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The Constitution of the United States: Background material for the original, esp. the Bill of Rights?

The Constitution of the United States: Background material for the original, esp. the Bill of Rights?


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During the work and debate around the Constitution of the United States; where there much background-material like surveys, notes and minutes (from debates)? How much of such material have survived? I guess especially minutes from committee-meetings and the actual debate is of special interest.

I'm particular interested in the Bill of Rights, especially the 2nd amendment - how a strong militia is unnecessary for the security of the individual state, and how this depended on the citizen's right to own arms.

Are there any background material left that could clear-up what was most important for the founders; a militia to secure the state, or that the citizen could own arms (regardless of the state's security)?

I believe there are at least some information that have survived, in particular regarding how one representative was against the whole enumeration of rights, as he feared a future government would read it as "citizens have no rights except these", instead of "citizen have many/all rights, but we'll mention these in particular because they're so important" - which is the reason for the 9th amendment.


The minutes of the Constitutional Convention were suppressed; the participants agreed to never reveal what was said. Some people took notes, and some have survived. The best source is probably the Federalist papers, closely followed by the notes taken at the state ratifying conventions.

More than one representative opposed enumeration of rights. The chief opponent was Madison, who was also the man who proposed the Bill of Rights. That is the kind of story that happens only in history.

The best source I've found to combine and summarize all this is

Ratification: The People Debate the Constitution - a deep and insightful analysis of who said and thought what.

There is also a nice set of audio lectures by Jack Rakove available on iTunes; the last third of the lectures and the panel discussion touch on the topics you're interested in.

I don't remember a thorough discussion of the second amendment - the topic doesn't interest me. But that would be the place to start.


Bill of Rights: Primary Documents in American History

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Authors:
Mark Hall, Reference Specialist, Researcher and Reference Services Division

Ken Drexler, Reference Specialist, Researcher and Reference Services Division

Last Updated: August 19, 2019


The Constitutional Convention

A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk. One way that this was accomplished was to separate the power of government into three branches, and then to include checks and balances on those powers to assure that no one branch of government gained supremacy. This concern arose largely out of the experience that the delegates had with the King of England and his powerful Parliament. The powers of each branch are enumerated in the Constitution, with powers not assigned to them reserved to the States.

Much of the debate, which was conducted in secret to ensure that delegates spoke their minds, focused on the form that the new legislature would take. Two plans competed to become the new government: the Virginia Plan, which apportioned representation based on the population of each State, and the New Jersey plan, which gave each State an equal vote in Congress. The Virginia Plan was supported by the larger States, and the New Jersey plan preferred by the smaller. In the end, they settled on the Great Compromise (sometimes called the Connecticut Compromise), in which the House of Representatives would represent the people as apportioned by population the Senate would represent the States apportioned equally and the President would be elected by the Electoral College. The plan also called for an independent judiciary.

The founders also took pains to establish the relationship between the States. States are required to give “full faith and credit” to the laws, records, contracts, and judicial proceedings of the other States, although Congress may regulate the manner in which the States share records, and define the scope of this clause. States are barred from discriminating against citizens of other States in any way, and cannot enact tariffs against one another. States must also extradite those accused of crimes to other States for trial.

The founders also specified a process by which the Constitution may be amended, and since its ratification, the Constitution has been amended 27 times. In order to prevent arbitrary changes, the process for making amendments is quite onerous. An amendment may be proposed by a two-thirds vote of both Houses of Congress, or, if two-thirds of the States request one, by a convention called for that purpose. The amendment must then be ratified by three-fourths of the State legislatures, or three-fourths of conventions called in each State for ratification. In modern times, amendments have traditionally specified a time frame in which this must be accomplished, usually a period of several years. Additionally, the Constitution specifies that no amendment can deny a State equal representation in the Senate without that State’s consent.

With the details and language of the Constitution decided, the Convention got down to the work of actually setting the Constitution to paper. It is written in the hand of a delegate from Pennsylvania, Gouverneur Morris, whose job allowed him some reign over the actual punctuation of a few clauses in the Constitution. He is also credited with the famous preamble, quoted at the top of this page. On September 17, 1787, 39 of the 55 delegates signed the new document, with many of those who refused to sign objecting to the lack of a bill of rights. At least one delegate refused to sign because the Constitution codified and protected slavery and the slave trade.


Amdt4.1 Fourth Amendment: Historical Background

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.

Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the writs of assistance. But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience, 1 Footnote
Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B. Schwartz , The Bill of Rights: A Documentary History 199, 205–06 (1971) . there was also a rich English experience to draw on. Every man’s house is his castle was a maxim much celebrated in England, as Saman’s Case demonstrated in 1603. 2 Footnote
5 Coke’s Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604) . One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: The poorest man may in his cottage bid defiance to all the force 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 cannot enter—all his force dares not cross the threshold of the ruined tenement. A civil case of execution of process, Saman’s Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process. Most famous of the English cases was Entick v. Carrington , 3 Footnote
19 Howell’s State Trials 1029, 95 Eng. Rep. 807 (1705) . one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes’ polemical pamphlets attacking not only governmental policies but the King himself. 4 Footnote
See also Wilkes v. Wood , 98 Eng. 489 (C.P. 1763) Huckle v. Money , 95 Eng. Rep. 768 (K.B. 1763) , aff’d 19 Howell’s State Trials 1002, 1028 97 Eng. Rep. 1075 (K.B. 1765).

