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By Jeffrey Wernick / Original to ScheerPost
This is the year we are supposed to celebrate the 250th anniversary of the Declaration of Independence. Parades are planned. Speeches are written. The nation will commemorate the moment it declared that governments derive their just powers from the consent of the governed.
While that celebration is being organized, the Department of Homeland Security has reintroduced the writs of assistance.
In February 1761, a young lawyer named James Otis Jr. stood before the Superior Court in Boston and argued for five hours against the writs of assistance. These were general warrants issued by the British Crown that allowed customs officials to enter any home, any ship, any warehouse, at any time, without naming a suspect, without specifying what they sought, without any judicial review of whether a particular search was justified. The officer decided. The writ was self authorizing. The citizen’s only role was to submit.
Otis lost the case. The court ruled for the Crown. But a 25-year-old lawyer named John Adams was in the courtroom, and he never forgot what he witnessed.
Adams later wrote that Otis argued “with a profusion of legal authorities, with a prophetic glare of his eyes into futurity, and a rapid torrent of impetuous eloquence.” He wrote that Otis was “a flame of fire” and that he “hurried away all before him.”
The most famous line followed: “Then and there the child Independence was born.”
Adams also wrote this: “Every man of an immense crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.”
The argument did not merely convince. It transformed. It made men see the officers of the Crown not as servants of order but as threats to liberty. It made submission feel like betrayal.
Otis’s core claim was simple. A power that allows the government to enter your home without specific justification, reviewed by no neutral authority, places “the liberty of every man in the hands of every petty officer.”
He was not alone. John Dickinson, who would later represent Delaware and Pennsylvania at the Constitutional Convention, wrote in the 1760s that the broad, unchecked powers granted by these writs were “dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.”
Fifteen years after Otis argued, the Declaration of Independence was signed. Among its grievances against King George III was this: “He has sent hither swarms of officers to harass our people, and eat out their substance.”
The writs of assistance were one of the specific abuses that merited inclusion in that document. The controversy over general warrants had surfaced in the courts of every colony. The grievance was universal. The Declaration made it permanent.
Thirty years after the Declaration, the Fourth Amendment was ratified. It requires warrants to be issued by a neutral magistrate, supported by probable cause, under oath, describing the specific place to be searched and the specific things to be seized.
The Founders were not theorizing. They remembered what Otis argued against. The Fourth Amendment is what you write after you learn what general warrants feel like.
The Supreme Court remembered too.
In 1886, Justice Joseph Bradley wrote for the Court in Boyd v. United States. He traced the Fourth Amendment directly to Otis. He described the writs of assistance as “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book,” because they placed “the liberty of every man in the hands of every petty officer.”
Bradley called the 1761 argument “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country.” He quoted Adams. “Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain.”
In 1965, Justice Potter Stewart wrote for a unanimous Court in Stanford v. Texas. “Vivid in the memory of the newly independent Americans were those general warrants known as writs of assistance under which officers of the Crown had so bedeviled the colonists.”
Stewart’s conclusion was unmistakable. “To hold otherwise would be false to the terms of the Fourth Amendment, false to its meaning, and false to its history.”
The Supreme Court reaffirmed this principle within living memory. In 2014, the Court held in Riley v. California that even when law enforcement has a legitimate interest, and even when evidence may be lost, the Fourth Amendment still requires prior judicial authorization.
The Court emphasized that the Amendment’s basic purpose is to safeguard the privacy and security of individuals against arbitrary invasions by government officials, and it rejected the idea that convenience or modern circumstances could justify dispensing with warrants.
The decision rested on the same insight Otis articulated in 1761. Allowing officers to decide for themselves when constitutional limits apply collapses the line between law and power. The Fourth Amendment does not exist to accommodate enforcement. It exists to restrain it.
This is not an argument made once and forgotten. It is an unbroken line. Otis in 1761. Dickinson in the 1760s. The Declaration in 1776. The Fourth Amendment in 1791. The Supreme Court in 1886. The Supreme Court again in 1965. And again in 2014. Two and a half centuries of American law tracing back to the same argument, the same principle, the same warning.
That line held. Then it was broken.
