CHARACTER: Crime Four

Last year I presented three lists describing crimes and criminal activities, derived from TV crime shows. Issues in this article arise from a crime show: Woman has wonderlust. She moves from place to place but no stop is perfect and satisfies her. She needs satisfaction not contentment or acceptability. She continues to look for the perfect location with perfect people. She meets different and more people. There are chemistry and magic someplace.

A person seeking something from the environment or from society has a tough row to hoe. Everything is life predicated on experience: Wise men learn by others’ harms; fools by their own. Or, Experience keeps a dear school, yet Fools will learn in no other. Benjamin Franklin, Poor Richard’s Almanack. Our person relies on impulse, instinct and intuition, freely for the way forward but frequently is hurt or offended if someone is rude, questioning or dismissive. Yet ask whether our person is capable of love, or recognizes love apart from fondness, affection and attention.

Our person from the show was murdered in the same manner her mother was 25 years before. Picked up in a bar, taken into a forest, assaulted and killed. The murderers were easily caught. However, our person did not learn from experience, and there appeared no memory to let our person ponder, reflect or consider. This was a sorry, pathetic, weak and uneducated human being. What may be worse, our person may be lying to herself about herself.

How to breach the cycle relying in impulse, instinct and intuition? One ay, put something of substance into the person’s head. If she loves nature, educate her about forest lore, not the tripe James Fenimore Cooper recited but real things from education to survival skills. That education will change activities, the life, behavior, goals and aspirations.

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EMPIRE OF LIBERTY

By Gordon Wood

The chapters and passages in Empire of Liberty about unpolitical, business affairs, social events and participating individuals are the strongest: Education, the arts, society, sociologies and cultural anthropologies of business, and the general thinking of Americans and their temper and mood. On that score the book is invaluable.

Exposition about the government, politics and the men is flawed. I observe in one Amazon criticism, the commentator states the book is episodic. To describe business and social activities, arrangements and the men by episode can make an accurate presentation. The actions and the individuals are usually isolated from one another.

Telling of national politics and the men in episodes tells nothing, no story and little about the men and the issues that were changing. This approach weakens Empire. These men – Madison, Jefferson, Hamilton, Washington and others – knew one another well. They acted and reacted, playing games against strengths and weaknesses of the others. Madison excelled at the game playing. He set things up, stepped back and watched.

He may have been the Father of the Constitution, and the Father of American Politics and the Father of the Bill of Rights, but for eight years 1815-1823, there was little or no political opposition in the United States. That was Madison.

All historians, political scientists and others rely on Madison’s Notes of the Constitutional Convention, 1787. Yet in 1789 and after when Madison was in Congress guiding Revenue Bills though, establishing Cabinet offices, advancing the Bill of Rights, setting the Capital site, working on the debt, Empire inaccurately describes the proceedings and a culminating result in the Grand Compromise of 1790. No one believes or relies on Madison. Empire is remiss in this omission.

Consider corporations [Charters of Incorporation], an issue of 1791. The American colonial experience was the king’s granting charters, thereby setting up monopolies. The East India Company of Tea Party fame was one such entity. Americans disfavored corporations. When Madison proposed during the Constitutional Convention to give Congress the power to grant charters(1787), it was rejected.

Empire presents the impression that charters of incorporation were well know and working in America. Its view is anachronistic, using law and facts of the 1880s. Two excellent attorneys/justices of the early Republic, James Wilson and John Marshall, dismissed the business form in the 1790s. A real go at incorporation was made by John Jacob Astor in 1807; it does not resemble anything presented in Empire. (See David Lavender, Fist In The Wilderness) [Note Abraham Lincoln studying law in Illinois during the 1830s found the corporate form new and interesting,
(David Herbert Donald, Lincoln)]

Note in Empire the text relies on the Dartmouth case (1819), 30 years after the first Congress. Chief Justice Marshall wrote the opinion but did not discuss the power to incorporate, or who had it. He interpreted the law, documents and contracts, and the Constitution.

