The Return of the King's General Warrants

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by William J. Holdorf

In colonial America, one of the sparks that lit the flame of liberty was the dreaded “Writs of Assistance,” more commonly referred to as the king's “general warrants.” Such general warrants were a declaration issued by the Crown that allowed the king's soldiers to search for smuggled goods in any suspected house or premises, day or night, without giving notice or warning.

In 1761, James Otis, a Boston, Massachusetts lawyer, who was advocate general of the Boston vice-admiralty court, was asked to defend the general warrants. Mr. Otis refused since he believed such warrants were a violation of a person's liberty. He based his conviction on the political and social rights that are found in English common law. As a result of his conviction, he resigned his office rather than defend something he believed was wrong, a noble characteristic much needed in today's legal profession.

Thereafter, he was hired by Boston merchants to challenge the legality of such warrants before the Superior Court of Massachusetts. It is noteworthy that he refused a fee offered him for his services, again, something rarely found in today's legal profession.

It was reported that Mr. Otis spoke for four hours giving detailed evidence against the legality of the general warrants. However, the court eventually ruled against him, no doubt, more in sympathy with the king at that time. As a result, the citizens of Colonial America were constantly being harassed by the king's soldiers using such general warrants merely on suspicion the law was being violated.

One of the first acts of the newly created nation after the successful War of Independence, our Founding Fathers, remembering the terror of such general warrants, passed the Fourth Amendment as part of the Bill of Rights added to the newly created Constitution, 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.

Our Founding Fathers believed there is a certain sanctity to one's person, the ultimate private property, as well as to one's possessions, that shall not be violated by the government without probable cause, as directed in the due process clause of the Constitution.

Unfortunately, the majority of today's politicians no longer believe in such a sacred ideal of liberty exhibited by James Otis and our Founding Fathers. Over the last several decades, it is shocking to realize that legislators have passed laws that clearly attack or undermine our individual personal rights in the Bill of Rights. And just as bad, the U.S. Supreme Court has upheld such violations of our rights. In particular, the U.S. Supreme Court in April 2001 ruled that it was legal for a police officer in Texas to arrest, handcuff and jail a woman for merely not using a seat belt, a victimless, state created crime that hurt no one. Our Founding Fathers must be spinning in their graves!

Texas is one of the states that passed primary enforcement of its seat belt law, which allows the police to stop any motorists merely under suspicion that a seat belt is not being used. Primary enforcement is really not any different than the dreaded king's general warrants for the motoring public, which our Founding Fathers thought they prevented by the passage of the Fourth Amendment.

It is shocking to realize we have come to such a low level of respect for individual personal rights that the majority of our present day legislators and even Supreme Court justices support the return of the king's general warrants in the likes of primary seat belt law enforcement. What is to prevent the next step will be our houses; our persons, reminiscent of the Gestapo of Nazis Germany?

It is shocking how far afield we have come as a nation from the cry of Patrick Henry, Give me liberty or give me death,” to “Click-it or ticket,” the cry of politicians who arrogantly claim the right to violate the Bill of Rights in the name of doing “good.” The fact is, taking away liberty in the name of doing good has been the easy road for dictators and tyrants for centuries. The fact is, if politicians who do not respect the Bill of Rights are not voted out of office soon, someday they will be doing so much “good” for us, we will no longer have any more rights to give up. Seat belt laws and, especially, primary enforcement, are clear major steps in that direction.

There certainly is nothing wrong with voluntary seat belt use; however, there is a great deal wrong with all state mandatory seat belt harness laws, and primary enforcement exacerbates that wrong even further.

William J. Holdorf [send him mail] writes from Chicago.

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