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive of all the comforts of society, and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature contrary to the genius of the law of England. 5 Footnote
95 Eng. Rep. 817, 818 (1705) . Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington , the Supreme Court has said, is a great judgment, one of the landmarks of English liberty, one of the permanent monuments of the British Constitution, and a guide to an understanding of what the Framers meant in writing the Fourth Amendment. 6 Footnote
Boyd v. United States , 116 U.S. 616, 626 (1886) .

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize prohibited and uncustomed goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. 7 Footnote
The arguments of Otis and others as well as much background material are contained in Quincy’s Massachusetts Reports , 1761–1772, App. I, pp. 395–540 , and in 2 Legal Papers of John Adams 106–47 (Wroth & Zobel eds., 1965) . See also Dickerson , Writs of Assistance as a Cause of the American Revolution , in The Era of the American Revolution: Studies Inscribed to Evarts Boutell Greene 40 (R. Morris, ed., 1939) . Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

The language of the provision that became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison’s introduced version provided The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized. 8 Footnote
1 Annals of Congress 434–35 (June 8, 1789) . As reported from committee, with an inadvertent omission corrected on the floor, 9 Footnote
The word secured was changed to secure and the phrase against unreasonable searches and seizures was reinstated. Id. at 754 (August 17, 1789). the section was almost identical to the introduced version, and the House defeated a motion to substitute and no warrant shall issue for by warrants issuing in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision. 10 Footnote
Id. It has been theorized that the author of the defeated revision, who was chairman of the committee appointed to arrange the amendments prior to House passage, simply inserted his provision and that it passed unnoticed. N. Lasson , The History and Development of the Fourth Amendment to the United States Constitution 101–03 (1937) .


Signing of the Constitution

Howard Chandler Christy's painting of the signing of the United States Constitution was commissioned in 1939 as part of the congressional observance of the Constitution's sesquicentennial. Completed in 1940, the 20-by-30-foot framed oil-on-canvas scene is among the best known images in the United States Capitol. It is on display in the east grand stairway of the House wing.

The painting depicts Independence Hall in Philadelphia on September 17, 1787. George Washington is the most prominent figure he stands on the platform next to Richard Spaight of North Carolina, who is signing the document. Eighty-one-year-old Benjamin Franklin is seated in the center, with Alexander Hamilton leaning toward him, while James Madison appears farther to the right. In comparison to many of the historical paintings in the Capitol, the colors are bright and airy, and the brushwork is almost impressionistic in places. Christy used light and shadow to unify the individual portraits.

To achieve the greatest possible accuracy, Christy searched for portraits by the best artists of the late 18th and early 19th centuries, such as Charles Willson Peale and Gilbert Stuart. He located portraits of 37 out of the 39 delegates and the Secretary, William Jackson. Christy took some liberties in composing his scene: John Dickinson, whose signature was added by proxy, is included, and three men who were present but did not sign are not shown. He obscured the faces of the two signers (Thomas FitzSimons and Jacob Broom) of whom no portraits were found. He also researched authentic costumes, including a pair of George Washington’s breeches borrowed from the Smithsonian Institution, and he depicted the furniture and artifacts used by the delegates. The books beside Franklin’s chair were part of Thomas Jefferson’s library Christy borrowed them from the Rare Book Room of the Library of Congress and included them in the scene to acknowledge Jefferson’s importance to the Constitution. He made the sketch for the painting in Independence Hall in September, at the same time of day as the signing, to show accurately the angle of sunlight in the room with its glass chandelier. The artist said that the flags he depicted are the Stars and Stripes, one from a Maryland dragoon regiment, and regimental colors from Massachusetts and New Hampshire.

Representative Sol Bloom, the director general of the United States Constitution Sesquicentennial Commission, first proposed that the painting be commissioned in 1937 as part of the 150th anniversary of the Constitution. Howard Chandler Christy, one of the most popular illustrators and portrait painters of the time, had created a historically accurate scene of the signing for the Commission to reproduce. His first small painting included a maiden representing "We the People" and numerous other symbolic figures, but these were eliminated in the final version. In the three years during which Representative Bloom worked with Christy to locate early portraits of the signers and to fill in historical details, he became aware that there was no scene of the signing of the Constitution in the U.S. Capitol, and few other paintings in existence included all the signers.

A Joint Resolution was first introduced in the House in 1937 to pay Christy $35,000 to paint Signing of the Constitution. Heated debate arose, however: some members of Congress were in favor of memorializing one of the greatest events in American history, but others held deep reservations about spending the funds for art during a period of severe economic depression, and the bill did not pass. The Joint Resolution failed again in 1938.

Finally, in 1939, a modified resolution, P.R. 11, 76th Congress, was accepted to set up a commission consisting of the Vice President, the Speaker of the House, and the Architect of the Capitol to employ an artist to paint a 20-by-30-foot scene of the signing at a price of $30,000. The contract with Christy was signed on July 24, 1939. On October 29, 1940, Congress approved $1,500 for the purchase of a frame, which was accepted by the Joint Committee on the Library on December 26, 1940.

