Senate Judiciary confirmation hearings of Benjamin Suzuki: 1. First of five sessions

Above confluent hatreds

Birds call identically

Benjamin Suzuki

[Like most of my colleagues, I voted for [Benjamin Suzuki] more for [President] Hazelton’s sake than anything else. Hazelton was in the first year of his first term, and he didn’t need a slap in the face from his own [Republican] party. And Suzuki looked like our ticket, in some ways. He was against Roe [v Wade] and for vouchers. He flirted with strict construction. He seem to condemn all the right things. But he struck me as a fool in the Hearings. If not for Senate loyalty to Hazelton, his confirmation statements would have done him in. In the end, like many others, I listened to what I liked and glazed over the rest. I thought him likely to shake up the Court, and thought that would be fine. Whatever he wanted he wouldn’t get; but he seemed likely to roll back what was wrong.

I failed to consider the power of an honest fool. You never know what they’ll do next. Now we know. We live in a different country. Yes, the right to bear arms has been secured, but many call the price too high. We have a Constitutional Amendment which explicitly overturns a Supreme Court decision. We have a transformed primary and secondary education system with more religion than I thought possible, with secularists congregating among themselves as well–and with a considerable amount of cheating to the detriment of our children. We have more overt pluralism than I thought possible, certainly more than I, and many others, can stomach as compatible with American life. We have populist battles in the States over the definition of rights. We have a “free exercise” religion employing an admittedly dangerous drug, all because of the bizarre rationale of Hawaiian–Hawaiian–courts. We have State courts clogged with Federal civil suits; we have jury nullification, if anyone noticed; we have civil juries unbounded by statute in awarding damages; and a common law system that looks like toddlers playing professional basketball. Abortion has become a contest to be the most Catholic. Guantanamo is just another Federal prison under law. Congress has lost the power to suspend writ. And sex has become a free ticket for American residency of illegals. In all of this, the Court has become more powerful, not less. In many cases this power came from the Court saying what it could not do. Suzuki made impotence a form of power, damn him. And he left right in the swell of things. Would I have voted for him knowing where things went? He would say if I knew that there would have been no reason for him to be on the Court. Nullifying man, Suzuki. I’ve never encountered a more nullifying man.

Senator Roy Allred of Montana (Republican)

Chairman of the Suzuki Confirmation Hearings

Reminiscences of a Mountain Lion]

[T]here is an intoxication of the mind in all of this. It’s

easy to forget that after all the words a hurt may await.

Senator Jon Werren of Vermont

Fourth Session

You don’t want people to come to you; you want coalitions to shift and shift.

Senator Mary Talbot of Nebraska

Fifth Session

I want to be your Justice. But a judge, in each act, each decision, is a failure of potential, a failure hoping to keep the potential of others afloat. It is the contending world which comes to court which is the hope and envy of the judge. I want to be your Justice. Somewhere out there, ever beyond my site, is the reason why.

Benjamin Suzuki

Fifth Session

(final remark)

First Session

Chairman Allred of Montana, primary interrogator

(Equity, Original Intent, 9th Amendment, Involuntary Servitude, Ogden v Sanders, Free Labor, Slavery, Dred Scott, Bloody Kansas, Oregon Constitution, School Vouchers)

Chairman Allred of Montana (Republican): So, you’re from Oregon.

Benjamin Suzuki: No, I was born and raised in Illinois, but perhaps that is worse.

Allred: Well, I want to address family responsibility.

Suzuki: Yes, Senator.

Allred: The law protects us all, does it not?

Suzuki: It can.

Allred: Can, but need not?

Suzuki: Yes.

Allred: Would you elaborate?

Suzuki: You know the answer, Senator. The law enables action; but by enabling some action we preclude, often proactively, other actions.

Allred: So there is proper behavior, and the law should protect it?

Suzuki: Yes, that is unavoidable.

Allred: You say that as if you are disappointed or resigned.

Suzuki: Human action is open ended; we never know where it goes once beyond our sight. To be “proper” is to be kept in sight.

Allred: Platitudes don’t raise families, Judge.

Suzuki: No, they don’t. Hard choices raise families.

Allred: Yes, that’s right. <pause> We all know why you were nominated.

Suzuki: Because I am Japanese-American?

Allred: The people are angry, sir. That is why I am here.

Suzuki: I know. And not just you.

Allred: Yes. Now. It was your stance in Wade v Oregon, in the Oregon Appellate Court.

Suzuki: The opinion I wrote, signed by Judge Foster, has been overruled by the Oregon Supreme Court. And the United States Supreme Court denied certiorari.

Allred: That cowardly act is one reason why you are here, Judge.

Suzuki: No Senator, not cowardly. There was no ground for federal appeal.

Allred: <pause> Your written opinion was quite innovative.

Suzuki: Well, I have never seen the view promulgated in an opinion of a controlling court; nor in a dissent.

Allred: Now, I’ve been told–I had to be told, you know–I didn’t get elected by steeping myself in court opinions….

Suzuki: Yet here you are, speaking of court opinions.

Allred: Yes, well, that’s the point.

Suzuki: I know.

Allred: Well. Now, I’ve been told that your opinion was innovative in two ways. One doctrinal, the other in process.

Suzuki: As I said, I have not seen the thesis in a controlling court.

Allred: As I understand this, you argue that the Thirteenth Amendment, no, I mean the Oregon Constitution’s version of that amendment, means more than we have heretofore thought.

