Constitutional Principles Are Easier Said Than Done

This Thursday marks the climax of the 200th anniversary of our Constitution and the Bill of Rights, which we now view as part of the original document. We have had a good time. It is always pleasant to point with pride at our ideals on ceremonial occasions. It is a good deal harder to take those ideals out from under the glass and put flesh and blood on them.

I know no one who is unwilling to pledge allegiance to our constitutional principles “in principle.” But how many are prepared to carry these principles to the point where they really bite--where they deny the government desired means of achieving legitimate, even laudable, objectives? If at this point we hesitate, flounder and demur, it is worth recalling that so did the colonists whose wisdom and courage we have lavishly praised.

Historians generally agree that the serious friction between the colonists and the British customs officers, armed with the hated general warrants and writs of assistance, was the first in the chain of events that led to revolution and independence. In an oft-quoted remark, John Adams said of James Otis’ fiery 1761 oration against general warrants: “Then and there was the first scene of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.”

But a decade and a half later, when the colonists and Great Britain were at war and the outcome was still in doubt, the Continental Congress recommended to the Supreme Executive Council of Pennsylvania the arrest of certain persons, most of them Quakers, suspected of being inimical to the American cause. The congress also recommended the seizure of all papers in these persons’ possessions “as may be of a political nature” as well as the seizure of all records and papers of Quaker meetings.

The recommendation was carried out--with enthusiasm. Many Quakers were arrested and hurried to confinement. Their houses were searched and their desks broken open in a general fishing expedition for compromising papers. There was neither trial nor hearing.

Twenty-three of those who were arrested prepared a remonstrance to the Pennsylvania council. They based their protest on two sections of the newly adopted Pennsylvania Declaration of Rights; one section guaranteed the essentials of a fair trial, the other prohibited general warrants. The warrant issued by the council, the arrestees pointed out, had authorized the messengers to conduct a general search of places and papers on the bare possibility that something “political” might turn up. Moreover, the messengers had carried off papers and books not within the terms of the warrant.

The Continental Congress recommended that the council hear the petitioners. The council replied that it lacked the time to do so “in the midst of the present load of important business.” It requested that the congress itself investigate the matter. The congress retorted that it would be improper for it to do so because the protesters were inhabitants of Pennsylvania. Notwithstanding the issuance of a writ of habeas corpus (which the Pennsylvania authorities disregarded), the prisoners were shipped off to Virginia. They were finally allowed to return to their homes nine months later.

The late Monrad Paulsen, a leading authority on constitutional-criminal procedure, once said: “The comfort of Freedom’s words spoken in the abstract is always disturbed by their application to a contested instance.” So it was in the beginning. So, I am afraid, it will always be.