Two History Lessons in the Fourth Amendment

I’ve known the story of James Otis’ fight against Writs of Assistance and its role in the establishment of our Fourth Amendment. But I really liked this telling of the story in the BoGlo.

[T]he Fourth Amendment can be traced to a neighborhood that has long regarded outsiders with skepticism. It was in the North End that simmering public resentment against searches found a test case in 1766, when an imperious British official squared off against a proud homeowner who insisted that his modest dwelling was, indeed, his castle.


Those with long memories remembered that the original Puritans had fled England at a time when royal officers searched their dwellings for Puritan Bibles and other signs of independent thinking. They knew the phrase “a man’s home is his castle,” linked to an English lawyer, Sir Edward Coke, who had inspired the first generation of New Englanders—and whose own home had been ransacked by English authorities near the end of his life.

The English, tightening the clamps on their vast empire, were stepping up their systems of enforcement in the 1750s and 1760s. The British were certain that they had the right to enter houses to enforce the law— how else could they run an empire? All known governments asserted this power, and much precedent supported it.

In a celebrated court case in 1761, an up-and-coming lawyer, James Otis, attacked the Writs of Assistance in a speech that soon became famous. In a small chamber inside the Old State House, he held his audience spellbound, speaking for hours as he drew on ancient English law to skewer the English. In insisting on “the freedom of one’s house,” he was inventing an argument as much as he was citing precedent—the Magna Carta, designed by 13th-century barons, was a long way from the problems of a Boston homeowner in 1761, and the law was vaguer on these points that Otis cared to admit. But as he hammered away at British arrogance, he expressed an idea about the importance of privacy with deep roots in New England’s rocky soil.

The story’s useful not just for the way the arguments attributed to the British at the time — all governments assert the power to enter homes at will, and how could you run an empire without that authority? — resonate with the arguments made about surveillance now.

But because of the stark contrast it offers with a different story of our founding, one told by John Yoo in an October 2001 OLC memo authorizing the government to use military force in times of emergency within the US. The whole memo is worth reading, but Yoo situated an undefinable authority to respond to exigencies in the Executive, pointing to things like the Shay’s Rebellion and this language from an Alexander Hamilton Federalist paper.

As they understood it, the Constitution amply provided the federal Government with the authority to respond to such exigencies. “There are certain emergencies of nations in which expedients that in the ordinary state of things ought to be forborne become essential to the public weal. And the government, from the possibility of such emergencies, ought ever to have the option of making use of them.” The Federalist No. 36, at 191 (Alexander Hamilton). Because “the circumstances which may affect the public safety are [not] reducible within certain determinate limits, .. . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficacy.” Id. No. 23, at 122 (Alexander Hamilton). As the nature and frequency of these emergencies could not be predicted, so too the Framers did not try to enumerate all of the powers necessary in response. Rather, they assumed that the national government would possess a broad authority to take action to meet any emergency. The federal Government is to possess “an indefinite power of providing for emergencies as they might arise.” Id. No. 34, at 175 (Alexander Hamilton). Events leading up to the Federal Convention, such as Shay’s Rebellion, clearly demonstrated the need for a central government that could use military force domestically.

I’m most interested in what Yoo did with this argument. Having decided the President had the authority to use the military within the US, Yoo argued that military operations included searches.

Our forces must be free to “seize” enemy personnel or “search” enemy quarters, papers and messages without having to show “probable cause” before a neutral magistrate, and even without having to demonstrate that their actions were constitutionally “reasonable.” They must be free to use any means necessary to defeat the enemy’s forces, even if their efforts might cause collateral damage to United States persons.


The view that the Fourth Amendment does not apply to domestic military operations against terrorists makes eminent sense. Consider, for example, a case in which a military commander, authorized to use force domestically, received information that, although credible, did not amount to probable cause, that a terrorist group had concealed a weapon of mass destruction in an apartment building. In order to prevent a disaster in which hundreds or thousands of lives would be lost, the commander should be able to immediately seize and secure the entire building, evacuate and search the premises, and detain, search, and interrogate everyone found inside. If done by the police for ordinary law enforcement purposes, such actions most likely would be held to violate the Fourth Amendment. See Ybarra v. Illinois, 444 U.S. 85 (1979) (Fourth Amendment violated by evidence search of all persons who are found on compact premises subject to search warrant, even when police have a reasonable belief that such persons are connected with drug trafficking and may be concealing contraband). To subject the military to the warrant and probable cause requirement that the courts impose on the police would make essential military operations such as this utterly impossible.