The huge 18-by-26-foot canvas was painted in the sail loft of the Washington Navy Yard, where Christy at times used enlisted men as models for the figures. After five years of research and seven months of painting, the canvas was dedicated in May 1940 in the Rotunda of the Capitol, where it was on view for 16 months. The 20-by-30-foot frame, made in nine sections including the central eagle and crest, was hand carved and given a gold-leaf finish by Azeglio Pancani of New York. After much debate about where it could be hung, another painting was moved and the Christy in its frame was installed in the east grand stairway of the House, where it remains today.

In 1967 the painting was vandalized by being slashed along the bottom the canvas had to be removed from the stretcher to be transported for repair in 1968. The fills made then were apparent, however, and over time dust, grime and yellowed varnish obscured the original brilliant colors. In 2006 the painting was cleaned and conserved in place by conservators working from a large four-level scaffold from mid-October through December. The cleaning of areas that had looked dull brown revealed lively expressions detailed costumes and impressionist colors, such as lavender and pink, applied with scintillating brushwork. The vandalized area was given special attention and is now barely visible. Finally, a new coating of clear protective varnish was applied.

The frame, which had been covered with bronze powder paint in 1968, was taken apart in sections and conserved off site. It was cleaned and repaired, regilded with 22-karat gold leaf similar to the color of the original metal leaf, and toned to complement the painting. The gold leaf will never tarnish and should remain beautiful for generations to come.


The Formation of the Constitution

The creation of the United States Constitution-John Adams described the Constitutional Convention as "the greatest single effort of national deliberation that the world has ever seen"-was a seminal event in the history of human liberty. The story of that creation in the summer of 1787 is itself a significant aspect in determining the meaning of the document.

In June 1776, amid growing sentiment for American independence and after hostilities with the British army had commenced at Lexington, Massachusetts, Richard Henry Lee of Virginia introduced a resolution in the Second Continental Congress for the colonies to collectively dissolve political connections with Great Britain, pursue foreign alliances, and draft a plan of confederation. These actions resulted in the Declaration of Independence of 1776, the Franco-American Alliance of 1778, and the Articles of Confederation, which were proposed in 1777 and ratified in 1781.

From its conception, the inherent weaknesses of the Articles of Confederation made it awkward at best and unworkable at worst. Each state governed itself through elected representatives, and the state representatives in turn elected a weak national government. There was no independent executive, and the congress lacked authority to impose taxes to cover national expenses. Because all thirteen colonies had to ratify amendments, one state's refusal prevented structural reform nine of thirteen states had to approve important legislation, which meant five states could thwart any major proposal. And although the congress could negotiate treaties with foreign powers, all treaties had to be ratified by the states.

The defects of the Articles became more and more apparent during the "critical period" of 1781-1787. By the end of the war in 1783, it was clear that the new system was, as George Washington observed, "a shadow without the substance." Weakness in international affairs and in the face of continuing European threats in North America, the inability to enforce the peace treaty or collect enough taxes to pay foreign creditors, and helplessness in quelling domestic disorder, such as Shays's Rebellion-all intensified the drive for a stronger national government.

If that were not enough, the Americans faced an even larger problem. Absolutely committed to the idea of popular rule, they knew that previous attempts to establish such a government had almost always led to majority tyranny-that of the overbearing many disregarding the rights of the few. In The Federalist No. 10, James Madison famously described this as the problem of faction, the latent causes of which are "sown in the nature of man." Previous solutions usually rendered government weak, and thus susceptible to all the problems with which the Founders were most concerned. This was the case in the individual states, which, dominated by their popular legislatures, routinely violated rights of property and contract and limited the independence of the judiciary.

In 1785, representatives from Maryland and Virginia, meeting at George Washington's Mount Vernon to discuss interstate trade, requested a meeting of the states to discuss trade and commerce generally. Although only five states met at Annapolis in 1786, James Madison and Alexander Hamilton used the failed conference to issue a clarion call for a general convention of all the states "to render the constitution of government adequate to the exigencies of the Union." After several states, including Virginia and Pennsylvania, chose delegates for the meeting, the congress acquiesced with a narrower declaration that the "sole and express purpose" of the upcoming Convention would be to revise the Articles of Confederation.

The next year, from May 25 to September 17, 1787, state delegates met in what is now called Independence Hall, in Philadelphia, Pennsylvania-as it says in the Constitution's Preamble-to "form a more perfect Union." It was an impressive group. Not only were there leaders in the fight for independence, such as Roger Sherman and John Dickinson, and leading thinkers just coming into prominence, such as Madison, Hamilton, and Gouverneur Morris, but also already-legendary figures, such as Washington and Benjamin Franklin. Every state was represented, except for one: Rhode Island, fearful that a strong national government would injure its lucrative trade, opposed revising the Articles of Confederation and sent no delegates. Patrick Henry and Samuel Adams, both of whom opposed the creation of a strong central government, did not attend. Notably absent were John Jay, who was then U.S. secretary of foreign affairs, and John Adams and Thomas Jefferson, who were out of the country on government missions. Nonetheless, Jefferson described the gathering as "an assembly of demigods."

