On the Suzuki Court

—

 

From the journal of Benjamin Suzuki:

 

55. While on the Oregon Appellate Court

At home, Salem Oregon

A Guantanamo inmate, said to be forced fed due to a hunger strike, commits suicide, despite “extraordinary measures” to save him. May, 2009        

 

Astounded, we cave his chest to grasp his being, incredulous that any would flee our promise; but he is gone, his House broken of its own hand, all for words which ever distance us. God’s Word shattering Itself, breath of Word a gale which drowns lungs to bursting, or suffocates lungs collapsed in onslaught. Another failed experiment, no vessel able to contain the love of Word for Word, giving until it hurts no more.

 

We imprison for love of Word, layer upon layer, Word housing Word until the inner sanctum collapses from its necessary preciousness. Martyrdom the end result of all faith, Word fleeing its maker, fleeing Word, only the degree of sacrifice varies. In finitude God is a crushing, His prophets all call to flee, He imploring our linger. Manifest as his vessels, we burst; or bleed ourselves away, mercy to others.

 

So we imprison in fear what others will see in us. At Guantanamo we contain, all the finite can do, this our being, ever dense in containment until we implode escape. Such is salvation, martyrdom Word’s self escape.

 

Listen to the prophets who fear God: run from Being, fail God’s Word. Someone else will ever come to precious it. They cannot be stopped. God never gives up–that is all Being is.

—

 

From the journal of Benjamin Suzuki:

 

56. While on the Oregon Appellate Court

At home, Salem Oregon

In Vienna, Austria, a Sikh sect leader is killed by a rival sect leader. The following day, Sikh riot in Indian Punjab, torching rows of cars into the night. May, 2009   

 

Exquisite sacrifice letting us reach our hand far, to world play as do other faiths, to release our being from place, to act a universe, truth untethered. Celebratory corpses of cars which take us nowhere, we traveling into insignificance. Acts distant make us, release us from life lived; significance lies in imagination so distant it cannot be tested.

 

Grand holiness comes through snuffing life, words repetitious made granite through absence. We are alchemists of the holy, distilling significance through rivalry. Faith splinters to make itself, heroes extensions of their assassins, and conversely. We audience outlive both, children of mated words. What greater grace than to make an audience elsewhere?

 

Vienna, marvel our petty rage into devotion. Escape us our prison of vehicles never ours. Turn our blunt childhoods into starred story. Make us important as we now, in our flames, do for you.

—

 

From the journal of Benjamin Suzuki:

 

57. While on the Oregon Appellate Court

At home, Salem Oregon

The Russian President of Ingushetia, formally a general in the Russian Federated Army, survives a suicide bombing. Ingushetia borders Chechnya, the latter pacified after a prolonged Islamist-Nationalist insurgency, now boasting a 99% electoral vote for its President. June, 2009      

 

God’s tiny voice refuses silence, yelps an importance by becoming large in obscure locale, hear me, notice me, don’t look there but here, see me all of life until the smoke clears and we all are gone. I make your theater and close your run; what else could omnipotence be?

 

Not the world theater of Iraq, but that shouldn’t surprise: look here, not there, here is where I ever am. God is a realist, no untouchable abstraction, His explosions reminder that here is all there is. He rails against His miraculous elsewheres, don’t look there, but here. As though Hummingbird should fume indignant against its various species, yet speciation is the only way for capital It to touch the world. In some out there It must be, but furious It is that this point can only be made by being a species in the instance.

 

The Platonic fight against entity is what God is, his ever form greater dark where explosions flare disparate and simultaneous beyond any eye to see. The view from nowhere, a philosopher penned: our escape from God instanced in the inescapable here.

 

I write of American interventions, but here is indifferent to that. American or not, flame will flare, my American focus Hummingbird trying to stop speciation through a blind eye. I can see creationist’s hatred of evolution: this robin is Robin, my God is God, particular and abstract are the same; so embrace me beyond the here I know will perish–make me an everywhere as are You, for is not that immortality?

 

Darwin’s great enterprise to deconstruct species has left us with unreachable abstraction. We now know females of some species selectively abort some male genomes. I read females multiply mated in a male genome ratio of 20:1 can nonetheless produce offspring overwhelmingly with the rare male seed. Where is species? A closed set capable of fertile matings no long works. The intangible abstract flees past certainty into realized probabilities. Hummingbird out there, but uncertain what heres can be. We still need abstraction real, but cannot tell which ones, or where. Darwin has left us with an indeterminate abstract realism, Plato fractured, a world of local jumps, perhaps everywhere connected in an indeterminate number of jumps, but place hop to place only known after the act.