Cheney’s people did try, unsuccessfully, to use this memo to justify using force in Lackawanna, NY to search for suspected terrorists.

But it was actually used: as foundation for the illegal wiretap program (which, given that it amounted to the NSA invading the stored communications of Americans without a warrant, fundamentally amounted to the deployment of the military domestically). The memo was not withdrawn until after the FISA Amendments Act established a different basis for the dragnet.

The BoGlo tribute to James Otis only underscored how much we’ve colonized our own country, insisting on the authority to conduct such searches because how else can you run an empire!

15 replies
  1. chronicle says:

    quote:”The BoGlo tribute to James Otis only underscored how much we’ve colonized our own country, insisting on the authority to conduct such searches because how else can you run an empire! “unquote

    Because how else can you run an empire! Hahahahaha! ZING! Your satire could behead a target without them even knowing it Marci.

    Speaking of searches and SEIZURES you probably are aware of Greenwald releasing another Snowden doc, related to NSA’s Tailored Access Office interdiction of “routers” etc, and the tech industries freaking out..mainly the CEO of Cisco releasing a ..ahem..”statement” of non-cooperation with NSA..well, something occurred to me.
    Since the MSM has so masterfully kept the WHOLE TAO story out of the news, it dawned on me that what the TAO is really doing, by “interdicting” peoples tech products, is SEIZING “effects” of people without a warrant. And then adding “broadcast” and other tech to the product, and then “returning” it to it’s destination. No? What really bothers me though, is WHO in the shipping industry is HELPING NSA by identifying targeted packages, and then, ship them DIRECTLY to the TAO? Virtually NOTHING has been questioned about this ever since Jacob Applebaum gave his “Protect and Infect” presentation in Germany almost a year ago…

    Run an empire indeed. Some one needs to investigate this “interdiction” shipping crap. After all, there are only a few global shipping companies. I’d submit, given what we know already…I’ve got $1k that says…ALL of them have “partnered” with the NSA. Btw…ordered any new USB cables, or hardrives…or ANYTHING computer oriented lately. I’d almost go so far as to suggest..NEWEGG is in on it too. Indeed, how else would these packages get “identified” in the first place. And if so, why couldn’t you sue one of these companys for conspiracy with the NSA to SEIZE without a warrant? All I know, is I don’t buy ANYTHING tech from these companies anymore.

  2. chronicle says:

    Btw Marci. Being semi retired on a fixed income makes it almost impossible for me to donate money to your efforts here. However, once in a while I have a little extra and will certainly donate as soon as I am able to. In the meantime, all I can do is offer my appreciation. Thank you.

  3. orionATL says:

    “.. given that it amounted to the NSA invading the stored communications of Americans without a warrant, fundamentally amounted to the deployment of the military domestically…”

    and so it does indeed, transparently one might say.

    so how come no congresscritter,not one sorry one, can bring themselves to say this in the house of representatives right now?

    • emptywheel says:

      Actually, Hayden is right about the law as interpreted. We’re battling the NSA in a realm in which courts have created giant exceptions for “special needs,” which don’t require warrants.

      It is true the Fourth Amendment reads differently, but the battle we’re fighting is in a world where courts have already whittled away at that language.

  4. ArizonaBumblebee says:

    Is Professor John Yoo a modern-day Carl Schmitt, doing the bidding of dark forces in the so-called deep state? Like many conservatives who flirt with authoritarianism, Professor Yoo wants you to believe that the Fourth Amendment doesn’t mean what it says. He even quotes Alexander Hamilton, a person of dubious integrity, to buttress his argument, while ignoring that man’s role in helping to pass the odious Alien and Sedition Acts. Justice Douglas was right to suggest in one of his opinions that those acts were passed in one of the darkest moments in American history. Hopefully future historians will say the same about the Patriot Act.