The Constitutional Convention

As its first order of business, the delegates unanimously chose Washington as president of the Convention. Having initially hesitated in attending the Convention, once decided, Washington pushed the delegates to adopt "no temporizing expedient" but instead to "probe the defects of the Constitution to the bottom, and provide radical cures." While they waited in Philadelphia for a quorum, Washington presided over daily meetings of the Virginia delegation (composed of Washington, George Mason, George Wythe, John Blair, Edmund Randolph, James McClurg, and James Madison) to consider strategy and the reform proposals that would become the plan presented at the outset of the Convention. Although he contributed to formal debate only once at the end of the Convention, Washington was actively involved throughout the three-and-a-half-month proceedings.

There were three basic rules of the Convention: voting was to be by state, with each state, regardless of size or population, having one vote proper decorum was to be maintained at all times and the proceedings were to be strictly secret. To encourage free and open discussion and debate, the Convention shifted back and forth between full sessions and meetings of the Committee of the Whole, a parliamentary procedure that allowed informal debate and flexibility in deciding and reconsidering individual issues. Although the Convention hired a secretary, the best records of the debate-and thus the most immediate source of the intended meaning of the clauses-are the detailed notes of Madison, which, in keeping with the pledge of secrecy, were not published until 1840.

As soon as the Convention agreed on its rules, Edmund Randolph of the Virginia delegation presented a set of fifteen resolutions, known as the Virginia Plan, which set aside the Articles of Confederation and created in its stead a supreme national government with separate legislative, executive, and judicial branches. This was largely the work of James Madison, who came to the Convention extensively prepared and well-versed in the ancient and modern history of republican government. (See his memorandum on the "Vices of the Political System of the United States.") The delegates generally agreed on the powers that should be lodged in a national legislature, but disagreed on how the states and popular opinion should be reflected in it. Under the Virginia Plan, population would determine representation in each of the two houses of Congress.

To protect their equal standing, delegates from less-populous states rallied around William Paterson's alternative New Jersey Plan to amend the Articles of Confederation, which would preserve each state's equal vote in a one-house Congress with slightly augmented powers. When the delegates rejected the New Jersey Plan, Roger Sherman proffered what is often called "the Great Compromise" (or the Connecticut Compromise, after Sherman's home state) that the House of Representatives would be apportioned based on population and each state would have an equal vote in the Senate. A special Committee of Eleven (one delegate from each state) elaborated upon the proposal, and then the Convention adopted it. As a precaution against having to assume the financial burdens of the smaller states, the larger states exacted an agreement that revenue bills could originate only in the House, where the more populous states would have greater representation.

In late July, a Committee of Detail (composed of John Rutledge of South Carolina, Edmund Randolph of Virginia, Nathaniel Gorham of Massachusetts, Oliver Ellsworth of Connecticut, and James Wilson of Pennsylvania) reworked the resolutions of the expanded Virginia Plan into a draft Constitution the text now included a list of eighteen powers of Congress, a "necessary and proper" clause, and a number of prohibitions on the states. Over most of August and into early September, the Convention carefully worked over this draft and then gave it to a Committee of Style (William Johnson of Connecticut, Alexander Hamilton of New York, Gouverneur Morris of Pennsylvania, James Madison of Virginia, and Rufus King of Massachusetts) to polish the language. The notable literary quality of the Constitution, most prominently the language of the Preamble, is due to Morris's influence. The delegates continued revising the final draft until September 17 (now celebrated as Constitution Day), when delegates signed the Constitution and sent it to the Congress of the Confederation, and the Convention officially adjourned.

Some of the original fifty-five delegates had returned home over the course of the summer and were not present at the Convention's conclusion. Of the forty-one that were, only three delegates-Edmund Randolph and George Mason of Virginia and Elbridge Gerry of Massachusetts-opposed the Constitution and chose not to sign. Randolph (who had introduced the Virginia Plan) thought in the end that the Constitution was not sufficiently republican, and was wary of creating a single executive. Mason and Gerry (who later supported the Constitution and served in the First Congress) were concerned about the lack of a declaration of rights. Despite these objections, George Washington thought that it was "little short of a miracle" that the delegates had agreed on a new Constitution. Thomas Jefferson, who was also concerned about the lack of a bill of rights, nevertheless wrote that the Constitution "is unquestionably the wisest ever yet presented to men."

On September 28, Congress sent the Constitution to the states to be ratified by popular conventions. See Article VII (Ratification). Delaware was the first state to ratify the Constitution, on December 7, 1787 the last of the thirteen original colonies to ratify was Rhode Island, on May 29, 1790, two-and-a-half years later. It was during the ratification debate in the state of New York that Hamilton, Madison, and John Jay wrote a series of newspaper essays under the pen name of Publius, later collected in book form as The Federalist, to refute the arguments of the Anti-Federalist opponents of the proposed Constitution. With the ratification by the ninth state-New Hampshire, on June 21, 1788-Congress passed a resolution to make the new Constitution operative, and set dates for choosing presidential electors and the opening session of the new Congress.