Other errors in Empire suggest the author did not research and write the text, or he was exceedingly careless.
Page 446. George Mason, according to Madison’s Notes of the Constitutional Convention, 1787, said almost nothing during debates. He did not favor the Council of Revision; James Wilson and James Madison vociferously supported this issue and suffered repeated defeats. George Mason wanted a Council of the Executive like the one existing in Virginia, to control the Governor. Mason had written the Virginia Constitution. At the national level such a Council would control the President.
After William Haller’s books about Puritanism, no historian should ever call anyone in New England a Calvinist, a European term. In Empire the text does. However, the text reveals Presbyterians and Independents (Cromwell’s sect) in the Dartmouth case. (Pilgrims were separatists.) Almost everyone else in the settling of New England was an Independent, to become known in the eighteenth century as Congregationalists.
Misquotes misrepresent Jefferson and Madison’s opinions of the Constitution. Empire uses early quotes. Both men evolved in their thinking, leaving earlier opinions, like Hamilton’s statements, historical additives and eccentricities. Indeed both Jefferson and Madison were willing to use precedent to sidestep Constitutional rigors. During the legislation and ratification of the Louisiana Purchase (1803), Rufus King wondered how they could change governmental power defined by the Constitution by using the Treaty Power. Jefferson and Madison merely used the same processes employed by the Federalists when they passed the Jay Treaty(1796). The same procedures were used at the end of the Mexican-American war (1848).
John Taylor of Caroline County (Virginia) is misrepresented. He is hardly the philosopher of the Republican Party. He had a father figure who lived close by, Edmund Pendleton, perhaps the best judge of the eighteenth century English world. Pendleton was known, respected and loved by everyone – Henry, Washington, Jefferson, Marshall. He was a confident of Madison’s. How prominent was Pendleton, other than being on Virginia’s highest court? In 1765 after it was discovered that John Robinson, Speaker of the House of Burgesses, had embezzled public funds, mostly giving the money to prominent Virginians, Pendleton undertook the task of getting the money back. By 1803 the job was not complete; he died. He left the work to John Marshall. In 1798 Pendleton published in newspapers a letter critical of President Adams, his administration and the Federalists. No one came down the lane to arrest Pendleton for violation of the Sedition Act. This is all to say that at best, John Taylor was a puppet for the men (Pendleton and Madison) pulling the strings in the backroom.
It is anachronistic as Empire does to view “null and void” as Southerners did in 1830-1865. Jefferson’s draft of the Kentucky Resolutions, originally intended for North Carolina, was greatly changed by Wilson Cary Nicholas and the Kentucky Legislature. Jefferson proposed Committees of Correspondence in each state to communicate and to react to the Alien and Sedition Acts. (1798) What did Jefferson mean by “null and void?” He likely relied on the same definition used by that infamous radical/revolutionary, James Otis of Massachusetts (1764): “As the Acts of Parliament, An Act against the Constitution is void: An Act against natural Equity, it should be void; and if the Act of Parliament be made, in the very words of the Petition, it should be void.” The word, null, has no legal impact without its mate void.
P. 184. Empire praises Hamilton’s Pacificus essays, but they are difficult to defend. Facts deleted from Empire manifest Madison’s response (Helvidius Essays) destroyed Hamilton’s essays by citing The Federalist Papers, written by Hamilton, against assertions Pacificus.

Other issues of error and misrepresentation appear in Empire. One chapter is a mundane discussion of points of Judicial Review, a power given the Courts by the sovereign. In the 1780s Massachusetts abolished slavery within the state by Judicial Review (opinion and judgment). In Virginia the Court of Blair, Wythe, and Pendleton accepted the power; it was taught in law courses. John Marshall grew up knowing it, read the Constitution and participated in the Virginia Convention (1788). He further discussed all legal issues with Madison and Pendleton and others and was influenced long before the opinions of Marbury vs. Madison and other cases.