Suzuki: Historical construction lead me to this view.

Allred: Original intent? You do not strike me as one of those.

Suzuki: As one of you?

Allred: Sir, the Constitution is what we all rely upon.

Suzuki: But not in the same way.

Allred: The people will not have a false life imposed upon them.

Allred: What are you, Benjamin Suzuki? Do you believe in the original intent of the Founders?

Suzuki: I am President Hazelton’s nominee for Chief Justice. Do I believe in original intent? I believe it unavoidable.

Allred: Let’s not play with sophistry, Judge.

Suzuki: That is not my intent.

Allred: What do you mean–unavoidable? That original intent is unavoidable?

Suzuki: Senator, as you said–the Constitution is all we have.

Allred: No, Judge. I said the Constitution is what we all rely upon.

Suzuki: Yes. I stand corrected. There is a crucial difference. But a judge relies uniquely upon it.

Allred: Really?

Suzuki: <pause> Again I stand corrected. Can we agree that a judge must make his arguments based on the Constitution, even though motivation often comes from elsewhere?

Allred: <pause> You know, Judge Suzuki, before your opinion I don’t know if I could agree with that.

Suzuki: Senator, that opinion is nowhere law.

Allred: I know. But let’s talk about it anyway. That’s why you are here. Original intent. What is your view?

Suzuki: If we remove the historical basis of thought we are ungrounded. Personality then trumps reason. If I am to be believed, or at least respectively heard, I must bind myself to concepts, even if they lead to places I would rather avoid.

Allred: Well, that’s nice. What does it mean?

Suzuki: It means that decision based on a personal view of equity will ultimately cause catastrophic dissension.

Allred: Judge, I am of the view that catastrophe need not be such a bad thing.

Suzuki: <pause> Catastrophe is unavoidable. But there are ways of channeling catastrophe.

Allred: Let’s cut the chase: are you saying the past jurisprudence of the Supreme Court has often been wrong?

Suzuki: In process, yes. In outcome–that has yet to be determined.

Allred: So–you are against equity to avoid catastrophe.

Suzuki: To be against equity is like being against motherhood.

Allred: Do not play with me, Judge.

Suzuki: Not my intent, Senator.

Allred: I ask you now to be precise. What have been the implications of personal views of equity on the Court?

Suzuki: The genesis of Original Intent. The demands placed on jurisprudence were seemingly unsupportable by constitutional text. The Court, albeit fitfully, retreated to the Equity Clause of Article III, ultimately framing jurisprudence as balanced “liberty interests.” Equity demanded a generalized liberty interest, duly placed in the Fourteenth Amendment’s Due Process Clause. This is what constitutional commentators call the “O’Connor Juncture.” Equity became the balancing of liberty interests.

Allred: You’re opposed to this?

Suzuki: A liberty interest must be revealed, defined, measured. There being no textual support for these, silence has left the matter to the minds of the Court.

Allred: Which has lead to the so called right to an abortion, and the right to sodomy.

Suzuki: <pause> That was, I believe, the articulated path.

Allred: You know, Judge, politics is more subtle than the media credits. “Articulated path.” That makes me think there may be another path. I’m not certain you are on my side, Judge Suzuki. I don’t want another John Paul Stevens or David Souter. Now, with Justice Scalia, you knew exactly where he stood–from the beginning.

Suzuki: Sides reticulate unendingly. To expect a constitution to always be on your side is to pray for monstrosity. A constitution works because failure is passed from person to person–like the children’s game “hot potato.”

<pause>

Senator. I made a seemingly flippant remark equating disdain for equity with disdain for motherhood. May I return to that?

Allred: Please enlighten us.

Suzuki: Equity is a leveling process; motherhood, at bottom, is the reverse. Equity cannot but ultimately cause affront to the principle of unique existence underlying motherhood. Yet we value both quite highly. We employ the principle of the unique individual to move ourselves forward; we employ the principle of equity to check what we see as the untoward advance of others. Contradiction is unavoidable for the simple reason that no two people form identical worlds. Equity cannot arise until the principle of individualism has been articulated. Equity confronts that principle, forcing further articulation. The problem for constitutional method is to identify the locus of individual rights formation, individual rights extant in reply to other individual rights.

Historically, equity did articulate rights by Crown fiat. Jury decisions, supplemented by Crown, or rather Crown surrogate judge, defined equity. This echoes today in court reduced jury awards in civil suits. Article III empowers the Court to act in matters of Law and Equity, much as the Crown did. And this caused opposition from the likes of Patrick Henry. So Hamilton points out in the Federalist that Congress can check Court equity by denying appellate jurisdiction. But I do not think he took this check very seriously; after all, he did not like the Constitution as drafted overmuch, and I think it a fare speculation to say he would have approved of the so called “Nationalist” Marshal Court, had he lived to see it. No, Senator, the Article III Congressional check on appellate jurisdiction is not serious. Congress has rather provided card blanch through the writ of certiorari. Crown equity was checked, I believe, through the Bill of Rights.

Allred: <pause> I see my mistake, Judge. I didn’t actually ask you a question.

Allred: Let me do so now. Is there a so-called right of abortion.

Suzuki: As presently articulated–no. Could such a right be articulated in some other way? I cannot say.

Allred: Why not?

Suzuki: I may discuss my past written opinions. And I may discuss where I believe past constitutional jurisprudence has erred. But future process is a matter for the judiciary as a whole, terminating, willy-nilly, with nine minds. I keep such thoughts to myself because I will change when placed with my colleagues–if you so choose.