There had been some discussion among the delegates of the need for a bill of rights, a proposal that was rejected by the Convention. The lack of a bill of rights like that found in most state constitutions, however, became a rallying cry for the Anti-Federalists, and the advocates of the Constitution (led by James Madison) agreed to add one in the first session of Congress. Ratified on December 15, 1791, the first ten amendments-called the Bill of Rights-include sweeping restrictions on the federal government and its ability to limit certain fundamental rights and procedural matters. The Ninth and Tenth Amendments briefly encapsulate the twofold theory of the Constitution: the purpose of the Constitution is to protect rights, which stem not from the government but from the people themselves and the powers of the national government are limited to only those delegated to it by the Constitution on behalf of the people.

Auxiliary Precautions

In addition to the provisions of the document, three important unstated mechanisms are at work in the Constitution: the extended Republic, the separation of powers, and federalism. The Founders believed that citizen virtue was crucial for the success of republican government but they knew that passion and interest were permanent parts of human nature and could not be controlled by parchment barriers alone. "A dependence on the people is, no doubt, the primary control on the government," Madison explained in The Federalist No. 51, "but experience has taught mankind the necessity of auxiliary precautions." Rather than hoping for the best, the Founders designed a system that would harness these opposite and rival interests to supply "the defect of better motives."

The effect of representation-of individual citizens being represented in the government rather than ruling through direct participatory democracy-is to refine and moderate public opinion through a deliberative process. Extending the Republic, literally increasing the size of the nation, would take in a greater number and variety of opinions, making it harder for a majority to form on narrow interests contrary to the common good. The majority that did develop would be more settled and, by necessity, would encompass (and represent) a wider diversity of opinion. This idea that bigger is better reversed the prevailing assumption that republican government could work only in small states.

The Founders also knew, again as Madison explained in The Federalist No. 48, that "the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." In order to distribute power and prevent its accumulation, they created three separate branches of government, each performing its own functions and duties and sharing a few powers-as when the President shares the legislative power through the veto-so that they would have an incentive to check each other. Jefferson called the "republican form and principles of our Constitution" and "the salutary distribution of powers" in the Constitution the "two sheet anchors of our Union." "If driven from either," he predicted, "we shall be in danger of foundering."

And although national powers were clearly enhanced by the Constitution, the federal government was to exercise only delegated powers, the remainder being reserved to the states or the people. Despite the need for additional national authority, the Framers remained distrustful of government in general and of a centralized federal government in particular. "The powers delegated by the proposed Constitution to the federal government are few and defined," Madison wrote in The Federalist No. 45. "Those which are to remain in the State governments are numerous and indefinite." To give the states more leverage against the national government, equal state representation in the Senate was blended into the national legislature (and guaranteed in Article V). "This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance," Hamilton argued at the New York state ratifying convention. "It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them."

A Momentous Work

When the Constitutional Convention assembled on the morning of September 17, 1787, the completed document was read aloud to the delegates for one last time. Thereupon Benjamin Franklin, the eighty-one-year-old patriarch of the group, rose to speak. He declared his support for the new Constitution-"with all its faults, if they are such"-because he thought a new government was necessary for the young nation. Franklin continued:

I doubt too whether any other convention we can obtain may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an Assembly can a perfect production be expected? It therefore astonishes me, Sir, to find this system approaching so near to perfection as it does and I think it will astonish our enemies. . . . Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.

As the delegates came forward, one at a time, to sign their names to the final document, Madison recorded Franklin's final comment, just before the Constitutional Convention was dissolved. Referring to the sun painted on the back of Washington's chair, Franklin said that he had

often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting. But now at length I have the happiness to know that it is a rising and not a setting Sun.

"The business being thus closed," George Washington recorded in his private diary, the delegates proceeded to City Tavern, where they

dined together and took a cordial leave of each other after which I returned to my lodgings, did some business with and received the papers from the Secretary of the Convention, and retired to meditate on the momentous work which had been executed. . . .


Arrests and Other Detentions.

That the Fourth Amend-ment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice Marshall63 and is now established law.64 At common law, warrantless arrests of persons who had committed a breach of the peace or a felony were permitted,65 and this history is reflected in the fact that the Fourth Amendment is satisfied if the arrest is made in a public place on probable cause, regardless of whether a warrant has been obtained.66 However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police officers must have a warrant.67

The Fourth Amendment applies to “seizures” and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants, or probable cause in instances in which warrants are not required.68 Some objective justification must be shown to validate all seizures of the person,69 including seizures that involve only a brief detention short of arrest, although the nature of the detention will determine whether probable cause or some reasonable and articulable suspicion is necessary.70

The Fourth Amendment does not require an officer to consider whether to issue a citation rather than arresting (and placing in custody) a person who has committed a minor offense—even a minor traffic offense. In Atwater v. City of Lago Vista,71 the Court, even while acknowledging that the case before it involved “gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment,” refused to require that “case-by-case determinations of government need” to place traffic offenders in custody be subjected to a reasonableness inquiry, “lest every discretionary judgment in the field be converted into an occasion for constitutional review.”72 Citing some state statutes that limit warrantless arrests for minor offenses, the Court contended that the matter is better left to statutory rule than to application of broad constitutional principle.73 Thus, Atwater and County of Riverside v. McLaughlin74 together mean that—as far as the Constitution is concerned—police officers have almost unbridled discretion to decide whether to issue a summons for a minor traffic offense or whether instead to place the offending motorist in jail, where she may be kept for up to 48 hours with little recourse. Even when an arrest for a minor offense is prohibited by state law, the arrest will not violate the Fourth Amendment if it was based on probable cause.75