Err in Empire of Liberty distorts the politics and the economics, and a complete view of the 1789-1815 period; each wrong has not been set forth. In Empire men of the Early Republic are unknown to one another. Legislation and proposals are isolated and presented as surprises, oddities and ineffective efforts to accomplish their purposes. No man was correct all the time, but the sense that Hamilton is correct, is wrong. e.g. He was instrumental in his party’s loss in the election of 1800, once again those facts being omitted from Empire.

POOR LANGUAGE

When I read and hear language today to describe one politician or another and actions, in or out of office, I realize America has not learned from its heritage. Everyone writing and speaking is inept, ineffective and inexact. They are uneducated; they are relaxed; they are polite.

At the height of the Sixties Hunter Thompson and Rolling Stone magazine ran severe articles about anything. Some of Thompson’s words appear in Fear and Loathing on the Campaign Trail 1972, and The Great Shark Hunt. Upon reading the 1972 campaign book Pat Buchanan relieved his friend Thompson by telling the author, “I thought it was funny.” If one did not like the contents (comments about everything and everybody), it was difficult to disagree with the quality of the writing.

What has happened in the 50 years since Thompson and Rolling Stone opened up? The quality of writing has fallen. Everyone thinks they are either Woodward or Bernstein; they got degrees from a school of journalism without much newspaper experience; they know how to use word processing and the Internet. They haven’t read many books so don’t know much about writing (anyone read Ernie Pyle?); they know little of the times of their early lives. I doubt if many know what the CFR is. (Code of Federal Regulations). How many have seen, picked up and read (very small print) the Federal Register. (Daily publication of new and proposed Federal Regulations)

Many reporters today likely know people elected to and serving in government but do they know them as well as Bob Woodward knew Mark Felt, Deep Throat. All today’s reporters can talk as though always sitting before camera on live TV. Their comments, Left and Right, are poor, unknowledgeable and ill-expressed. They talk like robots, hooked up to a word processing program with proper political views using language as colorful as the programer’s.

Comedians might meet the standard of language variety, if they wrote their own stuff. But a comedian likes to speak one or two lines and get relief: funny, funny, funny, HardyHarHar. To have impacts comments must be longer and better expressed. Who is prepared to talk about approaching Don Trump’s event horizon and leaving existence forever?

PEN

PEN is not an acronym; it is a society of writers.

I found among papers an article about the 1986 PEN convention by Salmon Rushdie, published by the New York Times Book Review in 2005. It is a poor account of the meeting. There is an account to compare it to: The Prevention of Literature, Polemic, January 2, 1946, George Orwell.

Faults within Rushdie’s account: He was a new, mostly unknown writer. He dropped every name in one long column. He was overly impressed by all writers he saw, mostly foreigners, but he was more likely impressed by the size of their bank accounts and the scope of their marketing operations. There is not much to suggest that Rushdie was inspired by anyone’s facility of writing, the ponderous and combination of thoughts and visions and use of words and impressions formed by expression.

Indeed, Rushdie truncates speakers’ comments to uninformative sentences:

After Bellow made a speech containing a familiar Bellovian
riff about how the success of American materialism had
damaged the spiritual life of Americans, Grass…pointed out
that many people routinely fell through the holes in the
American dream, and offered to show Bellow some real
American poverty in… the South Bronx. Bellow, irritated,
spoke sharply in return…Grass returned to his seat, next to
me,… trembling with anger: “Say something,” he ordered.
…[Rusndie did as asked.] …why many American writers had
avoided …the task of taking on the subject of America’s
immense power in the world….
Enjoyable as such recollections are, the real significance of
the congress…

The tidbits recounted what Rushdie memorialized were noteworthy, unintentionally. Bellow raised the point that materialism diminishes the spirit and art, especially in the United States. He did not expand his comments to the world, among a meeting of international writers. Apparently there were no takers. Did anyone understand what Bellow was taking about? Gunter Grass was a blithering, ignorant idiot. He conceded the point that materialism (riches) are essential for advancement, which cannot happen from impoverished bases where people do not experience the American dream. The American experience demonstrates Grass is full of beans. The blues, jazz, rock and roll and nearly the whole twentieth century musical experience has come from foundations provided by African-American music of more than 120 years ago. Politically, the Civil Rights movement of mostly African-Americans of the South was successful under strong, low-income leaders.

