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By Tom Shroder
Sunday, February 1, 2009

One of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle ...

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-- James Otis, 1761

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...

-- Fourth Amendment to the Constitution, ratified 1791

At a moment when we all seem to be looking to government to protect us -- from economic collapse, from environmental catastrophe, from foreign competition, from terrorist threats, from domestic criminals -- it might be worthwhile to remember that those who imagined and created that government were most passionately concerned with the threat of ... government itself.

After the harrowing work of hammering out the U.S. Constitution in 1787, that precious framework nearly collapsed because critics feared it could create a state that trampled individual liberties. They insisted on adding a list of basic rights that no authority could usurp. The debate was contentious, but the most remarkable thing about it was that nobody was arguing the state should have more power. The dispute was solely about how most effectively to limit it.

Unlike any government before or since, ours was founded on the supremacy of the individual over the collective. The Founders understood full well that harmony and security might suffer when every man (it would be many terrible years until that word would be understood to mean every human) was the king of his castle. These men weren't naive; they were serious radicals. And they knew that living out a radical belief in freedom would require courage and sacrifice.

Thankfully, enshrining a list of rights won the day. James Madison initially derided the Bill of Rights as too weak, merely "a parchment barrier" against tyranny. But he eventually came around to its value. He foresaw that by building individual rights into the foundation of national law, the judiciary would become the protector of freedom against the other branches of government.

And in many ways, the judiciary has handsomely fulfilled that vision. But, as the couple in the story that begins on Page 8 discovered, the protection is imperfect. Imagine seeing armed men in black masks creeping through your yard. You scream -- obviously. Should police be able to use that scream as legal justification for breaking down the door? Unfortunately, Supreme Court decisions in recent decades seem to say "yes."

I wonder what the Jameses, Madison and Otis, would say about that.


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