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Banned
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Please convince me that what it is at stake in the coming battle in the US senate concerning permanent modifications to "FISA laws", is so much different from what James Otis argued in Boston in 1761, in order that I will not continue my thinking that the poll results here, limited as they are, provide an answer as to why our fourth amendment protections are being eroded.
Originally the provisions of the bill of rights were insisted upon by representatives of a recenlty rebelious people, This citizenry had made it plain to authority that they viewed certain rights to be "inalienable", and that they were willing to take up arms against that authority to back their rhetoric.
After actually having taken up those arms, and fighting and dying to secure their independence from the former authority at great sacrifice to themselves, they were a credible force to be reckoned with by those attempting to draft a new consitution.
The poll results here, along with the general sentiment in this country, tell me that almost none of us are even willing to consider violently opposing efforts to weaken "our right to be secure in our papers", and in our homes, against search or seizure without "probable cause".
The authority also knows that, and since we project that we won't consider it reasonable to respond to the taking away of our bill of rights, by fighting, and if necessary, dying to prevent it, it is happening.
When you are "fresh from the fight", you have the most credibility, and means to intimidate without openly threatening. When you answer the poll question the way all of you, so far, have....you probably actually have to demonstrate a willingness to take up armed resistance, and then do it, to sufficiently intimidate authority to stop what the fuck they are in the midst of doing. They aren't concerned about our reaction, and it follows that they would dare to legislate our inalienable rights away from us....
Quote:
http://law.jrank.org/pages/2352/Writ...us-Rights.html
Writs of Assistance Trial: 1761 - Writs Versus Rights
The case turned on interpretation of the legal basis for the writs. Jeremiah Gridley, acting for the customs officials, maintained that necessities of state justified limitations on traditional English rights:
<h3>"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.</h3> '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."
Gridley included in his argument references to statutory precedents.
In rebuttal, Oxenbridge Thacher also referred to precedents. The colonial Superior Court's power was in the case of the writs being held comparable to that of the Court of Exchequer in England. Thacher reasoned there was no justification for such a comparison. He also criticized the longevity of the writs, stressing how their power could be abused by repeated use.
Following Thacher, James Otis spoke like "a flame of fire," according to John Adams. He, too, spoke of precedent. He built an elaborate argument that began with an individual's God-iven natural rights and the birth of societal compacts. He continued through old Saxon laws, Magna Carta, and actions taken over time to secure and confirm rights and principals of England's unwritten constitution.
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Quote:
http://query.nytimes.com/gst/abstrac...679D946097D6CF
FOR BOSTON STATE HOUSE.; Historical Painting to be Placed in Staircase Hall -- Reid's Picture of James Otis Before the Superior Court.
November 25, 1901, Wednesday
....The subject given out for this decoration was "a scene in the old Town House'of Eoston in February, 1761, when James Otis made his famous argument against the" ' " writs of assistance " demanded by the' British Government to,assist the Crown officers in enforcing the laws governing the Customs. By the aid of such writs the Customs officials might call on local Sher-' iffs and Constables to assist, them in houses, stores, shops, and ships where dutiable goods were suspected which had been imported without paying the taxes imposed by Parliament in the Acts of Trade passed from time to time during the preceding century. Application was made in Salem in 1760 and referred to the Februl ary Term of the Superior Court meeting in Boston in February, 17(51. Meantime Lieut. Gov. Hutchlnson was appointed Chief Justice by the Crown, so that the trial might come before-a man thoroughly loyal. It Is the scene of Otis's argument against the assumption of Parliament which has been chosen,-and well chosen, to form the chief, if not the only, decoration for the Staircase Gallery....
....The picture when seen from the floor of the hall will' be at about I the height of twenty feet; when seen from the galleries it will be on the level of the eyes. We owe to a reminiscence of John Adams the preservation of this scene. "Writing" '.slx years later to William Tudor, he sketches the.scene in the council chamber of the old Boston Town House, speaks of the big fire on the hearth, the five Judges "all arrayed In their, new, fresh, rich robes of scarlet English broadcloth. In their large cambric bands and immense judicial ." <h3>Adams goes so far as to say: " American independence was then and there born; the seeds of patriots and heroes were then : and there sown, to defend the vigorous youth, the non sine Diis animus . Every man of a crowded audience appeared to me to go away, as I did. ready to take arms against writs of assistance. :Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then^and there ' the child Independence was born.</h3> In fifteen years, In 1776, he up to Manhood and declared himself free." James Otis is supposed to be uttering these words: " I will to my dying day oppose with all the powers and faculties God has given me all such Instruments of slavery on the one hand and villainy on the other as this Writ of Assistance la."
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Quote:
http://www.mnstate.edu/borchers/Research/otis.htm
A Rhetorical Analysis of
James Otis's Against Writs of Assistance
By Tim Borchers
.......First, the Chief Justice "possibly feeling the emotion in the open courtroom, adjourned the case until fall to give himself time to write to England for instructions" (Pleasants 21). In November 1761, the court ruled writs were indeed legal. However, <h3>Adams wrote that even though the court granted the writs, he "never knew that they [customs agents] dared to produce them or execute them in any one instance </h3>(Life and Works 10:248). Frese noted that Otis's arguments "formed the basis of many subsequent refusals to grant the writ in other colonies (498). Five years later, in 1766, the matter was settled when, based on a Connecticut appeal to Britain, Attorney General William de Grey decided that "any deputation giving the colonial customs officials general powers of search was not founded in law" (Frese 504).
As for the popularity Otis may have achieved because of the speech, Tyler argued the speech "made him at once a leader in public opinion in New England respecting the constitutional rights of the colonies" (401). Further, Otis was elected almost unanimously to the state legislature one month after the trial (Adams, Life and Works 10:248). It is entirely probable that colonists knew of Otis's speech. Frese argued that it was likely the speech was discussed and copies distributed (497). The Massachusetts Spy, a radical journal published in Boston printed the speech in 1773, when writs again were questioned. Otis's use of natural rights to argue against a law he felt was unjust supports Jamieson's (238) conclusion. Publicly rejecting the injustice of writs of assistance is another explanation for Otis's popularity. Frese concluded that "we wonder if his arguments did not have more influence than can be proved" (497).
Today, jurists praise Otis's initial formation of constitutional law. New York attorney Daniel J. Kernstein argued the Fourth Amendment to the Constitution is "directly attributable to Otis's courtroom argument. . . His role in the Writs of Assistance case was an important part of the intellectual framework of our Constitution" (2). This view is supported by numerous political science textbooks which discuss constitutional law (Burns and Peltason 188). Former Massachusetts Supreme Judicial Court Chief Justice Edward F. Hennessey remarked:
Many momentous events have occurred in three centuries before the high court of Massachusetts. None is more significant, more dramatic, more compelling in its lasting effect upon America-indeed upon the whole Western world-than the brilliant argument against writs of assistance offered by James Otis, Jr., before the court in 1761. (31)
Even today, advocates use natural law as a basis for argument. Supreme Court Justice Clarence Thomas, for example, espoused the natural rights doctrine in many of his legal writings and when he testified at Senate confirmation hearings. Some say "right to die" advocate, Dr. Jack Kevorkian, is arguing from the principle of a higher moral law. Studying Otis's historic use of natural rights allows communication scholars to better understand contemporary uses of this persuasive strategy and its effects. Jamieson concluded, "The topos [natural law] is uniquely useful where an ultimate appeal is required, and that it can be used, rendered both credible and persuasive, because it satisfies a psychological need of men [sic]" (241). For the colonists of 1761, if not for Otis himself, that need was freedom from tyranny.
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