Rushdie’s own participation in this petty PEN fiasco suggested insularity. America has too much power and influence; the world should be left to itself. Rushdie hardly speaks of a new world order, where people ought to communicate freely with one another, an American wish. I wonder if he approves of the Internet crossing borders (except where governments interfere with it). PEN and its members know what he thought in 1986. I wonder if he maintained his provincial thoughts in 2005? What about today, 2018?

Rushdie article supports on a foundation of quicksand his quoting Shelley: Writers are the unacknowledged legislators of the world. In 2018 is any nation, other than America, spending as much time and money on entertainment, albeit most of it is short of literature but some of it passes for short stories? Great Britain and some British commonwealth countries are competitors because they have both the language and the heritage. But other countries? What writing goes on therein, and what media comes from those places? Perhaps those countries are too materialistic.

DIARIES OF VICTOR KLEMPERER

The Lesser Evil, 1945-1959

The secondary title supposedly refers to the comparison of Nazism to Communism. The author’s well-known, excellent World War Two diaries set in Dresden where he was living are compelling and dramatic. Therein, Klemperer is less an academic and less intellectual and more human and communicative.

This single volume of his last 14 years of life seem academic with pretense to intellectualism. He is a professor but not set to one location. The writing is onerous and much less clear; he seems confused and conflicted as a diarist. Why did the Chicken cross the road? Should I also cross the road? Will the chicken be there if I cross the road after it does? is If the chicken becomes road kill should I consume the remainder?

Much was goofed up in Germany after World War Two. The Americans Army fed itself well. It organized much in its sector using non-Nazi Germans and German Jews. But Klemperer has few good impressions to report about the Soviets, except they are not Nazis.

I read until I got to one repeated point: Social pressures to join this organization or another group to support the establishment seemed like high school. Klemperer reacts and joins, if he can go 10 or 20 miles, to meetings. Be part of the influential class, the in-group and popular and be comfortable. Early on he isn’t at ease; his diet is monotonous; it’s hard to visit friends, if they can be found; there is no work for him, although he is recognized as an authority in his field.

I did not need to read another 500 pages of this East German Storm and Trag, not well-expressed and always relying on some remote big-wig’s good will who might drive Klemperer to an event one evening yet by the next week be arrested to put into prison.

VICTORIAN GHOST STORIES

Editors, Cox & Gilbert

The Introduction of this book is the most entertaining section. The authors swoon about Victorian writers putting together hundreds of Ghost Stories. In Victorian England Christmas was a good time for ghost stories, an expectation Charles Dickens capitalized on with A Christmas Carole. The authors say there were strict formats that demanded quality writing. However, a reader’s experience differs. Some stories are chronological. Hence, write about one character, repeat the same traits and activities about the next. But for the activities of the third character, the author uses, “Meanwhile, this or that…” The thread of the story is lost, and the reader can guess which character – one, two or three – has or deserves the floor.

I stopped reading in A. Y. Akerman, The Miniature, when I stumbled into the following paragraph:

‘At the breakfast table I was moody and thoughtful, which my friend perceiving,
attempted a joke; but I was in no humour to receive it, when Maria, in a
compassionating tone, remarked I looked unwell, and that I should take a walk
or a ride before breakfast, adding that she and George S— had walked for an hour
or more in the plantation near the house. Though this announcement was certainly
but ill calculated to ease my mind, it was yet made with such an artless air, that my
more gloomy surmises vanished; and I rallied;…’

Being in a disagreeable mood at the breakfast table without humor and appearing unwell, one might disregard comments, but to reveal anything about all the persons at the table, tell what the joke was. Perhaps friends looking sickly in Victorian England were invited to walk or ride interrupting breakfast and avoiding whatever substance they could consume. Go outdoors and get pneumonia!

