Tim McGee on NIS who regularly go way outside probable cause to do fishing expeditions. Because TV shows mostly the good thing about it (catching the bad guys), but they don't show the misuse of such data gathered. We like and trust the guys doing it (on TV), so we kind of approve.