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.

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.

IF BY SEA

By George C. Daughan

This book tells of sea and lake battles and other activities of the United States Navy through 1815. The best chapters are of navel efforts during the American Revolutionary War. The author mentions but lacks detail about the ships and the weaponry: American ships were better constructed, why? They carried more cannons, and had better cannons than the British, French or Spanish. He also mentioned that the American sailor was well treated, although that policy did not last. (See Two Years Before the Mast)

The book is woefully short when it enters the fields of finance and politics. The author’s reading of sources after 1789 is painfully incomplete. The United States had a huge debt which all the country wanted to pay or remove; Hamilton’s initial effort to make all debt obligations of the federal govcrnment – like what happened after 2008 – failed. The Great Compromise of 1790 is partially relayed.

The author overlooks Hamilton’s close relationship with a British espionage agent, Colonel Beckwith. He laments that Madison and Jefferson (Republicans) wanted to set and follow Constitutional rules and procedures. In 1795 Hamilton arranged for John Jay to negotiate the Jay Treaty (about trade) with Britain, yet Hamilton later called Jay “an old woman” for delivering such a lame treaty. The author also seems to approve of the Alien and Sedition Acts, despite the direct conflict with the First Amendment of the Constitution.

Much of what John Adams did as President is approved, although he was away from the seat of government for two years. Adams began building frigates, yet when war came 15 years later, those ships were bottled up in harbors or defeated on the seas, just as the Republicans said would happen during any war with the British. Adams did successfully negotiate a peace treaty with the French (1800).

In the meanwhile throughout Adam’s administration, Hamilton was a war monger. He wanted to lead American forces to remove French and Spanish rule from North America with British backing. No American wanted that: Too much debt; too much military and war; too British – no American wanted the British close to American borders. Americans did not want to resume a political relationship with the British. Hamilton failed in his military ventures by 1800, and later that year he accused Adams of incompetence. [ Note that Aaron Burr took the plans of his good friend, Hamilton, and tried to make them work. He was accused of treason and put on trial, 1807.]

The Republicans willingness to favor peace and not increase the Navy or to finance campaigns left the waters calm. Diplomacy worked during the peace. The United States seemed a pacific nation. Napolean likely believed he would sell Louisiana to America and in the future reconquer it. For the price of the military budget for less than 20 years, the Republicans bought Louisiana and doubled the size of the country. The author of If By Sea pooh-poohs this second greatest accomplishment by American diplomats. Even Hamilton approved, and American finances did withstand the increase of debt.

The author is entirely correct that the Embargo of 1807 was ineffective and likely the wrong policy. As happens embargos were used and threatened (1794), and they were widely and popularly supported before and during the American Revolution. (see histories by T.H. Breen) There is no mention of this historical context in If By Sea, and the applicability of the policy, earlier, and other effects later.

A primary fact which allowed Americans to prevail on America’s lakes during the War of 1812 was the British blockade. American shipping was at a standstill; no ships in, or out. Sailors went to the lakes. On the other hand the British were far from the ocean up a river frozen for half the year. They did not their Navy ships and sailors trapped, so the British were using trappers, farmers and fur traders as sailors. If the war had lasted into 1815, the British would have had a difficult time on the lakes.

NEW YORK CITIERS

NEW YORK CITIERS

Citizens of New York state are New Yorkers, but an odd breed of beings are New York Citiers. This has always been the case, noted during the American Revolution and through the Constitutional period. Three examples provide this distinction – the separation of New York Citiers from other Americans – and tell that New York Citiers are selfish, irrational, duplicitous, depraved and unreformable.

In 1775 New York Citiers were conflicted about the Britain and King or Americans and freedom. No one wanted to stand in one camp or the other: “…it had to receive the rebel generals on the same day that it must welcome back from a visit to England its royal governor…Fortunately, they landed there several hours apart, so that “the volunteer companies raised for the express purpose of rebellion,” as the loyalist judge, Thomas Jones, put it, “the members of the Provincial Congress….the parsons of the dissenting meetinghouses, with all the leaders and partisans of faction and rebellion,” would meet the generals at four in the afternoon, and conduct them to Leonard Lispenard’s house, “amidst repeated shouts and huzzas,” and, at nine o’clock, “the members of his Majesty’s Council, the Judges of the Supreme Court, the Attorney General…the Clergymen of the Church of England,” and so on, all the dignified, respectable, highly placed officials, “with a numerous train of his Majesty’s loyal and well affected subjects,” could meet the Governor and conduct him, “with universal shouts of applause,” to the residence of Hugh Wallace, Esq. “But strange to relate… those very people who attended the rebel Generals in the morning… and now, one and all, joined in the Governor’s train and with the loudest acclamations… welcomed him back to the colony…What a farce! What cursed hypocrisy!”