Allred: That answer is cowardly.

Suzuki: Cowardly or prudent? I assert in this way that I am willing to negotiate–to create–with my colleagues. If I commit to future process here I must either lie to you–and I think myself–or significantly reduce my efficacy on the Court.

Senator Jon Werren of Vermont (Democrat): Will the Chairman yield for a single question.

Allred: Certainly, Senator. But just one. <chuckles>

Werren: Judge Suzuki, how does the Bill of Rights check equity? In light of your revelatory repudiation of Roe v Wade, the question seems essential.

Suzuki: <pause> I spoke badly. The Bill of Rights prevents equity from residing uniquely in the Court. Better to say from residing primarily in the Court. The first eight amendments assert rights beyond the power of Court or Congress. The 9th asserts that the prior list is not closed, and places the residual with the people, not the courts. The 10th places non-reserved powers with the States or people; since the 9th places unarticulated rights with the people rather than the Court, the 10th implies rights creation is non-judicial. This stops equity, save to balance articulated rights.

Werren: If rights cannot be articulated by the Judiciary via equity, how can they be, apart from constitutional amendment?

Allred: That’s a second question, Senator.

Werren: I beg the Chair’s indulgence.

Allred: Granted.

Suzuki: I cannot say, for the reasons I have already given.

Werren: One truly last question, if I may?

Allred: Well, you didn’t get good value on the last one, so go ahead–truly last.

Werren: Are there not other Court decisions which would be swept away by this logic? Protected sexual practice comes to mind. Even the use of contraceptives, if I recall rightly.

Suzuki: Yes. You can have your revolution, if you want.

Werren: Not I, Judge. I find this retrograde and barbaric.

Allred: I would remind my honorable colleague that “barbarism” should not be used flippantly. Many–many–believe a true barbarism pervades this land.

Werren: I thank the Chair for yielding his time.

Allred: You’re most welcome, Senator. Well, Judge, we’ve meandered nicely. I learned something, but it’s time to focus on what made you a star before us. Your “involuntary servitude.”

Suzuki: I stand before you for reasons beyond that vacated opinion.

Allred: You’re sitting, Judge, not standing. Let’s start with the opinion. Now–the people of Oregon approved an initiative to mandate state vouchers transferable to any private school accredited by an acceptable national organization. I believe “acceptable” was defined by a list of organizations within the initiative, and that the legislature could amend the list at will.

Suzuki: Yes, Senator. But one should note the initiative passed narrowly, just over 51% of the electorate.

Allred: Democracy is winner take all, Judge. The People of Oregon spoke. Now, that list was pretty conservative, wasn’t it. It included the National Council of Catholic Schools, for instance. And the legislature was charged with implementing state wide testing. Only private schools doing as well as the average state school would be eligible for vouchers.

Suzuki: That’s correct, Senator. For the first three years, however, only the list defined accreditation, providing time for a test to be developed.

Allred: Yes. Now, the law was immediately challenged in an Oregon county court and declared in violation of the State Constitution’s prohibition on state money for religious purposes.

Suzuki: Yes, Senator. A county court held that Article I, Section 5 of the Oregon Constitution, which prohibits State funds for the benefit of any religious or theological institution, clearly voided the design of the voucher initiative.

Allred: Do you agree with that decision?

Suzuki: On its face it is impossible to disagree. The language is so direct as to force the conclusion. This was a point of contention during the initiative campaign. Even so, the measure squeaked to victory.

Allred: How did the proponents counter this challenge?

Suzuki: Ah–the far reach of the O’Connor Juncture once again.

Allred: Judge, this is your chance to shine. Don’t make your own clouds.

Suzuki: I am sorry. So much happened during that time. Such phrases have become a telegraphic code.

Allred: We can discuss the O’Connor Juncture later. For the moment let’s focus on the voucher case.

Suzuki: Yes, Senator. A similar case arose in Ohio. The Ohio Supreme Court ruled, some say tortuously, that the Ohio Constitution’s prohibition on State funding of religious institutions was not violated when religious schools were the only available option. Ohio vouchers were limited to areas deemed in socio-economic crisis. The Court held, in a split opinion, that the State guarantee of a uniform education allowed limited voucher use in locales in crisis.

The United States Supreme Court reviewed the case on Establishment. That Court, in a 6-3 margin, elected to jettison the economic deprivation logic, holding that vouchers enabled parental choice for a better education. Vouchers enable a quality education; if they also enable religious activities indirectly, say by purchasing computer equipment used to both ends, or liberating private funds for religious focus, these ancillary religious benefits do not detract from their primary focus of a quality education. Ancillary effects need not create religious Establishment.

Proponents of the voucher in Oregon relied on this case, saying the Court had already held that Religious Establishment was not implicated.

Allred: But the Oregon county court disagreed.

Suzuki: Not really, Senator. The Ohio Supreme Court had ruled that its constitution’s prohibition on religious funding had not been violated. Appeal to the US Supreme Court was grounded on the 1st Amendment’s Establishment Clause. That Clause is just about one word long. The Court ruled that vouchers, focusing on parental choice in education rather than on religious institutions uniquely, did not violate Establishment. Actually O’Connor forced that implementation through her concurrence. Four of the Justices would have been, well, more generous to religious education.