 

But God wants more, direct connection to every where, known or not. So He explodes, not to show here He is here, but to show distant eye everywhere can truly be. God explodes to protest our incremental incompleteness, creationists eager ready on the side to bestow unknowing when we have had our fill of our fragmented world of proofs.

 

And the body count in Ingushetia grows, one connective jump which pulls me to heres I would rather not know. Be comforted: Darwin evolved tells us that words do not take us to their every instance.

—

 

From the journal of Benjamin Suzuki:

 

58. While on the Oregon Appellate Court

At home, Salem Oregon

During protests over what seems almost certain electoral fraud in Iran, a young woman, Neda, “Voice,” is haphazardly shot, her face, last free moments, and death distributed over Twitter and the internet. June, 2009    

 

There is no reason for this worship. Deaths anonymous constant, one found, concressed into time frozen, all the silent losses made meaningful by the spied unplanned exit of one. Democracy in a face, in the unfathomable distance between life and death; in the unfathomable distance between life and life. We preserve her unlived life in a triumph which must ultimately leave all anonymous. We use words knowing not where they came; we use deaths unawares they ever were. Ever we are the wavefront of unknown, unimaginable before, falling into oblivion in the forward.

 

Voice does not matter, but innumerable Voices, each heard only by a few, do. Voice is the astonished reality that suffering out reaches any comprehension we make. There will always be too many Voices to hear, to many words put together to read. In the too many is the reality never known which nonetheless makes all significance, which drops the particular as refuse to swell it again into anonymity.

 

Power lies in sidewise move from the swell, in refusing to block, in letting someones, somewheres, hear the Voices we cannot. In that letting is my hope, but it does not take away my fear. I do not know what humanity is, but know there is no we which is humanity. Humanity is a breaking of species, and it cares no iota for our hearth us’s. We have yet to dodge the engulfing importance of something called God.

 

[Archival note: concressed seems derived from Alfred North Whitehead’s concrescence, where a particulate reality, an indivisible actual entity, makes abstractions concrete in some instanced mixture; whether Suzuki’s use is sensible is beyond Archival understanding.]

—

 

From the journal of Benjamin Suzuki:

 

59. Shortly after Suzuki’s Confirmation Hearing, before full Senate vote

Monticello library, Monticello, Virginia

 

The California Supreme Court, 6-1, affirms California Initiative Proposition 8, which forbids recognition of same sex marriage in the State. Proposition 8 overturns a State Supreme Court decision, 4-3, which held such denial violated the State Constitution’s Equal Protection Clause. Three of the Justices in the first majority switch on the second issue.

 

[Archival note: The California Supreme Court upheld Proposition 8 in May, 2009. Since the Suzuki Court reviews another challenge to Proposition 8 (Augustine Copeland et. al. v California), the indeterminate time line of the Suzuki Court suppresses the real California Court dates; both California Court decisions, however, exist in the Suzuki universe.]            

—

 

Jefferson and California’s Proposition 8

 

William Barclay Napton (1808-83), born and raised in New Jersey, matriculated in law at the University of Virginia, later slaveholder in Missouri; proslavery, prosuccession, forced to live wartime in the ambivalent Union State he adopted; antebellum State Supreme Court Justice, sidelined as war approached, returned to that Bench during Missouri’s resistence to Republican Reconstruction; early in maturity a Jeffersonian who thought rights complete. As a law student in Virginia he abstracts three Jefferson quotes:

 

…governments are more or less republican, as they have more or less of the popular election and control in their composition; … believing as I do that the mass of the citizens is the safest depository of their own rights, and especially that the evils flowing from the duperies of the people are less injurous than those from the egoism of their agents…

 

 Another:

 

[republic] means a government by its citizens in mass, acting directly and personally, to rules established by the majority…

 

 But the third quote Napton abstracts chaffs the others; Napton begins

 

[William] Blackstone [Commentaries on the laws of England, 1765-9], in treating of the absolute rights of individuals, says: “Every man, when he enters into society, gives up a part of his natural liberty, as price of so valuable a purchase.”