However, the character has no mind of his own. He thought of none of those remedies. Note this character appears whimsical and supercilious with no will or fortitude of his own:

Through his announcement was certainly but ill calculated to afford perfect ease
to my mind, it was yet made with such an artless air, that my more gloomy
surmises vanished, and I rallied;…

As far as the reader can tell, the author of the suggestion came to the table with hand fulls of uppers and passed them around. This character popped a couple and was set for the morning. Suspending disbelief which this paragraph requires, all readers can see it is variable and nonsense: Note, the character describes himself as “moody and thoughtful;” it becomes “unwell” and next in the character’s mind he is “gloomy.” Why does the author of this piece drop in adverbs, “but ill calculated” and “yet made.”

This is not acceptable writing in middle school. Writing must make sense – communicate clearly – to be good, solid and worthy.

A PILE OF BOOKS

Having a neglected pile of books to read, I wondered how to get through them. Each appeared interesting. They came cheaply, purchased one at a time but most all at once. Libraries have shelves of donated books they want to pass on. Likewise there were grocery bags of books costing one dollar at the bag sales at library book sales – the first time in history books were cheaper than the shopping bags they were carried away in.

So how did each book of the pile read? Perhaps I was correct in stacking the books:

John LeCarre, A Small Town in Germany. At the beginning he insists on long descriptions of the town. How does the scenery advance the espionage story?

2. John Dos Passos, Big Money. The author tried to tell how people made their way in careers in an advancing economy while presenting the worst dialogue – non-directional, cumbersome and unrelated to the story. I give it 170 pages.

3. Anson’s Voyage Around the World 1740-1744. The Introduction was of interest, filled with appalling facts: Ships left England with mostly old men who were sick. About 950 mens set off from England and by the South Atlantic 370 men were left. Not all of the 370 were fit for duty aboard the ships. However, the diary is written in an eighteenth century fashion by more than one author, each writing formally and stiltedly.
I’ve read of similar journeys. I don’t have to struggle through Anson’s. I passed on the diary.

4. Thurber and White, Is Sex Necessary? This text was likely enlivening in 1929. Now it is dated.

5. George Kennen, The Decline of Bismarck’s European Order and The Fateful Alliance. Each book appeared unread when purchased. I’ve read about each subject in excellent academic produced histories. How did old George do? He is pompous and verbose. His English is truly bloated. Sentences are unnecessarily long and convoluted.

6. Norman Thrower, Maps and Civilization. This is another academic book written in the vernacular of its subject matter. Small print. It appeared involved and complicated, requiring looking up words in dictionaries. Disclosures about maps and civilization shall remain hidden.

7. H.G. Wells, Journalism and Prophecy, is disappointing. I am not fan of the author’s science fiction work. I do not hold him in awe. Meetings with Hitler, Stalin and Lenin reveal H.G. Wells was completely uninformed and ignorant. In articles that should be written as essays, H.G. writes in the narrative. It is the best illustration about the folly and fallaciousness in the use of the pronoun, I – except for the Tweeting I abilities of Don Trump.

8. Chapelle, The American Sailing Navy, describes sailing ships used in eighteenth century wars and commerce. There is much about ship and sail design and the history of ships. There is little about the functional fighting qualities of each ship. I gave the book about 320 pages. From the number of American ships captured or sunk, i am surprised there was any early Navy at all!
Unless one is intensely interested in sailing ships and their design and builders – minute and large changes – this is not a book for the average reader.

