The federal government regularly assures us that NSA warrantless surveillance is perfectly constitutional and necessary for the safety of citizens. Politicians, government officials, and media outlets constantly warn that if the government doesn’t have this power, citizens will fall prey to terrorist atrocities or attacks from “the outside.”
As a result of federal policy and institutions like the NSA, “privacy” is no longer private.
Instead of providing protection, these enactments work to gradually erode liberty. In their very essence, they are attacks from the inside. Their origin is a government that was a creation of the states.
In the 1760s, the situation was just as dire. In order to enforce its coercive means of taxation, the British Parliament enacted the Writs of Assistance. These were court orders that provided legal sanction for any official of the British government to enter and search the homes of the colonists. Commissioners, members of the military, and customs officials could all utilize the Writs against the will of property owners.
Primarily, this was done in order to ensure their compliance with controversial means of taxation such as the Stamp Act and Townshend Acts. Consequently, the British authorities urged that these measures were necessary in order to provide stability for the government and security for its citizens. Worried about smuggling and resistance to unjust taxation and purchase mandates, Parliament thought this an appropriate way to deal with colonial conflict.
James Otis Jr., patriot lawyer and unwavering firebrand of liberty, did not.
From Boston, Otis was a notable patriot lawyer who stubbornly defended the people’s liberties, arguing that the Writs invalidated the British constitution. Otis fought vigorously against the Writs of Assistance, openly exposing them as measures that seized liberty. In one case in 1761, he argued for hours against the legitimacy of the Writs before the Superior Court of Massachusetts. While five judges in this case decided to uphold the constitutionality of the Writs and Otis lost the case in question, he made a potent impression on compatriots that would come after him.
Otis accurately noted: “A man is accountable to no person for his doings …one of the most essential branches of English liberty is the freedom of one’s house.”[1]
A young John Adams was so moved by the persuasive power of Otis’s words, he wrote:
“American independence was then and there born. The seeds of patriots and heroes, to defend the vigorous youth, were then and there sown. Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance…Mr. Otis’s oration against Writs of Assistance, breathed into this nation the breath of life.”[2]
It has been said that the speech was “the living voice which called to resistance, first Boston, then Massachusetts, then New England and then the world!”[3] Historian John Morse described the oratory as “the first log of the pile which afterward made the great blaze of the Revolution.”[4]
Unsurprisingly, after controversy erupted over the Writs of Assistance, the British Parliament guaranteed its North American subjects that the policy was perfectly legal and constitutional in 1767. Thankfully, patriots like James Otis Jr. wouldn’t be swayed by such assurances. By 1791, Otis’s vigilance helped inspire the Fourth Amendment of the Bill of Rights, emphatically and unambiguously limiting the government’s power to intrude on privacy.
We should never be surprised at the lengths government will go to consolidate power and disrupt privacy. All attempts to suppress privacy rights have been tried by tyrants throughout history, from King John of England to the modern day. All oppressive acts has been tested and tried; they are just called by new names in each age. Similarly, there are new paths to embark upon in the name of tireless resistance toward this subjugation.
Nullification, a principle Thomas Jefferson acknowledged as “the rightful remedy,” is the most effective path of resistance.
Today, the NSA employs techniques much like those enacted by the British Writs of Assistance to collect personal information by means of phone records, internet activity, and wiretapping. It does so without warrants or acknowledgement of due process rights. These practices can be rejected through nullification.
A bill introduced in Maryland that would prohibit the flow of water and electricity to the NSA Headquarters brings this issue to the forefront. The bill’s sponsor, Michael Smigiel, framed the bill eloquently:
“I want Maryland standing with its back to its people holding a shield. Not facing them holding a sword.”
Smigiel produces an argument that is just as powerful and significant as James Otis Jr.’s stance in 1761. Realizing the malignancy of the NSA’s spying endeavors, Smigiel speaks in direct terms to condemn the organization for its acts. He sets a tone of perseverance and inspires others in ways most politicians would never dare to attempt. Like Otis before them, Smigiel and defenders of liberty stand united in their conviction that enough is enough. The American child of independence can be born again.
This approach is fully consistent with the maxim of privacy, long considered sacred and acknowledged in the Fourth Amendment. Through ratification of the Constitution, the states made it plainly known in 1787-1790 that they wished for this check on the federal authority. Because of this restriction, a new Writs of Assistance program could never emerge again. In a prophetic way, the founders anticipated the NSA and the evil it could bring long before it was established.
As such, the Writs of Assistance and the NSA Spy Program both remain synonymous for schemes of government that deprive individuals of liberty. Following James Otis Jr.’s lead, the Tenth Amendment Center is forming the new Committees of Correspondence in order to oppose these unmistakable violations of liberty.
[1] James Otis, Against Writs of Assistance: February 24, 1761, October 24, 2013; available at http://www.constitution.org/bor/otis_against_writs.htm
[2] William Tudor, The Life of James Otis, of Masachusetts: Containing Also, Notices of Some Contemporary Characters and Events, from the Year 1760 to 1775 (Charleston: Nabu, 2010), 60-61.
[3] John Ridpath, James Otis, the Pre-Revolutionist (Milwaukee: H.G. Campbell, 1903), 57-58.
[4] John Morse, John Adams (New York: Houghton, 1924), 23.
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