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The Boston Globe

Ideas

Hindsight

How privacy became an American value

The Fourth Amendment grew from a showdown in Boston’s North End

“I become a transparent eye-ball,” Ralph Waldo Emerson wrote, in the most famous sentence of “Nature.” In an age of constant surveillance, that image has taken on a sinister new meaning. Transparent eyeballs regard us everywhere we go—from cameras perched above intersections, in building lobbies, and from our phones and laptops, which watch us as much as we watch them.

For those who worry about this oppressively bright light on our activities, the Fourth Amendment offers some shade, with its clear language against “unreasonable searches and seizures,” and its promise that Americans have the right “to be secure in their persons, houses, papers and effects.” Lately, judges and attorneys have been scrutinizing those words, seeking to establish just how much privacy they grant us. On April 29, two cases reached the Supreme Court, asking whether the Fourth Amendment limits the right of the police to seize a cellphone from a suspect. As our lives become ever more visible to the transparent eyeballs of the future (including—yikes—drones disguised as birds and insects), the Fourth Amendment will stand at the center of the controversy.

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The Fourth Amendment hasn’t always been on the cutting edge of the American conversation: In the 19th century, only five cases touching upon the Fourth were heard by the Supreme Court. It is not as famous as the First Amendment, or as frequently invoked as the Fifth. But its recent prominence revives an important debate that began in the 18th century, one with roots in the courtrooms and streets of Boston, and which ultimately helped lead to the creation of the United States itself. A look at the amendment’s origins suggests that the right it protects is more than a casual privilege—it’s a core freedom upon which the entire national epic depends.

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Appropriately, the Fourth Amendment can be traced to a neighborhood that has long regarded outsiders with skepticism. It was in the North End that simmering public resentment against searches found a test case in 1766, when an imperious British official squared off against a proud homeowner who insisted that his modest dwelling was, indeed, his castle.

Beginning in the late 1750s, Bostonians had been on edge against a vague form of warrant called a “writ of assistance” that empowered British officials to enter and search homes with impunity. Unlike specific warrants that identified how, when, and why a search would take place, this was open-ended and gave an inspector the power to search for anything at all.

Passions on the subject ran high for many reasons. Those with long memories remembered that the original Puritans had fled England at a time when royal officers searched their dwellings for Puritan Bibles and other signs of independent thinking. They knew the phrase “a man’s home is his castle,” linked to an English lawyer, Sir Edward Coke, who had inspired the first generation of New Englanders—and whose own home had been ransacked by English authorities near the end of his life.

The English, tightening the clamps on their vast empire, were stepping up their systems of enforcement in the 1750s and 1760s. The British were certain that they had the right to enter houses to enforce the law— how else could they run an empire? All known governments asserted this power, and much precedent supported it.

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In a celebrated court case in 1761, an up-and-coming lawyer, James Otis, attacked the Writs of Assistance in a speech that soon became famous. In a small chamber inside the Old State House, he held his audience spellbound, speaking for hours as he drew on ancient English law to skewer the English. In insisting on “the freedom of one’s house,” he was inventing an argument as much as he was citing precedent—the Magna Carta, designed by 13th-century barons, was a long way from the problems of a Boston homeowner in 1761, and the law was vaguer on these points that Otis cared to admit. But as he hammered away at British arrogance, he expressed an idea about the importance of privacy with deep roots in New England’s rocky soil.

Within a few years, this principle would get its first major test in the North End. On Sept. 24, 1766, a friend of Otis’s decided to make a stand, defending his home near what is now the intersection of North Bennet Street and Hanover Street.

An irritable English customs official, Benjamin Hallowell, had reason to believe that the owner of the house, a mariner named Daniel Malcom, had “Brandy Wines and other Liquors” in his cellar, and that he had not paid the proper duties. Malcom was not a man to accept meekly this intrusion from His Majesty. According to one source, he was a man “of seasoned hard timber.” Well-versed in the law, and knowing the issue was being legally disputed between Colonists and the Crown, Malcom demanded to know the particulars of Hallowell’s warrant. He especially wanted to know who had informed upon him, a piece of information that fell precisely between the two peoples’ sense of what constituted a legal search.

For obvious reasons, Hallowell did not want to reveal his source. But that weakened his claim to a legal warrant in the Colonists’ eyes, and a long, bitter argument ensued before a growing crowd. Hallowell demanded to see a basement room that was locked, and threatened to enter by force. Malcom replied that if he tried, “he would blow his Brains out.” Brandishing two pistols and a sword, he appeared ready to do so (though it was later revealed that the guns were not loaded). It was a turbulent scene—Malcom’s wife, Ann Fudge, was terrified, and their children upset. For most of the afternoon, a defiant Malcom stayed inside his home, with the shutters closed, while a surly crowd milled outside, making the English position that much more uncomfortable.

Finally, the afternoon turned to evening, rendering the warrant void. The English official limped away, angry but alive. Malcom celebrated by dispensing “buckets of wine” to his friends. Later, dozens of depositions were taken by local authorities, bringing into vivid detail a long fall afternoon when the sun began to set, quite literally, on the British Empire in America. Here, at last a line had been drawn, first sketched by Otis and now applied to a simple dwelling in a way that all Americans could understand.

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The British were infuriated after the North End standoff, and a year later, Parliament tightened control some more with the Townshend Acts, which claimed the right to inspect any house in the empire. That enlarged the dispute beyond Boston, and so incensed Americans in all 13 Colonies that eventually the city’s sensitivity over intrusion was written into America’s founding documents.

When James Otis denounced the Writs of Assistance in 1761, one person in the audience was a young John Adams. Adams never stopped remembering Otis that day, describing him as a “flame of fire,” and these memories, exaggerated or not, left an enormous legacy.

On the eve of independence, July 3, 1776, John Adams wrote to his wife, recalling James Otis and that 1761 speech against the Writs of Assistance. In 1780, as Adams wrote out a new constitution for Massachusetts, he made sure to protect freedom from “unreasonable search and seizure” as an essential right. In 1789, as the new country improved its Constitution, Virginia’s James Madison proposed the Fourth Amendment, borrowing his language from Adams.

Surveying all this history later, Adams wrote, “I do say in the most solemn manner, that Mr. Otis’s oration against the Writs of Assistance breathed into this nation the breath of life.”

A skeptic might point out that we Americans were not then, or now, entirely consistent. There were moments—including in the early days of the Revolution—when niceties were shoved aside in the effort to win the war. Quakers, for example, were often subjected to searches.

But inconsistency does not detract from the point that this was no ordinary right: It was a seminal freedom woven into the very fabric of the United States, at the time of its founding. In the last two decades, the amendment has been working overtime, helping a new generation to measure the legality of the Bush-era Patriot Act, bomb-sniffing dogs, strip searches, and random drug-testing in schools.

As our relentless creativity offers ever-new technologies of surveillance, we will have to confront the inconsistency of tools that are at odds with a fundamental American doctrine: the right to live life free from supervision. In the war against terror, or drugs, or crime, it might seem like an easy or even necessary liberty to forgo—but to surrender it is to give up, by degrees, what brought us all here in the first place.

Ted Widmer is assistant to the president for special projects at Brown University and a senior research fellow with the New America Foundation. He is an Ideas columnist.

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