Until relatively recently, the legality of arrests was seldom litigated in the Supreme Court because of the rule that a person detained pursuant to an arbitrary seizure—unlike evidence obtained as a result of an unlawful search—remains subject to custody and presentation to court.76 But the application of self-incrimination and other exclusionary rules to the states and the heightening of their scope in state and federal cases alike brought forth the rule that verbal evidence, confessions, and other admissions, like all derivative evidence obtained as a result of unlawful seizures, could be excluded.77 Thus, a confession made by one illegally in custody must be suppressed, unless the causal connection between the illegal arrest and the confession had become so attenuated that the latter should not be deemed “tainted” by the former.78 Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed.79


U.S. Constitution

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The Constitution is the base for all laws in the United States.

The Constitution is the highest law in the United States. All other laws come from the Constitution. It says how the government works. It creates the Presidency. It creates the Congress. It creates the Supreme Court. Each state also has a constitution. The constitutions of the states are their highest law for that state — but the United States Constitution is higher.

The Constitution can be changed. The Constitution is changed by an "amendment." Among the amendments is a list of the rights of the people. By listing these rights, they are made special. It is illegal for the government to violate those rights. As of 2006, there are 27 amendments. Not all of them involve rights, but many do. The first ten amendments are special. They are called the Bill of Rights.


The Framers worked for four months over the course of a hot summer in Philadelphia to craft the Constitution.

The Constitution was written in 1787. Yes, it is over 200 years old. We actually have old copies of what was created. The master copies are stored at the National Archives in Washington D.C. We also have pictures of the Constitution on this site.

From May to September 1787 a group of men known as the Framers met. The Framers talked about what should be in the Constitution. The United States was a brand new country. The United States had a government that did not work very well. The Framers met to find a new way of running the country. This meeting is called The Convention. Some of the Framers are famous to us today. They include James Madison, Ben Franklin, and George Washington.

At that time there were only 13 states. The men came from all the states except Rhode Island. Each state had ideas for the new government. The Framers had many debates. They talked a lot. They make a lot of speeches. By talking about it, they came up with a plan that everyone could agree with. They had to have a lot of compromises. Only by agreeing could all the arguments be worked out. Ben Franklin said the he was not sure if the plan was perfect. He said that it was probably as perfect as it could be.


This map of the United States was published in 1784 by William Faden.

After the Convention, the Constitution had to be approved. Actually, only nine states had to agree to, or ratify, the Constitution. But everyone wanted all 13 states to agree. Two states took a long time to decide to agree. These states were Rhode Island and North Carolina. In the end, they did agree. Once the first nine states agreed, we say the Constitution was "ratified." New Hampshire was the ninth state to ratify.

When the Constitution was written, the Framers knew their creation was not perfect. They knew that other people would have good ideas for the Constitution. They wanted to be sure that it wasn't too hard to make changes. They also wanted to be sure that it wasn't too easy.

The Framers added an amendment process. An amendment to the Constitution is a change that can add to the Constitution or change an older part of it.

Originally, some people did not want to ratify the Constitution. One big reason was that it did not have a bill of rights. A bill of rights is a list of rights that belong to the people. The government is not allowed to break these rights. Some of these rights might sound familiar: the right of free speech the right to practice your own religion the right to be silent if you are arrested. The original Constitution had no bill of rights. Many of the Framers did not think it was needed. But many people wanted one. So, promises were made to add one, using the amendment process.

Soon, the new government started meeting. Congress proposed the Bill of Rights. A list of twelve changes was sent to the states. In 1791, ten of those changes were agreed to by the states. The ten changes were added to the Constitution. These ten changes are called the "Bill of Rights."

Other changes to the Constitution are discussed below. The last change to the Constitution was made in 1992. The 27th Amendment is actually one of the two left-over amendments from 1791. It is very unusual for an amendment to take that long to be accepted, but it is possible. Some, like the 26th Amendment, are accepted very quickly, in just 100 days. Most, though, take a little over a year to be ratified.


This image of a black slave appealed to the humanity of free whites, asking, "Am I not a man and a brother?" The image accompanied the antislavery poem "Our Countrymen in Chains" by John Greenleaf Whittier, published in 1837.

In 1787, most of the black people in America were slaves. A slave is someone who is owned by someone else. Today, there are no legal slaves in America. It was common in 1787. As time went by, more people thought that slavery was wrong. Most of the people who wanted to end slavery were from the states in the north. They were called abolitionists. Most of the people who wanted to keep slavery were from the states in the south. Slavery was important in the South. A lot of how the people in the south made money involved slaves. Slaves were worth money. Slaves picked their crops, like cotton and tobacco.

The people in the North wanted to end slavery. They said it was an important step for America. The people of the South were afraid of losing slavery. They were afraid of losing business. They thought that having slavery was important for each state choose on its own. When President Lincoln was elected, the South got very angry. Lincoln had said he didn't like slavery. Most of the Southern states decided to break away from the United States. They created their own country. It was called the Confederate States of America. The USA did not agree that the states of the CSA could break away. The Civil War followed. The USA won that war. It was a terrible war. Many people died. Many buildings were destroyed.