    • orionATL says:

      thanks for the information.

      not directly related to your comment, but john yoo is a member of The Federalist Society, named after “the federalist papers” a series of essays by james madison, john jay, and the aforementioned hamilton. hamilton was the “very serious person” in the truimverate. as such he was an instintive authoritarian.

      the federalist society is one of the most dangerous-to-constitutional-liberties organization operating in american politics today. its name is a mask to hide from recruits and the american public its anti- community of citizens, pro- police state, pro-business, fascist leanings.

      were it not for the federal judiciary having been stacked with federalist society members over the last two decades,

      the nsa spying program would be history by now – long ago declared unconstitutional on multiple counts.

      justices john roberts, a. scalia, c. thomas, and s. alito are members as are dozens of appellate court judges including some of the most blatantly partisan and legally incoherent.

  5. Soultrain says:

    You know, it’ really outrageously problematic for Yoo to attempt to cite Hamilton as some ultimate, originalist, yet total authority on the issues – as this was merely small part of the public debate between both Pro-Federalist and Anti-Federalists that was not always so succesful in contributing to the perfection of an evolving product- that being the draft Constitution document that consolidated many modifications of as many POV’s. While Hamilton’s logic seemed crystal-clear as I recall, it’s also true that Madison was worn out at this point: pointing to fact that even a sole contributor’s lack of personal resources effected the outcome.
    So think Brutus’s letters at this time: that bad actors in a federal government might employ the military for promoting their self-interests, that – ” an equal, and perhaps greater danger is to be apprehended from their overturning the constitutional powers of the government, and assuming he power to dictate any form they please” I mean, this is what the Bill of Rights was meant to protect against, why Jefferson and then Madison supported it, why it’s inherently supreme law when the Constitution as executed presents ambiguity or presents questions of possible abuses of it. As a document that does not, nor could not enumerate ALL the natural civil rights – Yoo and co. still managed to universally extinguish ALL civil rights for the subjected. That is, the Federalist Papers are not by any means that comprehensive in providing much understanding, and certainly not the ultimate authoritive body in interpreting the Constitution as it was meant to perform and protect. Of course as everybody knows there is a huge body of work that extends back hundreds of years that gave rise to the American confederations, republic, representative democracy, the Constitution, Bill of Rights. This is the problem of a lack of humanities in education, attorneys thinking they are inherently legal historians, little exposure to the facts of the “why” of human condition, integrating contributions of Montisque, the Enlightenment for starters. But the perception is that these legal authors are certainly ambitious and brilliant, aren’t they? Or are they merely persons that will do what they are told, give them whatever they want? That’s dangerous.
    But my point is the Bill of Rights, no matter what, is surely the supreme law. It was specifically meant to curb abuses of power and ambition by Federal Government of both civil and property rights. In the Founder’s genesis of our laws, anti-Bill of Rights Hamilton was only one contributor, and thus on his own a minority view of one. Hamilton is then a poor, cherry-picked citation. More authoritative is that of Federalist correspondence of both Madison and Jefferson, whom supported the Bill of Rights – exactly for the intelligent, far-sighted reasons apparent in the now-see-how the military is used domestically, how the Executive is diminishing Congress, the manufactured abuse and exploitation the ideas of what is a terrorist and even the warping of what really was the Founder’s view of just war and the attendent devastation of domestic privacy. Wouldn’t a good OLC would always tend to cite the Bill of Rights, first? Give it the supremacy it was meant to provide?

    Jefferson was right. Madison evolved into it. Brutus in important respects was exactly right. One can only conclude that in this instance, the October 2001 OLC memo offer that the author’s personal ambitions overode any sense of ethical responsibility, augmented by an inherently faulty legal history education, and the effects are still devastating everything of what a good government did, does, or could do. These people’s harm to the integrity of the US seems boundless.

  6. soultrain says:

    @Don Bacon, @OrionATL
    Thanks, I know it’s a pretty choppy rant and has a couple of bad lines, sorry about that.
    I’m sorely lacking in the self-editing department of late.
    Don, wasn’t it only a few short weeks ago that the Ukraine situation had us under a new National Emergency? How many do we have currently, do you know?