In Oregon, a county court ruled that Article I, Section 5’s prohibition of State funds providing “benefit [for] any religious or theological institution” includes benefits uniquely bestowed on such an institution, even if not the reason for funding. So a computer used to teach both math and the Holy Trinity fails Section 5.

Allred: What about a road? A road benefits a religious institution–you have to drive there.

Suzuki: You know the answer to that, Senator. One may use the road without stopping at the institution. Even if the road dead-ends there, that is happenstance, not the only function of the road. To prohibit roads because they serve religion would violate Free Exercise, so long as roads are not uniquely tied to religion. A religious school is, however, uniquely tied to religion.

Allred: You agree with the county court.

Suzuki: To the limited extent of its reasoning, yes. Social distress cannot change the clear content of words. By 1857, when Article I was drafted in a Territorial Convention, public education, as distinct from private, religious, predominately Catholic, instruction, was defined as a State function. Article VIII, Section 3 of the constitution, as then drafted, mandates “a uniform and general system of common schools.” The State was supposed to provide an alternative to religious education; Article I, Section 5 forbids the State from hiring religious schools, so to speak.

Allred: Yet you overturned the county opinion.

Suzuki: Well, no, not really. Judge Foster and I held that an immediate amendment to the ratified constitution of 1859, affirmed with the constitution on the same ballot, restricts implementation of Article 5 under present social conditions.

Allred: Ah, the now renowned Suzuki hocus-pocus.

Suzuki: Perhaps so, Senator. The Oregon Supreme Court did not agree with us.

Allred: You are in greater venue now, Judge Suzuki. Show me your words.

Suzuki: The opinion employs Justice O’Connor’s pivotal parental control logic in Ohio, but in an entirely new setting. O’Connor felt that vouchers, as one choice for a parent in the education of children, need not violate Establishment. Home schooling, vouchers, and public schools are all options in the intimate choices associated with raising children. And, I am certain, she would point out that vouchers might apply to secular private schools, of which there are, or may be, many.

In itself, however, parental choice does not bar broad application of Oregon’s Article I, Section 5. The question is whether such choice is elsewhere implicated or embedded in the Oregon constitution; and whether, if so, broad application of Section 5 illegitimately restricts this choice. I believe a case can be made to answer both points affirmatively, and that this case relies crucially on present social, economic, and technological circumstance.

Allred: Which brings us to Oregon’s 13th Amendment, I mean its prohibition of involuntary servitude.

Suzuki: Almost. First there is the State’s system of common education. Oregon law mandates the education of children until 16 years of age. While children may be home schooled, they must be tested; if they fail the tests, they must be placed in an accredited school, public or private. Realistically, home schooling is not an option for many parents, being too costly in time and, indirectly, money; nor do all parents have the talent or knowledge to home school. In my view Oregon law places a heavy restriction on the rearing of children. This Oregon may do, for the crucial welfare of its citizens, which include children.

But we cannot fail to recognize that Oregon law thereby heavily restricts the intimate choices associated with child rearing, choices no less intimate than the sexual act and prior bonding which creates children. These prior activities enjoy considerable immunity from State intervention, partly because only the consenting parties are involved; but, perhaps just as deeply, because a partnership requires such autonomy to grow securely.

Children, of course, can be abused greatly by their parents, and the State nowhere intervenes more powerfully in the parental relationship than in education. Yet we also know that great damage can be done when interfering in this relationship. Family court is often a no-man’s land of bad gambles. We all know that autonomy and growth in the parental relationship should be encouraged, yet the mass public education system seems too often to achieve the opposite. Oregon, and several other States, have seen an unusual coalition of the wealthy and poor, both seeking escape from State education. The poor want release from under-funded, over-crowed schools, partly a function of low property tax revenue in their school districts; unable to afford private schools, they ask for vouchers to this end. More–and I think equally important–they want access to alternative education cultures, a most intimate pivot for child rearing. They want, baldly, release from their neighbors. Many poor feel they are trapped–by the State–into a system which harms their children.

Those relatively well off can, more or less, opt for private education. But their life choices are thereby significantly curtailed, for they already disproportionately pay for the system of public education. Across the socio-economic spectrum, those most motivated to shape their children’s educations are burdened or precluded from doing so–again, by direct action of the State.

Public agitation led to Oregon Initiative 2, winning by a slim majority, again, just over 51%. The measure draws vouchers from the general fund. Some State support of public schools, based on head counts, will suffer with voucher exodus; local property tax support for schools in unaffected. The law is neutral on sectarian schools; but, as most private schooling is religious, perforce most vouchers will go to religious schools. The law stipulates, however, that acceptance of a single voucher obligates the school to State education testing. Inadequate performance bars a school from vouchers, and testing refusal or tampering incur significant fine as well.

Allred: The appeal that reached you–it claimed the Initiative did not violate separation of church and state, being rather a method for State monitored secular education.

Suzuki: Yes; an argument of no import. Oregon’s constitutional prohibition on State support of religious institutions is absolute; it is not contingent on a prior Supreme Court finding of Establishment.

Allred: Yet you found a way around that ban.

Suzuki: We made a judicial determination that present social-economic conditions made a complete ban incompatible with another constitutional clause. While denying the appeal’s claim that Oregon’s ban is limited by the definition of Establishment in Federal jurisprudence, we found that the appeal’s assertion that Initiative 2 employed sectarian schools to further mandatory secular education could sustain the law by another route.

Allred: Involuntary servitude.

Suzuki: Yes, Senator.