 

 He then quotes Jefferson:

 

Our legislatures are not sufficiently appraised of the rightful limits of their powers; that their true office is to declare and enforce only our natural right to commit aggression on the equal right of another; and that this is all from which the laws ought to restrain him; every man is under the natural duty of contributing to the necessities of society; and this is all the laws should enforce on him; and no man having a natural right to be the judge between himself and another, it is his natural right to submit to the umpirage of an impartial third. When the laws have declared and enforced all this, they have fulfilled their functions, and the idea is quite unfounded than on entering into society we give up any natural right.

 

 Rights are not majoritarian after all, except so far as a mass might defend its constituent rights. But such defense is a means of enforcement, not identification, of natural rights. These rights are attached to individuals, yet, as Jefferson notes, are revealed as social events: no man having a natural right to be the judge between himself and another forbids social dominance as arbitrator of outcome. Yet such was exactly the case with slavery.

 

Rights articulated are takings on the property of others. The right stops social dominance, and someone is thereby made less than he was. If rights are articulated as defense, they are social products in outcome; while attached to individuals, they are not defined by individuals. Nor are they defined uniquely by any social process–as slavery shows. We are left with a concept without a home. Maybe Jefferson knew this.

 

The first two Jefferson quotes would seem ideally implemented in California this day. Constitutional amendment there is populist; Supreme Court Justices are subject to recall by initiative. The Court’s extension of equal protection to homosexual marriage has been annulled by an electoral majority. Unlike slaves, homosexuals could vote in the contest. But social dominance, denial of equal right to commit aggression on the equal right of another (ante), is manifest by the electoral outcome itself. Electoral majorities are not outcomes of natural, individualistic rights. Majorities are themselves a form of social dominance, albeit most fluid in potential. Populism fails the removal of social dominance. Rights may be affirmed by majorities, but, de jure, not so denied. Which leaves rights birthless.

 

Jefferson thought liberty a product of communities, but not all communities, even less of simple propinquity. Presence is not community, something slaveholders and present television Americans would take as first principle. In 1798 Jefferson lamented “foreigners,” often traveled men of commercial import, selected to juries:

 

triers of fact are habitually taken in [Virginia] from among accidental bystanders and too often composed of foreigners attending on matters of business [at the courthouse] and of idle persons collected for purposes of dissipation, and in cases interesting to the powers of the public functionaries may be specially selected from descriptions, of persons to be found in every county, whose ignorance or dependence renders them pliable to the will and designs of power. [Petition on election of jurors, 1798]

 

“Foreign” not necessarily to the United States, but Virginia. Foreign commerce disrupted locales, obligated locals to debt and credit distant beyond the State, so removed such individuals from local right and wrong. Triers of fact tried more than fact. Not always a bad thing. But Jefferson, even in war, thought ill of foreigners.

 

I was pleased to find … that the [Virginia] Assembly had restrained their foreign trade to four places. I should have been more pleased had it been one. … Your letter informs me of the exception in favor of citizens [Virginians engaged in foreign trade may enter any port], an exception which by the contrivance of merchants will I fear undo the whole. The popular objection which you mention that the articles passing thro’ so many hands must come at a higher price to the consumer, is much like the one which might be made to a pin passing thro’ the hands of so many workmen. Each being confined to a single operation will do it better and on better terms. [Jefferson, from Paris, to Madison, Nov. 11, 1784]

 

Confined to a single operation: piecemeal diffusion of foreign products, along prior routes of trade within the State, such as with nails produced, traveling far with no locally monopolizing hand. Price is less important to Jefferson than ties of credit and debt preserved among families, a conservative stance, privileging persons known over a monetized people.

 

Stance not anti-foreign but anti-commerce. Writing to Jefferson the same year, Madison hopes for Western expansion supported by foreign commerce, through the Mississippi:

 

By a free expansion of our people the establishment of internal manufacturers will not only be long delayed: but the consumption of foreign manufactures continued increasing: and at the same time all the productions of the American soil required by Europe in return for her manufactures, will proportionately increase. The vacant land of the United States lying on the waters of the Mississippi is perhaps equal in extent to the land actually settled. If no check be given to emigrants from the latter to the former … for twenty or twenty-five years we shall consequently have as few internal manufactures in proportion to our numbers as at present and at the end of that period our imported manufactures will be doubled. [Madison to Jefferson (resident in Paris), August 20, 1784]

 

The goal is an insulated, agrarian society, even at the expense of internal prices. Madison continues

 

It may be observed too, that as the market for these [foreign] manufactures will first increase and the provision for supplying it will follow, the price of supplies will naturally rise in favor of those who manufacture them. On the other hand, as the demand for tobacco indigo rice corn etc. produced by America for exportation will neither precede nor keep pace with their increase, the price must naturally sink to favor of those who consume them.