    • Don Bacon says:

      The last count I have on National Emergencies is 26 (twenty-six) as shown here.
      Unfortunately my source on this subject, The American Presidency Project, went blank after March 20 so if they don’t come back I’ll have to find a new current information source because executive orders on national emergencies have to be renewed annually or they expire.
      Twenty-six national emergencies! Be afraid, very afraid.

  7. Kat Capps says:

    Thank you for this post. This is all new information to me, things that I have not read elsewhere. Thank you for all the work you do.

  8. Evangelista says:

    The reference by government authoritarian Yoo to Shays’ rebellion as a proof of need for greatest possible central authority is amusing, in that Shays’ rebellion against the use by central authority of law as a weapon against common people and their ownerships of property, and Shays being suppressed (and hanged), in January-February of 1787 was a prime driver to the realization of the May to September convention that produced the Constitution, for General Washington participating and assuming chairmanship, and for the individually arming of citizenry to maintain preparedness to counter corrupt government abuses (intended as a check and balance), to allow citizens to protect their rights in property.

    It is interesting that the stature of Shays’ rebellion in driving the course of United States political history toward and to the Constitutional for the 1787 convention gave it, and to forcing the Bill of Rights addition to it, is underplayed and glossed. Shays and his fellow “rebels” were veterans fo the American revolution who were small-fry caught in a bind between currency, specie and barter economies, where the power was, as usual, in the hands of the specie-holders, while the legal system was in their pockets. The issue then that galvanized General Washington and most other intelligent members of the fledgling collection of confederated states was if the revolution had been to benefit all in common, in particular those common who fought the battles, or the powerful, who, having specie and access to specie, and need to maintain international relations with lenders, where concerned with the confederation’s foreign debts and obligations. Assuming ownership of real property and reducing the common population to tenants, the common English model recognized at the time (and the Dutch Patroon model) would provide the monied-class owners produce of the land and income from the tenants, and would have produced a much different United States. One with much less difference between northern and southern plantation structuring and economies.

    Thus, the Constitutional Convention’s creating of a federal structure was an effort to create a protective federal structure, to check and balance the state-powers’ powers and abuses of those, both against other states and against the people in their states, while, of course, creating a structure that would check and balance the powers of the created federal protector, too. In all of the constitutional intepreting being done today, with factions adopting supposed justifications for their interpreting perspectives, none seem to be inclined to remember that the purpose of the convention, and all of the discussing in the convention was to prevent, impede, minimize and put obstacles in the ways of corruption and abuse of powers.

  9. Soultrain says:

    And there’s much to admire here about Madison’s view of Shay’s rebellion, seeing how significant this particular Massachusetts uprising really was. While Jefferson characterized it as “a little rebellion” – rather, as a “little rebellion now and then is a good thing, and as neccessary in the political world as storms in the physical” – and oft is mis-contextualized, it kind of leads into the thoughts of Madison on fearing that formally enumerating rights would actually become a chaining of the ethical purposes of the laws. And, as it was written as such, become subject to abuses by legislative expedients, as opposed to enumeration of legislative powers. He felt that by reducing broad natural human/civil rights to text was in itself, it seems to me, a problematic phenomenology that made it all defective, and thereby subject to government eroding them all at the never-ending expense of the individuals. The subject points out how flawed these current interpretations really are: they truly do not know a fraction of what they are talking about, at all. Thank you for your comments, reading what you wrote really brightened my day, as I think the big defecto in trying to correct these elements of bad governance is the lack of understanding how truly powerful and amazing these documents really are, while also understanding their evolution and limitations. However it is, the current status did not mean the original ethos didn’t exist, and was clearly meant to be maintained. That’s exactly where the leadership fails the Republic. Many of them, if not most, are simply not bright enough to hold the position we elected them to. They don’t know shit about the Constitution and Bill of Rights, and that is a fact. I can see it near-impossible to get them to understand privacy rights are indeed property rights.
    Thanks again, Evangelista

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