Allred: This clause is identical to the Federal 13th Amendment.

Suzuki: Except for the insertion of “in the State,” yes. But the clause is not derived from the Federal amendment; the Oregon version predates the Federal amendment.

Allred: Your clause reads “There shall be neither slavery nor involuntary servitude in the State, otherwise than as punishment for crime, whereof the party shall have been duly convicted.” I take it that including both “involuntary servitude” and “slavery” suggests they are not identical.

Suzuki: So I would think, Senator. Slavery is, generally, a legal form of involuntary servitude which can be inherited, previously defined by racial presumption in this country. “Involuntary servitude” had a wider meaning, especially during the Independence Era. Submission to Crown tax was a form of involuntary servitude; militia service, when removed from one’s locale during, say, the French and Indian War, was sometimes termed such in protest. Most important, I think, was the issue of debt. During the Colonial era, debtors could be imprisoned, working their debt off during the day, returning to prison at night, sometimes working where imprisoned. Independence Era State constitutions often prohibited debtors’ prisons–the first constitutional prohibition on servitude. Such clauses are retained in later western State constitutions; Oregon has one.

Allred: The phrase “involuntary servitude” occurs in legal documents prior to the Civil War 13th Amendment or Oregon’s constitution. It’s found in the Northwest Ordinance, I believe.

Suzuki: Yes. The Ordinance defined early governance of the Ohio Territory. At the time slavery seemed to be waning in Virginia; many, including Thomas Jefferson, hoped for its natural demise. The Northwest Ohio Territory was seemingly less hospitable to the slave economy; homesteads simply didn’t need much man power, nor, initially, could they produce much more than subsistence. Banning slavery there was not controversial in the then Continental Congress. Jefferson thought it a major achievement at the time; I suspect he saw it as a ratchet which could move southward. Well, cotton nixed that.

Allred: Why include “involuntary servitude”?

Suzuki: Political charge from the Independence War, I suspect.

Allred: You mean the Revolutionary War.

Suzuki: In my thoughts I prefer “Independence War.” We can all agree the war was that. What exactly was revolutionary about it is still contended. Which, I think, in itself tells us something.

Allred: Multiple original intents.

Suzuki: Yes, Senator.

Allred: What then of “involuntary servitude”?

Suzuki: At bottom, I believe involuntary servitude is a charge against State mediated power which destroys the prospect of personal growth. British taxes limiting export/import did this; the Stamp Act, which required that legal documents use expensive and limited stamped paper, did this. Most importantly, State enforcement of personal debt obligation, either through debtor’s prison or sanctioning creditor distraint of assets, was seen as often devolving into involuntary, seemingly perpetual, servitude.

Allred: Without debt there is no modern economy.

Suzuki: Yes, Senator. Involuntary servitude begins when debt precludes personal advance; when it wipes out one’s standing or compounds as to appear perpetual. One’s labor then becomes entirely another’s. This is the American genesis of free labor ideology which later swept the mid-west, helping to elect Lincoln as minority President.

Allred: One voluntarily assumes debt. How can one later escape by crying involuntary servitude?

Suzuki: Such was the controversy over Independence Era State insolvency laws, persisting well into the Federal period, ultimately landing in the Marshal Court. John Marshal strongly felt insolvency laws, which discharged debt by more or less confiscation of debtor assets, violated the Federal Constitution’s prohibition against State impairment of the obligations of contract. He lost the cause by one vote–the only significant constitutional case he lost.

Allred: Sounds like he was right.

Suzuki: United Airlines wouldn’t think so.

Allred: Nor would credit card defaulters. Of course, those who faithfully meet their bills have to endure higher interest rates because of defaulters. What was the reasoning of this beneficent Court majority?

Suzuki: Well, this is from memory.

Allred: You won’t be rejected if you get details wrong.

Suzuki: If that were always true.

Suzuki: I believe Justice Johnson wrote that social policy for the general health and welfare of the State permitted such law. The State creates the conditions of enforceable contract; parties know this when signing, so the prospect of debtor relief through insolvency laws is part of the contract’s implicit law. Johnson would go further. In an earlier case his dissent would have allowed a State legislature to alter the terms of insolvency; again, he said that signatories would know these conditions might be altered, so such prospect becomes an implicit condition of the contract.

Allred: Hocus-pocus.

Suzuki: Yes, Senator, I think so. It would have meant any contract becomes what the legislature says, which voids the Federal Obligation of Contract Clause. Such State fiat motivated the Clause’s placement in the Constitution.

Allred: We’re getting lost, Judge. I want to return to involuntary servitude and sectarian education. But what do you think of this Justice’s later, prevailing view?

Suzuki: Ogden. The case is Ogden, I believe. This is settled law now, Senator.

Allred: Even so, Judge, even so.

Suzuki: The majority view was a political compromise. A volatile monetary economy, where bank failures and severe note discounting could effectively wipe out liquid assets, created strong pressure across economic classes for State debt relief; Congress, while empowered to create uniform bankruptcy law, had done nothing. State courts had sustained their insolvency laws in alternative. Redress was needed; involuntary servitude and the sanctity of free labor where often charged against banks. I believe, just about a year after Ogden, Andrew Jackson won the White House on an anti-bank platform.

In the jurisprudence of the day, I think the majority holding wrong. “Obligation of contract” is rather clear and blunt; it was widely known that State monetary and contractual policies motivated the Constitutional Convention. John Marshal was right. There can be no obligation without enforcement, and insolvency, removing enforcement, removes obligation.