Something good did happen, though. Slavery ended. With the 13th Amendment, slavery was made illegal. The 14th Amendment said that every person born in the United States was a full citizen. Even former slaves were full citizens. The 15th Amendment made sure that black people could vote.

These changes protected many freedoms. But it took a long time to change peoples' minds. Many people still did not like black people. They thought that white people were better. For 100 years, some laws reflected this feeling. Today, these laws are also gone. Most people do not think that anyone is better than someone else just because of their color.


A portrait of Elizabeth Cady Stanton and Susan B. Anthony. Stanton and Anthony were leaders in the "suffragette" movement, the movement to give the vote to women.

At the beginning, we talked about the men who were the Framers. For a long time, most of the people who shaped the country were men. This is not because women could not help. It is not because women did not want to help. Instead, men held all the positions of power. Men were the Presidents. Men were the members of Congress. Men were the mayors. Men were the owners of companies. Women had very little chance to advance in life. Today, many women like taking care of the home. Today, though, this is a choice. Before, this was the only option for a woman.

Women had no role in government. They had no role in politics. They were homemakers. They took care of their husbands or fathers. They took care of kids. Most men did not feel that women should vote. There were actually laws that said women could not vote. Many people decided this was wrong and many women and some men fought against it. Finally, in 1920, the 19th Amendment was passed. It says that women can vote in all elections.

Today, women are active in government and politics. Being able to vote is a big part of that. Without the ability to vote, women had no voice. Without a voice, there was no reason for politicians to care what women think. They did not care about issues that are important to women. Once women could vote, some got very interested in politics. Some women ran for office. There have not yet been any women as President. However, it is only a matter of time before the first woman President is elected.


The Bill of Rights protects the freedom of, and from, religion.

We already talked about the Bill of Rights. It was passed because some people were afraid that the government would have too much power. They were afraid that some important things could be made illegal. They wanted to be sure to keep those things legal.

For example, you can say whatever you want about the President. You can say that you don't like his hair. You can say you don't like his voice. You can say you don't like the war in Iraq. You can say you don't like his tax ideas. It seems normal to us to be able to say these things. We can criticize the President. We can criticize a member of Congress. We can criticize a mayor. We can say what things they do that we don't like. This is only possible because of the Right of Free Speech. The Bill of Rights protects Free Speech.


The freedom to express yourself, in speech, in writing, and in protest, is also protected by the Bill of Rights.

Imagine if there was no right to free speech. A law could be passed that says that if you criticize the President's hair, you can spend a day in jail. Or worse, criticizing the President's taxes can get you a year in jail. These are the kinds of laws that the Framers were afraid of. The Bill of Rights protects us from such laws. We cannot be put in jail because of our opinions.

The Bill of Rights protects a lot of other freedoms. For example, you can believe in any religion you want. The government cannot force you to believe in something. You cannot be forced to house soldiers in your home. The police cannot come into your home without a good reason. The police may not take your papers without reason. The police cannot force you testify against yourself in court. In fact, the police cannot force you to tell them anything at all. This is called the "right to remain silent". And you cannot be given unusual punishments. You cannot be given twenty years in jail for speeding.


An interior view of the House of Representatives, the "lower" house of the United States Congress. The House is known as the "peoples' house" because since the beginning, the members were elected by the people.

The Constitution sets up the government. It is split into three branches. The first is the Legislative. The second is the Executive. The third is the Judiciary. Each one has its own role in how the law is made and used.

The Legislature makes the law. The legislature is called the Congress. It is split into two parts. The first is the House of Representatives. The second is the Senate.

Each Representative comes from a district in one of the states. That person's job is to represent the people in that district. The people elect the Representative. They have the right to tell him or her how they feel about issues. There are 435 Representatives. Bigger states have more Representatives. Every state has at least one.

The Senate is made up of 100 Senators. There are two Senators from each state. The people elect Senators. Senators should represent the interests of all of the people.

When the Congress wants to pass a law, both the House and the Senate must agree to the exact same law. If they cannot agree, then the law cannot pass.


A Presidential bill-signing ceremony. In this image, Lyndon Johnson is signing the Medicare Bill in 1965, as former President Harry Truman looks on.

The role of the Executive is mainly to make sure the law is carried out. The President heads the Executive. The Executive also includes the Vice President. The Secretaries of all the departments are also in the Executive. One department is the Department of Homeland Security. Another is the Department of Education. And one more is the Department of Defense.

Before a law becomes a law, the President must agree to it. If he does not agree, he rejects, or vetoes, the law. When he vetoes a law, he sends it back to the Congress. Congress can then try to pass the law again. The President can also refuse to sign a law — if he does, it will become a law any way. The government has lots of checks and balances. This is one example of the checks and balances. The Congress must pass laws the President will agree to. The President is accountable for his decisions regarding laws.

The last branch is the Judiciary. This includes all the federal courts, all the way up to the Supreme Court. States have their own court systems, too. The state courts are under the national courts. The role of the Judiciary is to interpret the law.

The law might say, "It is illegal to break into someone's home." If someone is caught breaking into a home, the courts will ask several questions. First, can the government make this illegal? If it cannot, the law is called "unconstitutional." Such laws are invalid. Next, the court will ask if the person is actually guilty. Usually, a jury will find someone guilty or not guilty. Sometimes just a judge decides this.

