photo credit: Poisonist

by Connor Boyack, Utah Tenth Amendment Center

Arguing before the Superior Court of Massachusetts in 1761, attorney James Otis argued for five hours against the legality of writs of assistance. These writs, which served as general search warrants that did not expire, allowed government officials to search an individual’s person or property at any time, and for any (or no) reason, without having to obtain a specific warrant that described in detail the person, place, or thing to be searched.

Retained by a group of Boston merchants for the case, Otis was well-versed in the abuses of these writs. When speaking before the Court, he related the story of one Mr. Ware, who in retaliation for having been brought before a court on charges of using profanity on the Sabbath, used a writ he had been granted to search through the judge’s home for smuggled goods, as well as the house of the constable who had brought him to the court. Similar abuses of the power to search and seize were quickly becoming commonplace.

Despite his passionate and persuasive speech, Otis lost to the government lawyers. Jeremiah Gridley, representing the customs officials, argued:

It is true the common privileges of Englishmen are taken away in this Case, but even their privileges are not so in case of Crime and fine. ‘Tis the necessity of the Case and the benefit of the Revenue that justifies this Writ. Is not the Revenue the sole support of Fleets & Armies abroad, & Ministers at home? without which the Nation could neither be preserved from the Invasion of her foes, nor the Tumults of her own Subjects. Is not this I say infinitely more important, that the imprisonment of Thieves, or even Murderers? yet in these Cases ’tis agreed Houses may be broken open.

Citing plenty of precedent along with his argument, Gridley was effectively employing the argument that the end justifies the means. As the government deemed it necessary to sustain the public coffers by suppressing contraband and ensuring commerce traveled through the government’s regulation and taxation apparatus, the argument was that writs were necessary to help achieve that goal—even if it meant infringing upon the liberties of citizens subjected to the invasive writs.

This type of argument has become frequently used in our own day. When a six year old was recently molested at the airport by government agents, the TSA sought to quell any opposition by matter-of-factly stating that the action was justified and legal because procedures were followed. Wrote the TSA’s propagandist Blogger Bob:

A video taken of one of our officers patting down a six year-old has attracted quite a bit of attention. Some folks are asking if the proper procedures were followed. Yes. TSA has reviewed the incident and the security officer in the video followed the current standard operating procedures.

In response to news that Utah will be following Texas, the TSA’s Denver office issued a statement that the agency would “work directly with concerned Utah legislators to explain the current threat environment that we operate in and the countermeasures we deploy to protect travelers.” The statement further noted that the pat-downs of innocent passengers not suspected of any crimes “are conducted fully in accordance with federal law”—this despite the glaring conflict with the Fourth Amendment to the U.S. Constitution.

The comparisons here are quite obvious, but worth mentioning. With the writs of assistance, the government justified its egregious abuses of power by claiming that they were legal. Indeed, based on court precedent and parliamentary statute, the writs were “legal.” The TSA likewise points to congressional statue and bureaucratic regulations which justify their procedures, and claim that since “proper procedures were followed,” that it’s completely acceptable that a stranger with a badge and blue gloves feel up men, women, and little children—touching private parts of the body and placing his/her hands within that victim’s pants.

Further, it was argued by the King’s administration that the writs were needed to help ensure the most ideal outcome; liberties would need to be sacrificed in order to ensure that sufficient revenue were raised to pay for defending the colonies and the King’s empire from its enemies. Today, the TSA produces a never-ending stream of justifications, similarly claiming that liberties must be sacrificed in order to keep people safe from terrorists. The ends, we’re told, justify whatever means the government wants to impose upon us.

The TSA is not alone in its brazen self-justification; plenty of other federal agencies and departments, if not all of them, cite statute, precedent, and policy to support whatever actions they think they can get away with. Other examples may be helpful to illustrate this point.

Despite a constitutional denial of authority to regulate intrastate commerce, the FDA’s former general counsel insists that the FDA “has the authority to regulate any food commodity that is offered for sale, regardless of whether it is purchased in the state in which it is grown.” Their burdensome and intrusive regulations, touching even the roadside fruit salesman, are argued as justified and legal because of congressional statute and a growing body of precedent. It’s also to protect the public safety from food poisoning, of course.

Barack Obama has recently sought to justify his use of military aggression in Libya without congressional approval by claiming that the war is not “war” per se, but rather mostly “participation” involving “non-kinetic support” as well as “kinetic attacks” on targets of the “NATO-led” forces. “We are no longer in the lead,” says Obama, supposedly using this argument to flout the law he is clearly violating. His argument is no different than those above: this action is justified because of the desired ends, and because there exists legal support, even though semantical gymnastics are required to obtain it.

Whether the issue is raw milk, copulating rabbits, light bulbs, the PATRIOT Act, or almost any other federal action, the government will justify its actions with whatever arguments it can. Power corrupts, yes, but corruption powers government.

Although Otis and his clients lost their case against the writs of assistance, they were able to turn the writ into a rallying cry that helped ignite a revolution. Opposition to the writ within the colonies heated in the hot embers of civil disobedience, and exploded into armed resistance soon thereafter. John Adams, who as a young man was present to hear Otis’ passionate plea for liberty, wrote that from the opposition to the writ “the child Independence was born. In fifteen years, namely in 1776, he grew up to manhood and declared himself free.”

Though defeated in court, the colonial patriots recognized an opportunity to revolt and escalate the conflict. Rather than seeing their defeat as an obstacle, they converted it into a catalyst that helped win over the public and increased the calls for independence.

Being molested by a TSA agent, or being shut down by an FDA bureaucrat, or being fined by an IRS tax collector, or being deployed to combat in an unconstitutional and immoral war, or having your records accessed by a snooping government desk jockey—these and far too many other daily occurrences are not the end of the fight for liberty. They can and should be just the beginning.

The child Independence, having long ago grown up to manhood, has for too long been on life support in a dilapidated resting home. Today’s steady stream of tyranny provides ample opportunity to create a potent rallying cry that helps ignite another (hopefully peaceful) revolution. The need is perhaps greater than it was two centuries ago.

The question before us is: who is our James Otis?

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


maharrey minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.