9. Tate, Stonewall Jackson. This appears one of the lovingly biographies written by a Southerner during the 1920s. It is about a revered Southern Civil War general. Every word is a compliment. I recognized it as such and passed.

10. Leonard Arrington, Great Basin Kingdom, a small print book telling of the establishment of the Mormon Church in and around Utah. It looked unopened and unread when I picked it up. Perhaps I am lazy, wanting nothing physically challenging to read. The small print covering the pages was daunting. I put it down.

LEONARDO

By Serge Bramly

This readable biography of Leonardo is revealing. It doesn’t completely endorse the fifteenth century genius. If the writing stumbles it is because the subject matter, Leonardo di Vinci is imperfect. It is remarkable how few finished productions Leonardo had and have survived; count the paintings on hands and toes. The product of one of the best of those, The Last Supper, can only be guessed at. It started to deteriorate almost immediately; no one paid much attention to it. It was neglected and abused for centuries and almost bombed out of existence during World War Two. And did Leonardo ever complete the face of Judas and the countenance of Jesus Christ? It is likely an enterprising student or artist stepped into to finish those portions of the work.

A problem was Leonard did not know when a production of his was finished. There are general discussions of art in the book, but most artists know to finish, to complete, to rid the mind of effort and work. That vacancy in the mind is welcome and a relief. There are drawings of the Sforza Monument, a horseman in bronze to be placed in Milan. But Leonardo did not know how to cast a rearing horse with a rider; years passed and he never started the work. It was abandoned. Meeting Michelangelo in Florence Leonardo was confronted by his own inability to conceptualize and complete that horsey work [as well as drawings of many other incomplete works].

What Leonardo painted, he painted well, but he is one of many painters from 1480-1520 who painted well. The painting of Jesus Christ recently sold at auction is not as detailed, studied and finely finished as Albrecht Duerer’s 1500 self-portrait, the artist as Jesus Christ.

Leonardo’s work is mostly notebooks and fragments thereof, where there are drawings, sketches and imagines of things and thoughts about other things. The biographer notes there are other artists, engineers and diarists who imagined flying machines and armaments, but there is no grand discussion or comparison of those images from multiple sources. Some of Leonardo’s notations are alchemy; he visualizes plastics but does not start with petroleum. He makes scanty astronomical notations, but they may be more astrological in nature – the biography does not go into detail.

Leonardo was interested in dissecting bodies but not to produce a systematic study leading to medical advancement. He was aware of the process of human originality and creation to produce art, but imperfectly applied it to himself. He seemed unaware of human psychology.

Fellow artists saw his finished works, plus cartoons prepared for painted works and some drawings. Most artists were impressed with the drafts. But there is not a line of influence: Leonardo produced this, and ten years later Michelangelo and Raphael produced these. Too many persons influenced artists plus the egos and experiences of painters, sculptures and architects. Those individuals advanced concepts and presentations of art.

And what of Leonardo? His influence is historical. He did not share or publish many of his notebooks (codices) during his lifetime. During the 1570s visitors were invited to take what they wanted. His peers and contemporaries did not see the bulk of his work and inventiveness, and like today, as scattered as these works are, Leonardo’s influence is difficult to access.

The biography is favorable to the man, but his shortcomings are almost debilitating and incomprehensible. This biography attempts to be truthful and honest – describe the whole man and his creations without resort to much artistic mist and mystification.

SICARIO

Emily Blunt is an FBI Agent who volunteers to join a task force to take down drug kingpins along the Mexican/United States border. Emily is initially portrayed as a seasoned agent, but the movie makes her a fun-loving, innocent, naive, stupid twit who is also vulnerable. If the task force does not do things following FBI protocols and methods, she is glum, disillusioned and uncooperative. This characterization makes Emily a mannequin for American purity and goodness. Benecio Del Toro informs her at the movie’s end (something the audience already knows): This is a country of wolves. You need to leave and go to a small town somewhere, not along the border.

