Think your home is your “castle?” Think again.
Did you know that some public employees, not involved in any way with law enforcement, now have the authority to enter private property, even private homes, without a warrant signed by a judge or without even the consent of the property owner?
I thought that might get your attention. But first, the background:James Otis, called by John Adams the most important American of the 1760s (“a Flame of Fire!”), is largely forgotten today. An assault by a British officer in 1769 left him largely incapacitated, and he withdrew from the public fight for independence. But his ten years of public prominence were important in many ways, most notably for his impassioned opposition to Writs of Assistance in the Superior Court of Massachusetts.
General Warrants, documents giving a soldier or sheriff broad authority to search or arrest, and Writs of Assistance, written orders issued by a court instructing a law enforcement official, such as a tax collector or customs officer, to perform a certain task, such as search for smuggled goods, were used extensively in England before the colonial period. They made their way across the Atlantic when Parliament gave American customs agents permission to apply for them.
As Parliament increasingly tried to tax the colonies to pay off French and Indian War debt, Americans became increasingly incensed at the violations of privacy and property the Writs caused. As taxation and customs duties increased, smuggling to avoid the taxes and duties kept pace, which was met by even greater use of the Writs.
The problem came to a head in 1761 when James Paxton, a Massachusetts customs official, applied to the court for a new writ of assistance; his was expiring due to death of the King. Sixty-three Boston merchants challenged the legality of the writ and Advocate-General of Massachusetts, James Otis, was ordered to defend the use of the writs for the colony. He refused.
Instead, he resigned his office (he was charged with deserting his office) and was in turn retained by the merchants as their counsel in the case. Otis refused their offered fee, saying that in such a cause he despised all fees. In a five-hour speech, witnessed by young lawyer John Adams, Otis argued that the writs were unconstitutional, basing his case on rights guaranteed in English common law. Adams was enthralled by Otis’ oratory. Although Otis lost and the writ in question was issued, Adams later wrote:
I have never known a man whose love of country was more ardent or sincere, never one who suffered so much, never one whose service for any 10 years of his life were so important and essential to the cause of his country, as those of Mr. Otis from 1760 to 1770 … American independence was then and there born.
With Otis’ arguments sinking home, the American public began interfering with Customs officers; their property and even their lives became imperiled. These public actions, some themselves illegal, greatly reduced the effectiveness of the writs.
At trial, Otis had argued:
Otis went on to give, in Adams words:
(Writs of Assistance) appear to me 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. … It is a power that places the liberty of every man in the hands of every petty officer … by this writ not only deputies, etc., but even their menial servants, are allowed to lord it over us … Everyone with this writ may be a tyrant … one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle …
a dissertation on the rights of man in a state of nature.
Two years later Otis found an ally in Parliament when William Pitt rose to proclaim:
The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail, its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.
The following year (1764) Otis published: The Rights of the British Colonies, Asserted and Proved. In which he further argued against Parliament’s power to tax the colonists.
Although some of the new state Constitutions contained protections against General Warrants or Writs of Assistance, when the Constitution was drafted in 1787, it contained no overt protection of private property against search or seizure.
For why declare that things shall not be done which there is no power to do?
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
But the Fourth Amendment has almost exclusively been used in the context of law enforcement personnel pursuing or obtaining evidence in a case or complaint. What about other government employees or even private citizens entering private property. That, we call trespass, except when we don’t.In January 2015, an Alexandria, Virginia, woman died and more than 80 other people were taken to hospital after they were trapped in a smoke-filled Metrorail car stopped near one of the system’s underground stations.
In response, the Obama administration directed the Federal Transit Administration (FTA), as a temporary measure, to oversee safety of the Washington Metropolitan Area Transit Authority (WMATA). As a longer-term solution, the FTA ordered that Virginia, Maryland and the District of Columbia, the three jurisdictions in which Metrorail operates, establish an effective safety monitor and gave them until February 9, 2016, to act. Thus was born, at least the idea for, the Washington Metrorail Safety Commission. When the two states involved lollygagged over the legislation necessary to create the commission, the FTA announced they would withhold millions of dollars in transportation funding until the states acted. That got the ball rolling.
But the states still needed the consent of Congress. Article 1, Section 10 Clause 3 of the Constitution states:
No State shall, without the Consent of Congress, … enter into any Agreement or Compact with another State, ….