Christopher Ward, The War of the Revolution, NY, MacMillan, p. 102.

New York City was the last place on the original 13 states that the British occupied. The British liked the place and left their mark, concealing the abhorrent, sinful and arrogant attitudes and moods of the people existing in that place. I often wonder whether the negotiators of the 1783 Treaty of Paris did not make a mistake: Leave the British in possession of New York City in exchange for giving the United States of America Canada.

Of course, no one would trade New York City for twenty-five cents, so neither the Canadians nor the British would go for it today. New York City has one major drawback, its people:

“With all the opulence and splendor of this city, there is very little good breeding to be found. We have been treated with an assiduous respect. But I have not seen one real gentlemen, one well-bred man, since I came to town. At their entertainments there is no conversation that is agreeable.

There is no modesty, no attention to one another. They talk very loud, very fast and all together. If they ask you a question, before you can utter three words of your answer, they will break out upon you again, and talk again.

Page Smith, John Adams, NY, Doubleday, 1962, vol. 1, p. 166.

As stated, the primary economic activity of New York Citiers is talk, from any man or woman from that place. Americans get to experience New York City on TV every minute of every day. Almost every New York City journalist asks a very imperfect question and the interviewee guesses at the desired answer. The journalist, in New York Citier fashion just like John Adams reported, interrupts and sometimes answers his own question while arguing with the interviewee and asking another imperfect question. In that process a few dozen cliches, slogans and homilies, are spit out in an attempt to direct the interviewee onto the politically correct answer. New York Citiers are obviously eager to tell their individual stories to captive audiences and interviewees, silent and not heard. Any interviewee who doesn’t comply with these broadcast rules is never interviewed again.

But talk is cheap, especially today when mouths are disconnected from brains frequently addled by chemicals or sheer ignorance. Excessive jabbering on TV comes from great insecurity, much like rulers of a totalitarian society: “…no matter how enlightened, [they] will never surrender – a constantly exercise – their power to hector, warn, and admonish, in brief to pester and bore their helpless subjects.” (Adam Ulam, The Fall of the American University, N.Y., The Library Press, 1972, p. 170.)

Other than what New York Citiers chatter about incessantly today, like each of them is living in a Woody Allen movie, they were obsessively nonsensical in the 1780s. James Madison wrote George Washington a letter discussing the suitability of New York City as the capital of the United States, but he kept referring to the people of that place:

It seems to be particularly essential that an eye should be had in all our public arrangements to the accommodation of the Western Country, which perhaps cannot be sufficiently gratified at any rate, but which might be furnished with new fuel to its jealousy by being summoned to the sea-shore & almost at one end of the Continent. There are reasons, but of too confidential a nature for any other than verbal communication which make it of crucial importance…

The extreme eccentricity of [New York City] will certainly in my opinion being on a premature and consequently an improper choice. This policy [Capital of New York City] is avowed by some of the sticklers for this place, and is known to prevail with the bulk of them. People from the interior…will never patiently repeat their trips to this remote situation…

Papers of James Madison, vol 12, p. 343, August 24, 1788.

Madison is not the sort of person to come out and complain in a letter. He’s willing to voice reasons and reactions to New York City in a personal meeting, but he couldn’t avoid noting the extreme eccentricity present in 1788. It’s more true today. It is a place that derives all the benefits of having 33,000 police officers on its force. How have those cops done? Street crime is down, but in New York City white collar crime is unknown. Did Wall Street executives always comply with all laws, from 2005-2010?

If New York City is the center of journalism, what did journalists do over the last ten years to uncover and report the greatest financial crimes committed since the 1920s? Have any articles examined or explained high speed trading strategies, and how those programs are analogous to “pooling” arrangements made by Wall Street traders 90 years ago? Has anyone ever noticed that in his book on the Great Depression, John Kenneth Galbraith has a chapter entitled, “In Goldman Sachs We Trust,” and why is anyone trusting that institution and those people these days? New York City may be the center of advertising, but does anyone want to watch ads today? Larry and Darin did a lot better than the guys on “Madmen.”

In the early 1970s Richard Nixon brought the country to its knees by depleting trust and confidence in government. In the last ten years through Wall Street New York Citiers have attacked America and Americans, and afterward seeking protection in security laws, in privilege and immunity, in trade secrets and confidence as well as a financial mafia pledged to silence. Trust and confidence nationwide remain uneasy. Any investor would have been better off investing with the mob, than with most institutions on Wall Street. New York Citiers turned their private exposure into public obligations through the obscenely wild expansion of debt and using the Federal Reserve balance sheet. This is the status of New York Citiers, nothing to applaud and everything to detest – pride and arrogance in their insularity. It has been a problem for this country since the founding.