On May 12, 2025, Acting ICE Director Todd Lyons signed an internal memo authorizing agents to forcibly enter homes using only administrative warrants. These warrants are not signed by judges. They are signed by ICE officials. They are not reviewed by any neutral magistrate before the entry occurs. The agent decides which home to enter. The agent decides whether the target is believed to be inside. The agent decides whether force is justified. The agent executes the entry. The agent writes the report afterward.
The memo itself admits this is a change. According to the whistleblower disclosure, it acknowledges that DHS has not historically relied on administrative warrants alone to enter residences. It then claims a new Office of General Counsel determination that the Constitution does not prohibit it.
DHS has issued itself permission to enter homes.
The agency’s own training materials, still in use, state that a warrant of removal or deportation does not alone authorize a Fourth Amendment search. The memo orders agents to do it anyway. According to whistleblowers, the memo has not been formally distributed. Supervisors show it to agents, direct them to read it, and then take it back. If this were lawful, it would be in the handbook.
A seasoned government instructor, tasked with teaching this new doctrine, resigned rather than be forced to teach what they knew was unconstitutional.
It is already being implemented. On January 11, the Associated Press witnessed ICE officers ram through the front door of a home in Minneapolis wearing tactical gear with rifles drawn. They had only an administrative warrant. No judge authorized the entry.
The formal limit of the memo is people with final orders of removal. The practical limit is whatever the agent claims.
A defender will say this is not a general warrant because the targets have already received due process. They had their hearing. They lost. The order is final. But the Fourth Amendment does not protect only the innocent. It governs how the government may enter a home. A deportation order is not a search warrant. The right to be free from unreasonable search does not dissolve because a prior proceeding went against you. If it did, anyone with an outstanding civil judgment could have their door kicked in at dawn.
The agent decides which house. The agent decides whether to enter. The agent decides whether force is justified. The agent writes the report. The FBI takes the evidence. The FBI excludes state investigators. The FBI refuses to share findings. The Department of Justice does not prosecute. The president calls oversight officials crooked.
Who reviews the agent’s judgment before the door comes down. No one.
Who reviews it after. The same agency that ordered the entry.
This is the structure Otis identified in 1761. General authority. No prior judicial review. The officer’s discretion as the only limiting principle. The citizen’s role is to submit.
The writs of assistance were at least issued by a court, however captured by the Crown. The May 12 memo is issued by the executive branch to itself. It is the government deciding the government needs no warrant.
Two hundred and fifty years ago, the men who founded this country looked at general warrants and saw tyranny. They declared independence in part because of them. They wrote a constitution to prevent them. They required judicial review because they understood that power that authorizes itself will always expand. They required specificity because they understood that general authority becomes arbitrary authority. They required a neutral magistrate because they understood that the executive cannot be trusted to limit the executive.
This year we will watch fireworks and listen to speeches about the Declaration of Independence. We will hear about the courage of the Founders and the principles they established. We will celebrate the 250th anniversary of the document that listed general warrants as a grievance against the Crown.
While we do, federal agents will be entering homes without judicial warrants, controlling the evidence of what happens inside, and operating under a memo that the government’s own training materials say is unconstitutional.
John Adams dated the revolution not to 1776 but to 1761, to the moment when Otis made men see general warrants for what they were. He wrote that the argument against the writs “breathed into this nation the breath of life.”
The question for 2026 is whether that breath still means anything.
Donald Trump and Kristi Noem are testing the answer. They are betting that the words on parchment are just words. That the Fourth Amendment is a suggestion. That the executive can authorize itself, investigate itself, and call anyone who objects crooked.
Every man’s liberty is in the hands of every petty officer.
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Jeffrey Wernick
Jeffrey Wernick hosts the podcast The Wernick Files and moderates The Fein Print. An independent private investor with over 40 years of experience, he began trading options and futures before graduating from the University of Chicago. In 1984, he sold his venture capital and risk management firm, AVI Portfolio Services, to one of the largest diversified financial firms, and has since been an opportunistic investor across a broad array of assets. He has been a Bitcoin acquirer and advocate since 2009 and a keynote speaker at Bitcoin conferences worldwide. His investment philosophy and political outlook share a common thread: skepticism of centralized power and a commitment to individual sovereignty.