A trial by jury is a right. It means that other people from your area will decide if you broke the law. Sometimes juries, and courts, make mistakes. If someone is found guilty, they can "appeal." There is a set of special courts set up for appeals. The last court of appeal is the Supreme Court. Whatever the Supreme Court says is the end. There is no appeals court higher than the Supreme Court.

This page is a very basic introduction to the Constitution. It also talks about some of the topics that surround it. There are lots of good books in your local library, too. They will let you get a lot more detail. This site also has a lot of good pages that have more detail. See the list of links below for some of these pages.

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United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the writs of assistance. But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience, 1 there was also a rich English experience to draw on.

“Every man's house is his castle" was a maxim much celebrated in England, as Saman's Case demonstrated in 1603. 2 A civil case of execution of process, Saman's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington, 3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies but the King himself. 4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive of all the comforts of society, and the issuance of a warrant for the seizure of all of a person's papers rather than only those alleged to be criminal in nature contrary to the genius of the law of England. 5 Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized.

Entick v. Carrington, the Supreme Court has said, "is a great judgment, one of the landmarks of English liberty, one of the permanent monuments of the British Constitution, and a guide to an understanding of what the Framers meant in writing the Fourth Amendment." 6

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize prohibited and uncustomed goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, the opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. 7 Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

The language of the provision that became the Fourth Amendment underwent some modest changes on its passage through Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison's introduced version provided The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized. 8 As reported from the committee, with an inadvertent omission corrected on the floor, 9 the section was almost identical to the introduced version, and the House defeated a motion to substitute and no warrant shall issue for by warrants issuing in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision. 10

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved around the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment's two clauses must be read together to mean that the only searches and seizures which are reasonable are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under a warrant must comply with the second clause but that there are reasonable searches under the first clause that need not comply with the second clause. 11 This issue has divided the Court for some time, has seen several reversals of precedents and is important for the resolution of many cases. It is a dispute that has run most consistently throughout the cases involving the scope of the right to search incident to arrest. 12 Although the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

More on the Fourth Amendment

Footnotes

1. Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B. Schwartz, The Bill of Rights: A Documentary History 199, 205–06 (1971).

2. 5 Coke's Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: The poorest man may in his cottage bid defiance to all the force 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 cannot enter—all his force dares not cross the threshold of the ruined tenement.

3. 19 Howell's State Trials 1029, 95 Eng. Rep. 807 (1705).

4. See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763) Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763), aff'd 19 Howell's State Trials 1002, 1028 97 Eng. Rep. 1075 (K.B. 1765).

5. 95 Eng. Rep. 817, 818 (1705).

7. The arguments of Otis and others as well as much background material are contained in Quincy's Massachusetts Reports, 1761–1772, App. I, pp. 395–540, and in 2 Legal Papers of John Adams 106–47 (Wroth & Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of the American Revolution, in The Era of the American Revolution: Studies Inscribed to Evarts Boutell Greene 40 (R. Morris, ed., 1939).

8. 1 Annals of Congress 434–35 (June 8, 1789).

9. The word secured was changed to secure and the phrase against unreasonable searches and seizures was reinstated. Id. at 754 (August 17, 1789).

10. Id. It has been theorized that the author of the defeated revision, who was chairman of the committee appointed to arrange the amendments prior to House passage, simply inserted his provision and that it passed unnoticed. N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 101–03 (1937).


History and Scope of the Amendment

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.

Annotations

History.—Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the “writs of assistance.” But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience, 1 there was also a rich English experience to draw on. “Every man’s house is his castle” was a maxim much celebrated in England, as Saman’s Case demonstrated in 1603. 2 A civil case of execution of process, Saman’s Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process. Most famous of the English cases was Entick v. Carrington, 3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes’ polemical pamphlets attacking not only governmental policies but the King himself. 4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive “of all the comforts of society,” and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature “contrary to the genius of the law of England.” 5 Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a “great judgment,” “one of the landmarks of English liberty,” “one of the permanent monuments of the British Constitution,” and a guide to an understanding of what the Framers meant in writing the Fourth Amendment. 6

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize “prohibited and uncustomed” goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. 7 Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

1 Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, in the drafting of which Samuel Adams took the lead. 1 B. Schwartz, The Bill Of Rights : A Documentary History 199, 205–06 (1971).

2 5 Coke’s Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: “The poorest man may in his cottage bid defiance to all the force 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 cannot enter—all his force dares not cross the threshold of the ruined tenement.”

3 19 Howell’s State Trials 1029, 95 Eng. 807 (1705).

4 See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763) Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763), aff’d 19 Howell’s State Trials 1002, 1028 97 Eng. Rep. 1075 (K.B. 1765).

6 Boyd v. United States, 116 U.S. 616, 626 (1886).

7 The arguments of Otis and others as well as much background material are contained in Quincy’s Massachusetts Reports, 1761–1772, App. I, pp. 395–540, and in 2 Legal Papers Of John Adams 106–47 (Wroth & Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of the American Revolution, in The Era Of The American Revolution : Studies Inscribed To Evarts Boutell Greene 40 (R. Morris, ed., 1939).


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