Rise of the Warrior Cop (4 page)

T
HE REAL CONFRONTATION STARTED IN
1760,
WHEN
E
NGLAND
instituted a battery of unpopular taxes and import restrictions on the colonies. Many colonists took to smuggling to avoid paying new taxes on imported goods. The British then responded with heavy-handed laws to move against the smugglers. Then as now, the authorities were required to get warrants before searching private property. But it was the
general warrant
that infuriated the colonists. General warrants lack specificity. They grant broad authority to search broad groups of people, for evidence of any number of crimes, sometimes over long stretches of time.

The variety of general warrant that Britain used to enforce the import and tax laws on the colonists was called the
writ of assistance
. The policy had been authorized by the British Parliament in the 1660s, but it was rarely used in England. Beginning in the 1760s, however, it became an effective way to combat smugglers and tax scofflaws. Writs of assistance gave customs officials the power to enter private homes, search for smuggled or untaxed goods, and command other government officials and even private citizens to assist them.

In some ways, the writs were less intrusive than today’s drug warrants. Writs could not be exercised at night, for example, and authorities still had to knock, announce, and allow sufficient time for residents to grant them entrance before breaking down a door. But in other ways writs of assistance granted government officials more sweeping powers than any warrant today. A writ-holder had the power to search any building or residence and confiscate any suspected contraband. And once issued, a writ was essentially permanent—it
remained valid until six months after the death of the king in power when it was issued.

The colonists despised the writs, particularly in port cities like Boston, the hub of revolutionary fervor. The Massachusetts legislature banned general warrants in 1756, but that prohibition didn’t stop the English from issuing and enforcing them. Aggrieved Bostonians soon found a champion in James Otis Jr., a blustery Boston attorney who had just resigned as advocate general of the Admiralty Court—the court with jurisdiction over the ships importing goods—in protest against the abuses wrought by the writs. When Otis resigned, began advocating against the writs, and offered free legal representation to anyone who wanted to challenge their legality, he attracted attention, in both Boston and London.
⁸

In 1761 Otis agreed to represent a group of prominent Boston merchants challenging the writs in
Paxton’s Case
. The case was likely to be a loser—British law was fairly settled on the matter—but Otis and the plaintiffs hoped to use the case to stir up opposition. When the trial came, Otis used the court proceedings as his platform to deliver an impassioned, wide-ranging, five-hour polemic against the practice of general warrants. In one passage he called 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.”

Otis invoked natural rights, the Magna Carta, and the Castle Doctrine.

Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.

As expected, Otis lost in court. But his speech likely changed the course of history. One member of the courtroom audience that afternoon was John Adams, a twenty-five-year-old lawyer who would become the second president of the United States of America. Later in his life, Adams recalled the impact that Otis’s speech had on him. He praised Otis’s grasp of history and fiery defense of the rights of man and pointed out that, quite ahead of his time, Otis even declared that black men should be afforded the same rights as white men, including the right to own property. Adams credited Otis and his diatribe against British warrant abuses as the first knocks of the American Revolution. “Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistants,” Adams wrote. “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.”
⁹

Writs of assistance and the customs bureaus that carried them out would be among the specific complaints that the signers of the Declaration of Independence laid out against King George III on July 4, 1776: “He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” In 1791 the Castle Doctrine was enshrined in the US Constitution when the Fourth Amendment was ratified with the rest of the Bill of Rights. The Fourth Amendment prohibits general warrants at the federal level (the prohibition would later be extended to the states through the Fourteenth Amendment) by requiring that warrants not be issued without reason and probable cause, that they be sworn with an oath and affirmation, and that they include particular information about the place to be searched and the person and items to be seized.

But the Fourth Amendment was just one part of a larger, ongoing debate about how to police and defend the security of a free society. The country was young, untested, and unstable, and it faced hostile threats, both internal and external. Those threats would test early America’s devotion to individual rights and the Enlightenment principles that had animated the fight for independence.

