Remembering the Third of July

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BradSmith150x225Amid the current public debates about government surveillance, this is a good day to step back and remember the Third of July.

Of course, the first question you might ask is, what happened on the Third of July?

Many Americans will recall, of course, that it was in Philadelphia at Independence Hall on July 2, 1776, that the colonies voted for their independence. And then it was two days later on July 4 that our Founders signed the Declaration of Independence.

But on the day in between, on July 3, 1776, something interesting happened as well.

‘The commencement of the controversy’

It was on that morning that John Adams got up in Philadelphia and, before walking over to Independence Hall, wrote a letter to his wife Abigail, who was at home in Massachusetts. He used that letter to reflect in part on what he thought had started it all, “the commencement of the controversy” that had led to the American Revolution.

Adams traced the Revolution to a specific dispute that was argued in court in Boston in 1761 by James Otis. The case was all about one issue. It concerned the ability of the British Government to use what was called a general warrant or writ of assistance to go from house to house to look for customs violations without any probable cause that there existed within any evidence of a crime.

Otis argued that this was a fundamental violation of civil liberties, calling it “the worst instance of arbitrary power.”

Adams, as it had turned out, was in the courtroom the day that Otis made his argument. At that time, he was 25 years old, not yet working as a lawyer. Nearer the end of his life, Adams would still remember Otis’ argument and write that it had “breathed into this nation the breath of life.” He would say to the day he died that it was that day, that case, that courtroom, and this issue that set this country on a course for independence.

It would take 13 long years after the Declaration of Independence was signed to realize the principle for which Otis had argued so passionately. As the first Congress met in New York in 1789, James Madison introduced his proposal for a Bill of Rights. As we know, it included what became the Fourth Amendment, guaranteeing that the people would be secure in their “persons, houses, papers, and effects” from “unreasonable searches and seizures,” including the use of general warrants.

When some in Congress challenged the need for a Bill of Rights, Madison defended the concept in part by taking them back to Otis’ argument in Boston. Madison explained that a government that had the authority to protect public safety and to collect revenue, and that had the authority under the Constitution to do everything that was “necessary and proper” to fulfill those responsibilities, also needed to have limits. And one of the needed limits to which Madison referred was for people to be protected from unreasonable government searches.

An issue that remains relevant today

Microsoft Executive Vice President and General Counsel Brad Smith speaks at The Brookings Institution, June 24, 2014

I’ve recounted this story in a few recent speeches in New York and Washington, including last Tuesday at the Brookings Institution. A day later last week, I was delighted to read the Supreme Court’s opinion in Riley v. California, which concluded that the authorities must obtain a warrant based upon specific probable cause before searching an arrestee’s cell phone. And it was notable to read one of the concluding paragraphs in the Court’s opinion, written by Chief Justice Roberts. He wrote:

“Our cases have recognized that the Fourth Amendment was the founding generation’s response to the revised ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that ‘[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.’ According to Adams, Otis’s speech was ‘the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.’”

Chief Roberts then connected the issues of the Revolution to the innovations of our own day. He referred to the power of a modern cell phone and wrote that “the fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

Well said. A principle worth fighting to attain is worth standing up to defend.

So before we finish our plans for tomorrow to watch fireworks and celebrate what happened on July 4, we should reflect on what happened on the Third of July as well. It speaks to the issues of our day.

About the Author

General Counsel & Executive Vice President, Legal and Corporate Affairs, Microsoft

Brad Smith is Microsoft's General Counsel and Executive Vice President of Legal and Corporate Affairs. He leads the company's Department of Legal and Corporate Affairs (LCA), which has approximately 1,100 employees located in 55 countries. Mr. Smith is responsible for the company's legal work, its intellectual property portfolio and patent licensing business as well as its government affairs and philanthropic work. He also serves as Microsoft's corporate secretary and its chief compliance officer. Mr. Smith currently co-chairs the board of directors of Kids in Need of Defense (KIND) and is the chair-elect of the Leadership Council on Legal Diversity. In Washington state, Mr. Smith has served as chair of the Washington Roundtable, a leading Washington state-based business organization, and he has advanced several statewide education initiatives.