This Independence Day, We Need

This Independence Day, We Need James Otis

Mark J. Fitzgibbons

As Americans gather this Independence Day weekend, many will read the Declaration of Independence. When we get to the line, "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance," we may wish to tip our hats to James Otis.

John Adams wrote about James Otis' fiery argument in court against the Writs of Assistance in 1761: "[T]he child independence was then and there born." A 1783 eulogy poem written by Thomas Dawes described Otis as "first in patriot fame."

The Writs of Assistance, a method of search and seizure known as "general warrants," were authorized by Parliament. Otis nevertheless called these institutionalized violations of liberty "illegal." That certainly contrasts with the more milquetoast terms such as "lawless" and "overreach" used today to describe government's unlawful and unconstitutional acts.

General warrants were used in England to suppress religious and political dissent, and were also being used to regulate and stifle commerce in favor of cronies of the Crown. Boston merchants hired Otis, previously the government's lawyer, to argue their case. Otis called the Writs of Assistance "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book."

His argument articulated quintessential American principles that are now found in the Fourth Amendment to the Constitution. He lost the case, but ignited the colonies as word spread about his statement of principles.

Today, the principles of law and liberty argued by Otis are being ignored by America's soft police state, which uses mass surveillance to violate our property rights and privacy, and other more targeted administrative search and seizure tools to suppress rights of commerce and conscience.

A recent Supreme Court decision shows the judicial disarray on regulation of commerce and principles of the Fourth Amendment at the heart of the famous argument by Otis.

That case, City of Los Angeles v. Patel, involved the Fourth Amendment protections of hotel guest registries. While the case resulted in a technical win for the hotels, a dangerous majority opinion by Justice Sotomayor will do long-term harm by creating and institutionalizing more violations of the Fourth Amendment. Her dicta gives license to expanded use of administrative subpoenas, which are issued without "probable cause" or "oath and affirmation" presented to truly neutral judges.

A dissenting opinion written by Justice Scalia, who has been mostly excellent in bringing back the property and trespass bases of the Fourth Amendment, was equally flawed.

Justice Scalia's dissent will be read as license to expand the doctrine of "closely regulated industries" described in a 1978 case, Marshall v. Barlow. That doctrine holds that certain businesses are considered so inherently worthy of regulation that government need not obtain a warrant from a judge before conducting an inspection. The doctrine is now limited to liquor stores, gun shops and very few other industries.

In his dissent, Justice Scalia lists a parade of horribles that take place in hotels, ranging from drug dealing to human trafficking prostitution. These activities may typically take place in low-budget, but typically not in five-star, hotels.

There are two principal problems with Justice Scalia's dissent.

First, hotels are used for a variety of purposes -- ranging from legitimate commerce travel to family vacations -- that government has no business inspecting without a warrant issued by a judge or subject to emergency circumstances.

Lower-budget hotels are also used as sanctuary for victims of domestic violence. Families moving out of a home quickly because of domestic violence -- including when family members are law enforcement or other government employees -- often need to stay in hotels until they have safer living accommodations. Authorizing police or any government official to rifle through hotel guest registries without a warrant subjects legitimate sanctuary seekers to danger.

The other flaw in Justice Scalia's dissent is that his expression of "closely regulated industries" would likely be read by government and other judges to justify expanding the scope of the doctrine.

Since 1978 when Marshall v. Barlow was issued, there has been a massive expansion of the regulatory regime. For example, we did not have ObamaCare or the Consumer Protection Financial Bureau, which respectively impose "close" regulation on our health care and financial matters. Even the reaches of regulatory schemes such as the Environmental Protection Act that were in existence before 1978 (the EPA was created in1970) have grown and morphed beyond the control of Congress.

Much like when someone told Mel Gibson's character in the movie Edge of Darkness that his gun was illegal -- and he quipped with the memorable line, "Everything's illegal in Massachusetts" -- today everything's a closely regulated business.

This 4th of July weekend, it is worth remembering what James Otis did by igniting independence through fighting the combination of violations of the common law protections against unreasonable government trespass on our papers and effects, and an expanded regulatory state.