Enter Representative Steny Hoyer (D-MD), who introduced House Joint Resolution 76 on February 16th, 2017. It reads:
Virginia and Maryland legislatures acted quickly to enact the necessary legislation. The House Judiciary Committee, headed by Virginia Representative Bob Goodlatte, was given responsibility for the resolution, but held no public hearings. No time for that. After some internal discussion, they reported the resolution favorably to the House on June 14th.
Recognizing that safety is of utmost importance to the Metro system, today we introduced a joint resolution to give Congressional consent to establish the Washington Metrorail Safety Commission. Friday’s decision by the Federal Transit Administration to withhold transit funds from Maryland, Virginia, and the District of Columbia stresses the immediate need to quickly enact this legislation. This resolution highlights the willingness and readiness of Congress to work together to establish the Safety Commission, and we call on the Maryland and Virginia General Assemblies to follow action taken by the Council of the District of Columbia to enact this legislation without delay. (emphasis added)
The House voted three days later and passed the resolution 399 to 5. Not to be burdened by a roll call vote, the Senate passed the resolution by unanimous consent on August 4th. It was signed into law by the President on August 22nd.
Let’s take a look at what the resolution grants, because it is obvious that all but five Congressmen and women did not.
Under Article IV, Powers, we find:
In performing its duties, the Commission, through its Board or designated employees or agents, may:… “(b) Enter upon the WMATA Rail System and, upon reasonable notice and a finding by the chief executive officer that a need exists, upon any lands, waters, and premises adjacent to the WMATA Rail System, including, without limitation, property owned or occupied by the federal government, for the purpose of making inspections, investigations, examinations, and testing as the Commission may deem necessary to carry out the purposes of this MSC Compact, and such entry shall not be deemed a trespass. The Commission shall make reasonable reimbursement for any actual damage resulting to any such adjacent lands, waters, and premises as a result of such activities; (emphasis added, obviously)
Do you see any reference here to obtaining a warrant before this “non-trespass” trespass takes place? What does “adjacent to the WMATA Rail System” mean? How far from a rail line does adjacent extend? What is considered “reasonable notice?” During what hours of the day or night can this “non-trespass” trespass be conducted? What does “premises” include? Does the “reasonable notice” need to be acknowledged by the property owner? If the property owner never receives or acknowledges the “reasonable notice,” can the “non-trespass” trespass still proceed? What if the property owner overtly denies permission to enter his property? What is “reasonable reimbursement” for damages to property? And where, pray tell, is the Fourth Amendment in all this?
So many questions, so little time; besides, there’s $9 million at stake; there’s an “immediate need to quickly enact this legislation.”
To their immense credit, five responsible Congressmen, all Republicans, three of them members of the Freedom Caucus, voted against this obvious violation of personal property rights; Justin Amash, MI-3, Walter Jones, NC-3, Thomas Massie, WV-4, Alex Mooney (WV-2), and Mark Sanford, SC–1 (Freedom Caucus members)
Congressman Amash went on to tweet:
Ironically, the resolution requires the Board of the new Washington Metrorail Safety Commission to take an oath of office swearing allegiance to the U.S. Constitution:
‘I, ___________, hereby solemnly swear (or affirm) that I will support and defend the Constitution and the laws of the United States as a Member (or Alternate Member) of the Board of the Washington Metrorail Safety Commission and will faithfully discharge the duties of the office upon which I am about to enter.’
This oath is required of Board members, I see no similar oath required of “designated employees or agents.”
But this doesn’t affect me; I live nowhere near a Washington Metrorail line.
The problem is precedent. If this clear violation of the 4th Amendment is allowed to stand, what other public corporations will be given similar authority? What private corporations will say: “Me too”?
So what’s a patriot to do? How should we respond?
I intend to ask my Representative, Scott Taylor (R, VA-2) along with my two Senators, to answer the questions I posed above and further to explain how this measure does not violate the 4th Amendment. I suspect I will not like their answers, should they even respond. So the next remedy lies at the ballot box.
What do you intend to do?
“Constitutional Corner” is a project of the Constitution Leadership Initiative, Inc.
 General Warrants were specifically prohibited in the Virginia Declaration of Rights, Section 10, and also in Pennsylvania, Delaware, Maryland, North Carolina, Massachusetts, and New Hampshire Constitutions.
 Alexander Hamilton, Federalist No. 84, 1788