 

That is, the relative cost of foreign manufactures to staples will increase, curtailing scale of plantations, so limiting the value of slave labor. Before explosive growth in cotton (facilitated by the invention of the cotton gin), westward agrarian expansion under difficult, slow horse transport would induce the socio-economic death of slavery, free labor and localist rights formation triumphant. So Jefferson, writing to Madison from Paris, upon hearing the Federal Constitution near completion, holds faith

 

as long as we remain virtuous; and I think we shall be so, as long as agriculture is our principal object, which will be the case, while there remains vacant lands in any part of America. When we get piled upon one another in large cities, as in Europe, we shall become corrupt as in Europe, and go to eating one another as they do there. [Dec. 20, 1787]

 

This view was, strangely, espoused by other intellectual slaveholders. At the Federal Convention, Charles Pinkney of South Carolina holds agrarian localism the genesis of rights:

 

The people of the U. States are perhaps the most singular of any we are acquainted with. Among them are fewer distinctions of fortune & less of rank, than among the inhabitants of any other nations. Every freeman has a right to the same protection & security; and a very moderate share of property entitles them to the possession of all honors and privileges the public can bestow: hence arises a greater equality, than is to be found among the people of any other country, and an equality which is more likely to continue … because, in a new country, possessing immense tracts of uncultivated lands, where temptation is offered to [westward] emigration & where industry must be rewarded with competency, there will be few poor, and few dependent–every member of the Society almost will enjoy an equal power of arriving at the supreme offices & consequently of directing the strength & security of the whole community. [James Madison, Notes of Debates in the Federal Convention of 1787, emphasis supplied]

 

Soon comes a remarkable prototype of equal protection:

 

…the vast extent of unpeopled territory which opens to the frugal & industrious a sure road to competency & independence will effectively prevent for a considerable time the increase of the poor or discontented, and be the means of preserving that equality of condition which so eminently distinguishes us…

 

an equality of condition which relies on localism to manifest difference, at least spatially:

 

…no two people are so exactly alike in their situation of circumstance as to admit the exercise of the same Government with equal benefit: that a system must be suited to the habits & genius of the people it is to govern, and must grow out of them.

 

The people are spatially fractured, as is rights formation thereby. Ex-President Jefferson will reconcile the quotes Napton abstracts (ante) by embracing localism as the essence of republic:

 

divide every county into hundreds [i.e., micro-counties of about 100 adults each], of such size that all the children of each will be within reach of a central school in it. … this division looks to many other fundamental provisions. Every hundred, besides a school, should have a justice of the peace, a constable and a captain of militia … Every hundred should elect one or two jurors [to attend trials in the greater macro-county] to serve where requisite, and all other elections should be made in the hundreds separately, and the votes of all the hundreds be brought together [as outcomes of the hundreds, not pooled individual counts] … These little republics would be the main strength of the great one … [Jefferson to Governor John Tyler, May 26, 1810]

 

Populism, extending beyond democracy of local, sustainable transport, is anti-republican. More so referendums pooled into single State electorate. Madison urged the Constitutional Convention in fear of such populism:

 

…as different interests necessarily result from the liberty meant to be secured, the major interest might under sudden impulses be tempted to commit injustice on the minority … We cannot be regarded, even at this time, as one homogeneous mass, in which ever thing that affects a part will affect in the same manner the whole. In framing a system which we wish to last for ages, we should not lose sight of the changes which ages will produce … How is the danger in all cases of interested coalitions to oppress the minority to be guarded against? [Madison, at the Constitutional Convention, Madison, Notes, ante]

 

In the Louisiana Purchase of 1803 Jefferson sought to forestall the change of ages by producing, if not a homogeneous extended mass of identical intent, heterogeneity distanced from itself through space. The Missouri Compromise of 1820, curtailing the spread of slavery to balance Northern and Southern socio-economies in the Senate, gutted his grandeur. He rightly guessed that concentrating forced labor would induce innovation in its use. That innovation would perforce dominate locally, suppressing householder socio-economics which produces and polices “natural rights.”