Other than Emily’s weak character (which is played as written), Sicario is an excellent, violent, gritty film of the border law enforcement arising from drugs, crime and smuggling. Bencio Del Toro and Josh Brolin (balls to the wind) play the leads in the task force. If the scenes filmed have happened or may happen one day, Sicario is a deeply disturbing movie. [It was written and filmed during the Obama Administration; nothing Trump did helped produce or promote this movie.] Most Americans are not ready to face the reality – there will be actions and occurrences that must be overlooked.

Emily Blunt’s character should have been written differently. Allow her to learn from the experiences that character has in the movie. She does not like what the task force is doing; she makes mistakes. At the end she must have some fight (dignity, integrity and honesty) in her. In the confrontation Bencio Del Toro begins. She says, “I didn’t do very well.” He tells her she is too innocent and naive and he uses a line (carelessly disclosed earlier in the script) “You are too much like my daughter.” Emily already knows his daughter was killed by drug overlords. Del Toro gives his country of wolves comments. She is defiant. He says, “If you want to tell your FBI superiors about everything and about all your mistakes, it is up to you.” He leaves. Emily stews; she has decisions to make about the reality she has experienced and the reality Americans believe is true. In essence Emily can represent all Americans going forward.

SUPREME COURT FOLLY – THE RIGHT TO PRIVACY

SUPREME COURT FOLLY – The Right to Privacy

A criminal defendant has claimed his cell phone, indicating the approximate location where he is, should be protected under his right to privacy pursuant to the United States Constitution. 
Despite the dubiousness of this claim of privacy, the Supreme Court luggards might approach this claim and case in their traditional way, citing off-point cases to interpret the Fourth Amendment and relying on antiquated sources from the Ivy League – the Brandeis/Warren Law Review, 4 Harvard Law Review 184 (1890).

The Fourth Amendment reads,

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.

The Fourth Amendment suggests guidelines, if the information sought is not public, or is using a public conveyance or utility. Once activities, thoughts, or actions come within the public’s scrutiny or knowledge, a citizen loses many protections of the Fourth Amendment. When in public there is no reasonable expectation of privacy. If public, what is an “unreasonable search and seizure” becomes a much larger group of behaviors, acts and manifestations.

A proper analysis of the Right to Privacy is not found in the Fourth Amendment. It is found in the Ninth Amendment of the United States Constitution:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

The Ninth Amendment infers the proper relationship between the American people and the national government. The Constitution is a grant of powers to the national government from the American people. Enumerated rights are listed, but it is an incomplete list. The First Congress and the writers of the Constitution did not want to construe, identify and enumerate all rights they could conceive. Thereafter, a right not listed could not be used by individuals against the national government. [This point was made clear in the Virginia Ratifying Convention, circa June 20, 1788, and related correspondence of James Madison, Edmund Pendleton and other delegates.)

What is the Right to Privacy? It was unknown during the country’s founding. However today, all Americans rely on it but have vague ideas of what it means, what it covers and its full extent. The right to privacy, or something like it, appears in Constitutions and in statutes of other countries. Those sources can help define and describe, but any constructed right of the American people must be interpreted and consistent with all other sections and amendments of the Constitution, plus state and federal statutes.

In 1776 James Madison and George Mason, the primary writer of the Virginia State Constitution, made Freedom of Religion a basic right in the Virginia document. However, the state government taxed Virginians to pay the salaries and other expenses of church personnel and of churches. Madison and his constituents believed this government involvement favored certain sects over newer sects. In 1785 in the House of Burgesses Madison proposed passing an Establishment Clause for Virginia. Madison desired Freedom of Conscious – believe and think what you want. Do not expect Virginia to favor and support your beliefs. Madison set forth America criteria. His efforts were successful by 1786. Thereafter, churches (Episcopalians, Baptists, Methodists, Quakerism, Judaism ), on one hand, and Virginia, on the other hand, were separate.

