On February 24, 1761, a Boston lawyer named James Otis really went to town. He had been engaged by some Boston merchants—which is to say, in many cases, smugglers—to fight against the Writs of Assistance, which were odious general warrants that allowed agents of the Crown to barge into just about any business and/or dwelling to search for smuggled goods. Otis spoke for five hours.
The heart of Otis’s lengthy denunciation of the writs came fairly early on in his presentation. To Otis, granting the unlimited ability to search and seize created tyrants out of citizens. He also made it clear that the writs were contrary in spirit to the oldest precepts of English common law.
In the first place, the writ is universal, being directed “to all and singular justices, sheriffs, constables, and all other officers and subjects”; so that, in short, it is directed to every subject in the King’s dominions. Everyone with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder anyone within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him until the trump of the Archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the daytime, may enter all houses, shops, etc., at will, and command all to assist him. Fourthly, by this writ not only deputies, etc., but even their menial servants, are allowed to lord it over us.
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.
Listening in the courtroom, a 26-year-old Boston lawyer named John Adams found that Otis’s eloquence lit a fire in him. The moment is immortalized in a mural on the wall of the Massachusetts State House. Somewhere in those five hours were the seeds of the Fourth Amendment to the United States Constitution, as well as the importance of privacy to the life of that entire document. The concept of privacy was the reason they all fought the damn war in the first place.
All that being said, can folks please stop referring to the decision in Griswold v. Connecticut as having been "about contraception"? Griswold confirmed the existence of a right to privacy within the Constitution. That's everything. It's about marriage. It's about sex. It's about what we read. It's about how we communicate with each other. It's about the limits to search and seizure. It's about medical records and genetic information. It's about libraries and the internet. It’s about what we learn and how we learn it. It’s all tied in together in a fervent prayer to keep us all safe from, as Thomas Jefferson put it, “every form of tyranny over the mind of man.” As Supreme Court Justice Arthur Goldberg put it in his Griswold concurrence:
"...as the Ninth Amendment expressly recognizes, there are fundamental personal rights such as this one, which are protected from abridgment by the Government though not specifically mentioned in the Constitution.”
So, if Justice Clarence Thomas has his way, and this Supreme Court of dubious legitimacy decides to “reconsider” Griswold and all its progeny—and I make the odds of that no worse than 50-50—a lot more than pills and rubbers and diaphragms are on the line. So is the principle that we are entitled to the public expression of our private thoughts, and in that principle, we have the right to be as safe from intrusion as James Otis said those Boston smuggl…ah…merchants were safe against intrusions into their basements by agents of the Crown. Remember, also, as vigilantism among the populace becomes a vital part of law enforcement, that Otis warned us that giving our fellow citizens that power was to make tyrants of them all. Mr. Madison recognized that fundamental truth when he wrote to Thomas Jefferson in 1788:
I am sure that the rights of conscience, in particular, if submitted to public definition would be narrowed much more than they are likely to be by an assumed power.
They all knew. That was why they fought the damn war.