 

[The Missouri] question, like a fire ball in the night, awakened and filled me with terror … a geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated … The cession of that kind of property [slavery], for so it is misnamed, is a bagatelle which would not cost me a second thought if, in that way, a general emancipation and expatriation could be effected. [Jefferson to John Holmes, April 22, 1820, emphasis original]

 

Ignoring Jefferson’s struggle with racial biology, the density of released slaves worries:

 

Of one thing I am certain, that as the passage of slaves from one State to another, would not make a slave of a single human being who would not be so without it, so their diffusion over a greater surface would make them individually happier, and proportionately facilitate the accomplishment, by dividing the burthen on a greater number of coadjutors. [ibid, emphasis supplied]

 

Emancipation can be local, rights formed locally, sparsely distributed slaves treated incrementally move as equals in the social economy, until naturally situated for emancipation.

 

A fantasy. Yet it reflects an underlying proposition of Jefferson’s thought: while rights are of the people, the people is manifest by social relations grounded spatially. Elections, in themselves, need form no social tie, and may well erode prior ties. For Jefferson, a right formed at one locale may pass into another, confronting social dominance as it does. The people birth rights at one locale, rights which then do battle with the people elsewhere. Justice entails the transportation of rights from one locale into others, where they may well not be wanted. Populism fails Jefferson, for it fails republics.

 

From which I conclude there is no American people, but peoples, non-racially, within America. Both the identification and the implementation of rights requires this national sundering, a perpetual civil war of Justice. This sundering is mythological. Young future slaveholder Napton (ante) writes in 1833

 

the Constitution of the United States was not formed by the aggregate of people of the Union, absolved from their social compact, whereby they had incorporated themselves into States, and afterwards as on People … Nor was it formed by the governments of the States. The Constitution was therefore formed by the people of the States in their corporate capacity and the government is Federal.

 

Yet a Federal Constitutional Amendment can override the people of a State, with amendments preserved by a 3/4 supermajority of States for removal. Justice Thomas has said that the Founding “split the atom of sovereignty.” Not enough physics! The Founding made of the people a quantum event.

 

The California Supreme Court has now ruled that in their State there is no ratchet on rights retention; that the formation and removal of rights are identical processes. It could have gone otherwise. Their constitution allows alteration by “revision,” requiring 2/3 Legislature approval, then popular vote; or “amendment” by direct initiative. Since both require electoral approval it need not be that the alternatives are simply different paths to the same end. “Revision” implies change of prior content; “amendment” need not. Judicial extension of equal protection employs prior content. Proposition 8, not approved by the Legislature before ballot, would then be a revision and constitutionally void. A constructive principle of forced exclusive content [that, where constitutional provisions might overlap in content, where natural sense does diverge therein, the provisions should be construed as having maximal independent content; see Session 3 of the Suzuki Nomination Hearings–Archivist] compels the second reading. Initiative petition and Legislative resolution would be identical in outcome only if the same constitutional words are used, which is not the case; an intellectual defense against the People, but one compatible with Madison’s fear of majoritarian excess at Convention.

 

(Such a principle of forced exclusive content also limits originalism. Even when an original constitutional provision is so interpreted, a later amendment, not necessarily to the provision, yet employing some overlapping content to it, can thereby alter available originalist sense in the prior provision. “The living Constitution” thus haunts originalism through the originalist process of amendment.)

 

The three same sex marriage Justices upholding Proposition 8 felt constrained by majoritarian precedent. In 1979, an initiative forbade school busing as a solution to equal protection challenge (California Constitution, Article I, Section 7, subdivision (a)). The lone dissent against Proposition 8 (Moreno, J, dissenting) notes that a solution does not reach principle. A weak dodge--for every right there needs be a remedy, as Madison says in the Federalist. Similarly, an initiative forbade the California Supreme Court from declaring death cruel and unusual punishment (Article I, Section 27), annulling a prior decision of that Court (People v Anderson, 1972). In the 70’s and 80’s, the California Court refused to face down its angry people. Today’s Court affirms this judicial fear. In California, no right is ratcheted. Only 14th Amendment incorporation of the Bill of Rights binds. Rights are thereby retained by process most undemocratic.

 

If the People manifest is a kind of quantum, ephemeral, event, producing something which may be preserved, populism has gotten the role of electoral majorities quite wrong. If answer to the rights quandary may be, it must lie somehow in our mythology, in the quasi-events making the Constitution, in the inconsistency in use of “people” in that amended document. The 9th and 10th Amendments, seemingly unimplementable, are telling us that the original document got something quite wrong; and only there, save for the Constitution’s Preamble, do we find the word people. We need to understand why that word was inserted late into the document.

 

American jurisprudence tunes the forces of life and death, allowing autonomy to come–and not. The California Supreme Court has capitulated to nature. Very Un-American.