In Memorial and Remonstrance Against Religious Assessments (commonly known as Remonstrance) Madison construed the argument for the Establishment Clause in Virginia and for the first Right listed in the First Amendment of the United States Constitution: “Congress shall make no law respecting an establishment of religion…” The Remonstrance is the only writing where Madison, a Constitutional master unique in all of history of this country or other countries, demonstrates in a flush of pure reason how to construct a Constitutional liberty or right. Madison sufficiently separates the Establishment of Religion from the Free Exercise of Religion.

No American has defined and demarcated any other individual or civic right so clearly and fully as Madison. The Remonstrance presents guidelines, arguments and analyses that Americans should follow regarding any right not enumerated under the Constitution i.e. the Ninth Amendment. The Right to Privacy, as an unenumerated Right under the Ninth Amendment, should require the justices of the Supreme Court begin the construction of that liberty.

What is privacy? What is public? What is semi-private? What is available to the public for a price? What is semi-public? The Fourth Amendment provides narrow guidelines – security in homes and of persons when there is no warrant. But when an individual is abroad – out-of-doors – everything changes. When making a telephone call on a network, the cops cannot listen without a warrants, but indivuduals sometimes listen in. With a cell phone every American can be located, approximately. Is an individual’s location private when he is out in public?  Perhaps in a public restroom although he can be arrested from that location.

The First Amendment – the right to free speech and the right to a free press – have greatly limited the right to privacy torts in civil law. There are dozens of exceptions and excuses from the tort. Again, the Brandeis/Warren article, cited above, urges strict guidelines, which no longer fit the modern society America finds itself in.

Brandeis and Warren like Madison in the Remonstrance noted changes in society and use the current state of American society to define and delineate a liberty. Likewise, privacy today should discuss the commercial realities, benefits and demerits. Today’s case law reflects the move toward greater freedom of speech and the press; it disfavors privacy. Criminal law investigations, specially when documents, objects or speech is public, eliminates privacy.

Today, the collection of phone and cell tower data is not confined to law enforcement. Cell phone traffic and analyses allows providers to improve phone service. It lets cell phone makers improve phones and make their products more capable. And the gross data may let marketers provide goods and services where they are currently unavailable. Note when Samsung had issues of burning phones, it was imperative to contact and locate each of their phones and their owners, easily done because there was a customer list.

Most Americans believe this collection reasonable and beneficial to their society. Most information is available to non-government corporations and entities, businesses and enterprises without warrants, probable cause or reasonable suspicion. The investigation, investment and commerce flowing from data analyses makes life in America better.

If the data are misused, there may be violations of statutes. There are alternatives. If an American does not want to be located, approximately, turn off the phone designated to his name, and buy and use a burn phone. Note that phone purchase usually is monitored by cameras and memorialized by receipts – that investigation is not limited by an individual’s privacy rights. Note further an individual does to have to use credit cards or retail membership cards, where data including locations are made. Get off the grid; Americans can use cash which is anonymous.

Attempting to weave the Right to Privacy around a semi-public instrumenting like a cell phone use requires detailed analysis which is convoluted, complicated and cannot not be part of a Constitutional Right. Note the length of the two Amendments, cited above, no longer than 75 words apiece. Principles and exceptions for the right of privacy for criminals in cell phone use would be prolix, unreasonable and unworkable. There would be no precedents, only singular exceptions.

It is noteworthy that third party claims to a Right to Privacy on behalf of customers can be affected by the ruling of cellphone location privacy rights. The secondary rights of a third party to claim privacy on behalf of customers who are usually criminal suspects is flimsy. Law enforcement officials usually have the suspect’s cell phone and a warrant meeting all the requirements of the Fourth Amendment.

Corporate behaviors become more egregious when one realizes these corporations readily cooperate with foreign governments and provide access, information and account data accumulated from the customers in those countries. Yet they refuse to cooperate with the National government in criminal investigations.