Allred: <pause> Trickster Suzuki.

Suzuki: <pause> Ah, yes Senator?

Allred: “In the jurisprudence of the day”–what about now?

Suzuki: This is settled law. There are undoubtedly many decisions of the past I would disagree with today. Some may be overturned. But on what grounds, and to what effect, I cannot say. That is a collective matter of nine minds; to pronounce on such matters here would handicap my participation in that collective. Perhaps, arrogantly, I may add it would harm the collective itself. To bind myself to future cases unheard would devalue the confirmation power of the Senate.

Allred: That is bizarre. Nice trap, Judge. If I demand the information I need to confirm I devalue the confirmatory power. Yet you would overturn Roe v Wade.

Suzuki: One overturns a decision only by replacing it. I can say what I would overturn, but not what would replace it. So I only announce a predisposition which may or may not be activated.

Allred: Ok. Let’s find a way out of this maze. Involuntary servitude and vouchers.

Suzuki: Then a final comment on Ogden and its era.

Allred: If you must.

Suzuki: I think it relevant. Involuntary servitude was charged when debt, measured in US gold dollars, was serviced with depreciating bank notes. Bank runs and default were common; so too internal discounting of bank notes by the issuer. Information by distance was haphazard; discounting tended to increase with distance from the issuing bank. A debtor, paid in notes, found his creditor discounting these notes in debt service, in effect expanding the actual debt. Economic shocks accelerated discounting which could induce new shocks; a creditor, unable to call in his real dollar debt, might find himself effectively assetless in turn. This perception of debt without horizon’s end was charged with involuntary servitude.

Banks were seen as central controlling entities, supported by the even more distant, centralized apparatus of government, which provided the means of debt enforcement. Insolvency law was an attack on State power as much as on private debt. Private debt, enforced by State power, was involuntary servitude. Debt was no longer a means of personal improvement but bondage preventing growth. As in the Independence Era, State action hobbled free labor, termed “the pursuit of safety and happiness” in the Virginia Constitution of 1776. Debt became a form of slavery. The same coloring exists during the late Colonial era up to the war; there perpetual debt was more a function of inadequate harvests or other return on labor, augmenting the length of indebtedness. Debt was mostly personal rather than corporate; the restricted availability of specie and notes bound debtors to those with such access. The later proliferation of banks held egalitarian promise, lost in bank runs, defaults, and the general volatile economy. In any case, State enforcement of debt was charged as involuntary servitude from the late Colonial era onwards. In Ogden, free labor trumped obligation of contract. Property was subordinated to individual autonomy. In this sense, Ogden is an intellectual ancestor of abolition. This is the content placed into the Northwest Ordinance, transferred later to the 13th Amendment.

Allred: And, finally the Oregon Constitution.

Suzuki: Well, the Oregon version predates the 13th Amendment. But, in any case, there is late antebellum politics to consider as well.

Allred: I’m beginning to see why the Oregon Supreme Court nixed your opinion.

Suzuki: I’ve wondered about that myself.

Allred: Let’s get it over with. Keep in mind it would be best if we weren’t sleep deprived during your vote.

Suzuki: Yes, Senator. Involuntary servitude was charged when centralized entities removed personal choice, forcing individuals to work solely for the benefit of others; that was the denial of free labor. Political free labor focused primarily on banking through the Jacksonian administrations. Focus shifted to the Slave Power once the 2nd Bank of the United States was clearly dead.

Allred: Slavery and debt, even perpetual debt, are distinct. One’s children are not taken away when in debt.

Suzuki: Well, not directly. One can lose control of them, though. But there was no fear of white slavery. The ready legal presumption of race and slavery coupled with the tense truce between slave holders and Southern, slaveless, agrarians saw to that. Slavery was feared and hated because it centralized control of local economy. Conflict at the western confluence of slavery and the North was not over a plantation economy. Kansas could not support such. So owners brought fewer slaves, these being placed in the local artisan economy as well as laboring the homestead. These small forays into the local economy amplified in the perception of propertyless homesteaders. When present, informal debt would more likely be held by slaveowners; and slaveowners, again when around, would more likely be involved in territorial politics and the creation of banks and other corporations. Couple this to the 3/5 Clause in the Constitution, counting a slave as 3/5 of a free man in the census. The clause could not but ratchet the power of local territorial slaveholders over time–or so it seemed. Kansas was bloody because, in the marginal life of slaveless homesteaders, the importation of slavery threatened servitude as perpetual debt.

The 3/5 Clause propelled the importations of resources into Kansas by both the Slave Power and its Northern opponents; as a slave state, Kansas would shift the outcome of greater territorial questions toward Southern views; similarly tariff policy and the role of the Federal government in constructing internal improvements. Conversely if Kansas banned slavery. This importation of resources motivated by national, Congressional conflict amplified the marginal fears of Kansas settlers. Both pro-slave and free soil felt opposed by forces far removed from their homesteading locale. These forces threatened in perception the autonomy of both parties, portending the loss of prosperity, growth, perhaps even land itself. So conflict, unnecessary at the moment, flared. Bloody Kansas.

Allred: Good Lord, get us to school vouchers. I like school vouchers. <pause> Ok. Involuntary servitude can arise through prolonged, perpetual debt. The Slave power could create conditions where such debt, among those free-born, could arise. What in the hell does this have to do with school vouchers?