CHAPTER 2

SOLDIERS IN THE STREETS

One of [America’s] greatest strengths is that the military is responsive to civilian authority, and that we do not allow the Army, Navy, and the Marines and the Air Force to be a police force. History is replete with countries that allowed that to happen. Disaster is the result.

—MARINE LT. GEN. STEPHEN OLMSTEAD, IN HIS 1987 TESTIMONY BEFORE THE US CONGRESS

T
he Third Amendment reads, in full:

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

You might call it the runt piglet of the Bill of Rights amendments—short, overlooked, sometimes the butt of jokes. The satirical news site
The Onion
once mocked it with an article about a Third Amendment advocacy group and its record 191-year fight to keep the amendment intact. The group’s motto: “Keep the fat hands of soldiers out of America’s larders!”

The Supreme Court has yet to hear a case that turns on the Third Amendment, and only one such case has reached a federal appeals court.
¹
There have been a few periods in American history when the government probably violated the amendment, and on a large scale, but those incursions into quartering didn’t produce any significant court challenges. In the War of 1812, for example, federal troops were quartered in private homes by the thousands, and quartering was also widespread during the Civil War. On both occasions, the quartering was neither authorized nor prescribed by Congress. During World War II, US military forces stationed themselves in the homes of Aleutian Islanders in preparation for an anticipated attack by Japan. Though it is likely that the government overstepped its authority in all of these instances, they failed to produce any work for the Supreme Court to hash out the amendment’s protections and exceptions. Not surprisingly, then, Third Amendment scholarship is a thin field, comprising just a handful of law review articles, most of which either look at the amendment’s history or pontificate on its obsolescence.
²

Given the apparent irrelevance of the amendment today, we might ask why the Framers found it so important in the first place. After all, citizens were made to sacrifice for national defense in ways far more intrusive. The Constitution allows for conscription, for example, and the Continental Army openly seized property like livestock and food from colonists.
³
Why, then, was quartering so despised?

One answer returns to the Castle Doctrine. If you revere the principle that a man’s home is his castle, it hardly seems just to force him to share a portion of it with soldiers—particularly when the country isn’t even at war. But the historical context behind the Third Amendment shows that the Framers were worried about something more profound than fat soldier hands stripping the country’s larders. The amendment was a placeholder for the broader aversion to an internal standing army.

At the time the Third Amendment was ratified, the images and memories of British troops in Boston and other cities were still fresh, and the clashes with colonists that drew the country into war still
evoked strong emotions. What we might call the “Symbolic Third Amendment” wasn’t just a prohibition on peacetime quartering, but a more robust expression of the threat that standing armies pose to free societies. It represented a long-standing, deeply ingrained resistance to armies patrolling American streets and policing American communities.

And in that sense, the spirit of the Third Amendment is anything but anachronistic.

A
S WITH THE
C
ASTLE
D
OCTRINE, COLONIAL
A
MERICA INHERITED
its aversion to quartering from England. British opposition to the practice dates back to the decade after the Norman Conquest, when King William first stationed a permanent army in England for national defense. To raise soldiers for an army, subsequent kings would often pardon killers and thieves, conscript them into military service, then billet them in towns and cities. As you might imagine, giving criminals weapons and the authority of soldiers, then billeting them among the population, brought some problems.

Opposition to quartering persisted for centuries, culminating with a ban on the practice in the English Bill of Rights signed by William and Mary in 1689.

Appreciation of the problems associated with putting soldiers among the citizenry ultimately carried over to the New World, just as the Castle Doctrine did. And as with the Castle Doctrine, England wasn’t nearly as respectful of the principle in the colonies as it was at home. The first significant escalation of the issue came in the 1750s, when the British sent over thousands of troops to fight the Seven Years’ War (known in the United States as the French and Indian War). In the face of increasing complaints from the colonies about the soldiers stationed in their towns, Parliament responded with more provocation. The Quartering Act of 1765 required the colonists to house, feed, and supply British soldiers (albeit in public facilities). Parliament also helpfully provided a funding mechanism with the hated Stamp Act.
⁴