Friday, July 27, 2012
Thomas K. Clancy (West Virginia University College of Law) has posted The Importance of James Otis (Mississippi Law Journal, Vol. 82, 2012) on SSRN. Here is the abstract:
Historical analysis remains a fundamentally important tool to interpret the words of the Fourth Amendment and no historical event is more important that James Otis’ argument in the Writs of Assistance Case in 1761. The Writs case and the competing views articulated by the advocates continue to serve as a template in the never-ending struggle to accommodate individual security and governmental needs. In that case, James Otis first challenged British search and seizure practices and offered an alternative vision of proper search and seizure principles. No authority preceding Otis had articulated so completely the framework for the search and seizure requirements that were ultimately embodied in the Fourth Amendment. More fundamentally, Otis’ importance then and now stems not from the particulars of his argument; instead, he played and should continue to play an inspirational role for those seeking to find the proper accommodation between individual security and governmental needs. Otis proposed a framework of search and seizure principles designed to protect individual security. James Otis, his vision, and his legacy have become largely forgotten outside a small circle of Fourth Amendment scholars. This essay is a modest attempt to recall his importance for contemporary construction of the Fourth Amendment.