Suzuki: Senator, historical construction is not a facile enterprise. But the link will come shortly. The North did not mobilize, however fitfully at first, to eradicate slavery. It mobilized in opposition to a growing involuntary servitude which happened to be propelled by the engine of slavery. In the 13th Amendment, involuntary servitude and slavery are distinct. Involuntary servitude can be charged without associated racial content or the accepted form of legal slavery. Core to this charge is a government which stifles choice by burdening the individual to such extent that life progress is significantly curtailed. State sanction of the private recovery of debt could do that. But the charge of involuntary servitude is independent of that means. I believe that charge can be made today in other areas of life endeavor. The content of involuntary servitude, derived from a specific historical context, can be applied beyond that birth.

Allred: School is involuntary servitude?

Suzuki: Involuntary servitude is a color on government action. As an abstraction, one should not expect the same kind of burden associated with, say, the servitude of slavery. Certainly the pain of flogging should not be assumed identical to imprisonment for debt. As the quality of life advances, what can constitute involuntary servitude will change. If no choice is possible, involuntary servitude cannot exist. For example, vouchers may release one from reliance on an inferior public school in a modern city, but in rural 19th century America school choice is vacuous. There might still be kinds of servitude in such schools, but relief through vouchers is meaningless. A previously benign institution can evolve into servitude through socio-economic change. The key is effective, possible choice and relative benefit across the spectrum of choice. The evaluation of law is not static in this dimension; or, rather, may not be static.

Allred: The mind whirls, Judge, the mind whirls.

Suzuki: Senator, a charge of servitude is not facile. True distress must be articulated, with pathways of relief.

Senator Werren of Vermont: Mr. Chairman?

Allred: The Senator from Vermont.

Werren: Will you indulge me again?

Allred: You are indulged. I need a break.

Werren: Judge, before juggernauting to the destruction of public education, let’s go back to the actual drafting of the 13th Amendment. Is it not possible that the sole goal was the eradication of slavery; that, for–patriotic–reasons, the Northwest Ordinance wording was employed as ready made? You are placing enormous value on two words.

Suzuki: “Free exercise” is two; “Establishment,” in essence one, I guess. But–yes, Senator, yes. An enormous value rests in those words. The price of communication is bondage to words. Even if, as you suggest, the words were imported solely for historical priority, their contextual charge remains. Nothing in the import removes that charge. Importing for political expedience can trap you, for no one owns words.

Werren: So too for the State constitution clauses importing the Federal 13th Amendment, I suppose.

Suzuki: Yes, Senator; else such imports cannot be grounded even in history. The case is different for Oregon, however. Oregon adopted the involuntary servitude language of the Northwest Ordinance upon State foundation in 1859, before Southern Succession. The manor of adoption is somewhat important for the constitutional stance the appellate opinion took.

Werren: Oh Lord. I thank the Chair’s indulgence.

Allred: Wear them down with talk, hey Judge?

Suzuki: The true secret of jurisprudence, Senator.

Allred: Are we almost home, Judge? Remember your appellate opinion? About vouchers.

Suzuki: We are, Senator. As already noted, education is mandated by the State. The quality of education, including its social environment, can either enhance or harm the life of pupils and parents. Livelihood is not just career or employment, but also partnership, community, and child rearing. Very often one’s personal success is significantly determined by the progress and well-being of children. When the progress of children is stifled or blunted by their education, I hold a charge of involuntary servitude may be made–if significant viable alternatives exist. In this case they do–private institutions willing to accept State vouchers as payment. In the case of Oregon, a measure of burden is provided by Initiative 2, where a slim majority of the electorate acknowledged the burden and accepted the alternative choice mechanism of vouchers. This was not a judicial determination of burden in the first instance, but rather a recognition of the burden articulated in the vote.

Allred: You have yet to nix that county court opinion.

Suzuki: Yes. One can do so quickly now. Section 5 of Article I of the Oregon constitution states clearly that no money is to be appropriated for the benefit of any religious institution; vouchers for sectarian schools would seem impossible. Section 34 of the same article is the involuntary servitude prohibition. When drafted and ratified, the judicial interpretation I have sketched was socio-economically impossible: true choice via vouchers could not exist; nor could mandatory education be said to be limiting rather than improving. Today, given the Oregon electoral plea via Initiative 2, I hold the two sections of the constitution are in conflict. Resolution, in this case, comes immediately through the history of constitutional ratification. The religion prohibition was part of the constitution presented to the electorate for ratification. Crucially, involuntary servitude was presented as a separate question on the same ballot. In November of 1857 voters were asked first whether they approved the constitution; next if slavery should exist in Oregon. A majority vote against slavery placed the involuntary servitude prohibition in the constitution. It is, then, a free standing amendment coloring the prior constitution in its entirety. The prohibition on religious funding becomes contingent on the involuntary servitude clause, void where it violates that clause. Initiative 2 permits a judicial finding of servitude with voucher choice as a release. Since choice is significantly enhanced through inclusion of sectarian alternatives–indeed, at present likely requires them–the Section 5, Article I religious funding ban is enjoined solely on this issue. Initiative 2 may proceed as enacted by the electorate.

Allred: That’s it? We’re done?

Suzuki: Well, I and my associate, Judge Foster, were done. The Oregon Supreme Court was not.

Allred: I obviously like the conclusion, Judge. And I like the import that the present educational system is oppressive. But you qualify your conclusion almost as if part of it is reversible.

