Mandeville, LA – Exclusive Transcript – “He brings up Josiah Phillips and accuses Henry of basically being a tyrant (like an NSA agent). Patrick Henry was most certainly not a tyrant. While accusing Henry of being a tyrant, he then makes the case — that if Virginia ratifies the new Constitution, then the kind of pursuit and lack of due process and searches and what have you that were going to go on to capture a guy like Josiah Phillips could not happen, that the new general government would not have the authority to do so. All the Fourth Amendment would mean then is just reiterating the fact that police powers like the ones that Henry used in Virginia were not granted to the general government.” Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Why was the Fourth Amendment so important that it actually got into the final cut of twelve amendments that were approved by the First Congress and then sent to the states for ratification? I believe that Sunday was Bill of Rights Day. December 14th is the day the nine-state requisite for ratifying amendments ratified the first ten and put the Bill of Rights into effect, 14 December 1789. It was a pretty quick ratification process.
We love to run around and quote amendments, yet so few of us actually know why any particular amendment was important. It would have been important because of the experience that these men, women, and children had just suffered through during the war for American independence. That’s why it would have been important. It would have been important because someone or somewhere during that time period, some entity — that would have been the British government or the royal governors enforcing the will of the British government — must have tried to search people’s houses and take things out that they had no right to take out. It would have been really difficult to go all the way back to London or to a privy council, which was popular in those days, to try to get a judgment against someone and then have it enforced across the seas because of the time travel. There would have been decisions that would have been made by local magistrates, and they would have made them without oaths and without affirmations, and they would have went into people’s houses and they would have searched and seized.
If you read the history of Mercy Otis Warren, probably the earliest American historian — she was one of the earliest, let’s put it that way. If you read her account of the occupation of the Port of Boston, you’ll read some accounts of redcoats under the direction of General Gage. This guy was just a prince of princes, and I mean that in every satirical fashion I could mean it in. General Gage engaged in an awful lot of this. As a matter of fact, he sent a proclamation out basically proclaiming that if he wanted to come in and search someone’s house, he didn’t have to have any reason to do so. There would have been experience for this. Notice how the amendment is worded so that even if there is going to be a search, it has to be very specific. The specificity has to go all the way down to where you’re going to search and what it is you’re looking for. Not only that, you’ve got to go in there and someone has to swear: I’m telling you, Your Honor, there is a reason why we need to search this particular house.
I want to bring you back to the year 1788 really quickly. Those of you that are longtime listeners, you know that I spend an awful lot of time reading and poring through the records of the various ratifying conventions and of the Federal Convention of 1787 itself, and then the proceedings shortly thereafter of the state legislatures and the people that worked in the federal government, to get an accurate and historically-defined picture of what life and what political and legal life was supposed to be like under our new constitution. I think that this is important. I told you earlier that one of the reasons why there is a Fourth Amendment is because of things that had happened during the war for American independence. Let me just give you another example of this.
There was a man named Josiah Phillips. Some of you are going to say, [mocking] “Mike, why do I care about some clown named Josiah?” I’m going to explain to you why you should care about a clown named Josiah. Josiah Phillips, during the middle of the war for American independence, was a terrorist. That’s right, they had terrorists back in 1777. What had happened was Josiah Phillips was terrorizing the Virginia countryside. In doing so, he was driving then-Governor Patrick Henry and the Virginia Assembly mad because people were complaining about it and demanding to know: Why aren’t you guys doing something about this?
Henry and company finally put a posse together — I’m paraphrasing — and they sought out Josiah Phillips. They caught him and had somewhat of a trial in the county he was captured in. He was found guilty and they executed him. Remember, the redcoats are about to invade the Virginia countryside, or at least Governor Henry thinks they are. These actions are all happening under a country that is at war. Gee, what a similar circumstance. So all this happens and Henry as the governor and the magistrates and the law finally capture and get rid of Josiah Philips. That happened in 1777.
Now we fast forward to 1788 and during the Virginia ratifying convention this comes up. Governor Edmund Randolph brings up Josiah Phillips. He brings up Josiah Phillips and accuses Henry of basically being a tyrant. Patrick Henry was most certainly not a tyrant. While accusing Henry of being a tyrant, he then makes the case — you’d have to read the transcript, but it’s almost a day’s worth of debate. During the debate, what happens is Randolph basically makes the case that if Virginia ratifies the new Constitution, then the kind of pursuit and lack of due process and searches and what have you that were going to go on to capture a guy like Josiah Phillips could not happen, that the new general government would not have the authority to do so. All the Fourth Amendment would mean then is just reiterating the fact that police powers like the ones that Henry used in Virginia were not granted to the general government. If you read the story, this will become clear. I can give you a piece of it.
There is no peace, sir, in this land: can peace exist with injustice, licentiousness, insecurity, and oppression? These considerations, independent of many others which I have not yet enumerated, would be a sufficient reason for the adoption of this constitution, because it secures the liberty of the citizen, his person and property, and will invigorate and restore commerce and industry.
Mike: If you read the rest of this debate, as I said, it’s very, very lengthy. This case is made over and over again. Madison jumps in on it. George Mason jumps in on it. They have a furious debate over this. At the end of the day, the case that the federalists — these are the guys that are for ratifying the Constitution — the case that the federalists are making is that what happened to a guy like Josiah Phillips could never happen under the new general government because it could not have that kind of power. It would restrain the exercise of that kind of power. This is the condition under which then the Constitution was ratified. That is very important to understand if you’re looking for some kind of original intent. That’s where you would find what they like to call originalism or original intent.
End Mike Church Show Transcript