Suzuki: Jurisprudence which yields only conclusions you like will be a tyranny to others. I believe that Section 34 of Article I provides a valid path to the conclusion you desire–but not statically. You are right in thinking that the enjoining of Article I Section 5 could be reversed. It’s an empirical question. Adequate non-religious private schools might emerge over time, their number sufficient to insure parental choice and so forestall charge of servitude. In such case extending vouchers to sectarian schools would become unconstitutional, as Sections 5 and 34 would no longer conflict. I believe Initiative 2 is constitutional through a current confluence of poor public education environments and predominately sectarian private alternatives. But the very application of Initiative 2 might over time restrict the applicability of vouchers. Here socio-economic change–marketplace change–shifts constitutional conclusion through the same original intent logic. Original intent need not be static in outcome.

Allred: Bondage to words–hey, Judge Suzuki?

Suzuki: Yes, Senator. A constitution is a terrible thing.

Allred: You know, Judge, I live in a world where words are cheap and fast.

Suzuki: No, not always, Senator. Your chairmanship of this committee speaks to that, I think.

Allred: No, not always. You just called the Constitution a “terrible thing.”

Suzuki: Not “the Constitution”–“a constitution.” In the sense of awesome, disturbing, formidable. Something beyond the control of a single individual. Thank you for the opportunity to clarify.

Allred: Glad to do it. We have, thankfully, about exhausted this topic. But there remains the troublesome Oregon Supreme Court.

Suzuki: Higher courts are often troubling. Being a judge often means forgetting what you believe.

Allred: There is nothing higher than your nomination. What about that Court?

Suzuki: There are two bindings. One is precedent which, I confess, does not compel me. Static law for the sake of stability preserves malformed thought and encourages convoluted reasoning eroding faith in justice. When I hear something has been “well settled” I worry a dodge afoot. Those on the High Bench thereby come to distrust one another. I see a principled attack on my views as healthier than consensus through precedent.

The second binding I believe to be the essence of integrity: to affirm a view because one feels constitutional principle requires it, even if the outcome is abhorrent to personal belief; my only alternative should be to resign from the Court. <pause> Justice Curtis did exactly that after Dred Scott declared African Americans incapable of full citizenship on supposedly “historical” grounds.

Allred: <pause> You’ve never run for political office, have you?

Suzuki: No, Senator. But “everyone does it” does not strike me as an adequate defense in life.

Allred: Let’s turn to the Oregon Supreme Court. They nixed you.

Suzuki: Yes.

Allred: On what grounds?

Suzuki: Precedent. You see my problem.

Allred: Please elaborate–but not like before.

Suzuki: Article I, Section 34 had never been adjudicated in the state. The Oregon Supreme Court held that a State court has no business interpreting national history. A State court can interpret State history, but for national history it must rely on Federal court interpretations. The US Supreme Court has addressed the 13th Amendment a handful of times, each time holding that it covers only the great matter of abolition. Which was indeed a great matter.

Allred: You find this interpretative rule wanting?

Suzuki: Well, I guess I must. <pause> It is strange how I may hold a view, then, confronted by argument, discover my view has paths not my own. Perhaps not my view anymore, although the thrill of triumphant reason declares otherwise.

Allred: Judge?

Suzuki: Oh, sorry, Senator. I think the rule wanting on several grounds. First, Section 34 was affirmed by territorial voters in 1857, well before the dislocation of the Civil War was imagined. No one expected the end of national slavery. To say the content of “involuntary servitude” is suppressed by the immediate eradication of slavery in 1865 has no relevance to Oregon in 1857–and that, in any case, is a State history question. So the content of Article I, Section 34 remains a State history question without Federal interpretative precedence.

More, even if we employ the Oregon Court’s rule, it vanquishes involuntary servitude only if one ignores powerful dissents of the day. In Slaughterhouse…

Allred: No, Judge. It’s late and I am quite tired. Don’t delve into those cases now.

Suzuki: I understand, Senator. I was only going to say that Justices Bradley and Field, in dissent, identified both the 13th and 14th Amendments with free labor. Field, I believe, said they enabled the “sacred right of free labor.” Slaughterhouse was decided 5-4. The four dissenters argued that the majority had expunged much of the motivation for the Civil War. Reading that case with its dissents, I am amazed that Slaughterhouse has never been reconsidered as principle throughout the voluminous 14th Amendment jurisprudence.

Allred: Another time, Judge.

Suzuki: Yes. But I would call this a good example–perhaps the premier example–of the debilitating effect of precedent. There is a final objection to Oregon’s interpretive rule. Federalism is grounded on the autonomy of State and Federal jurisprudence, save for application of the 14th Amendment. Involuntary servitude has nothing to do with application of that amendment as presently understood, except in the area of voting rights. I see no reason why a State should hobble itself to Federal jurisprudence when it is not constitutionally obligated to do so. It may, case by case, end up at the same place, but that is different than Oregon’s interpretive rule.

Allred: It sounds like your objections to the Oregon Court’s rule parallel your view of what a Justice should be.

Suzuki: Yes, Senator. I would say so.

Allred: In speaking about that, you said precedent erodes faith in Justice. Without becoming Plato–I want to go home–Benjamin Suzuki, what is justice?

Suzuki: <pause> The bane of a life. Of life. <laughs> Words! Most wonderful! There are so many of them.

Allred: <pause> It’s been a long–and instructive–session. Without objection, let’s adjourn for the day.

On the Suzuki Court