Henry Mitland: journal-I

From the journal of Henry Mitland


1. On the Court

At home, late evening, undated


           Ben [Suzuki] and Elizabeth were over for barbeque this evening. Ben does not like to meet the Court, entire or partial, in such venue.

           “Each meeting,” he says, “creates a nexus, an alignment. We become trapped. I say such and such because so and so is here. Thought travels in deep canyons absent seconds before. We leave the grouping finding we cannot think as freely as before. Ideas have people’s names attached, their wants, needs, fears. Justice is the absence of all this. Hard work.”

           “Impossible work, Ben.”

           “Yes, we travel by sighting a mirage.”

           “Is there not a–nexus–with only two?”

           “Yes. But the nexus which traps does so through third parties. It is the bystanding audience which traps, not the primary recipient. This is why writing can work so well. There can be writer and reader, nothing else. Even better, a writer not knowing if there will be a reader. Crazy release from social constraint.”

           “Not so for Court opinions.”

           “Not so. Which is why we are trapped. But I hazzard way out.”

           “Yes, you do.”

           “Oh. I mean I hazzard a way out.”


           “Write opinions for the future. Write incomplete. For those not yet here. Ha! Not so far in the future at that.”

           “Have you heard of impeachment, Ben?”

           “I am too vague to be impeached! So far.”

           Now we sit on the lawn, waiting for the barbecue. He has been preoccupied with metaphors of war lately. As if the Court unendingly steps into them, perpetually shaking its collective feet to get the grime off. What seems a single question of greater right becomes, for him, intervention in an ancient battle. We intervene with words. New armor for some, nakedness for others. He seems to think neither side should–perhaps, better, can–win. Somehow, winning produces the battle anew. I decide to continue this thread before dinner arrives, not realizing he will thereby reveal his unsettling vision of peace. Peace for a global–false–community.

           My gambit, tossed as I sip my tea:

           “How can words impact wars of centuries, Ben?”

           I sip.


           Something unheard. Silence, stretching silence. He hasn’t answered. I glance toward him to see a face in despair. Gone the Japanese-American imp, ready to profound anything into nothing. Here rather the American draped in a world he does not want, a world unowned yet supplicant, fearful, hostile–emotions perhaps not far from one another. Single American inheritor to a nation, to an ideal.

           “We are,” he once said, “custodians of regret. But regret unowned, unclaimed. We must decide what to do with it. Else blame will accumulate, weighing us all down. Worse, blame can explode.”

           Now he says, “We can make new wars, drain the old ones.”

           “As you’ve said before, Ben. Small engagements, less destruction. A Madisonian checking of interests.”

           “No. Checking suggests all persist, but limited. In multiple wars elimination still occurs.”

           “Then why new over old?”

           “Many. Many wars. And the opportunity for new war. To escape destruction that way. It is the opportunity for escape we must offer.”

           “This is how we operationalize regret? By offering escape?”

           “Not by offering. This is to enter the wars. By enabling the potential of escape.”

           “At lot of ‘creates’ there.”

           “The only way to avoid war.”

           “We avoid war by letting others go to war?”

           “Yes. That is the way of peace.”

           Yet again I see our Chief Justice shimmer in my vision, shimmer in some unknown space bordering violence and non-violence. A general in a war, without troops who serve.

           “Peace is the art of getting others to fight?”

           “They will fight in any case. The art of peace is understanding that the opportunity for war is not realized war.”

           Our barbecue arrives. He picks a leg and crunches–devouring an animal slaughtered by another, beyond sight. If I asked him if his crunching was peace or war–what would he say? Ah, I can hear his reply: “You understand me exactly!”

           I will not ask, but eat chicken instead.


           “Wars can be bloodless, you know.”

           I glance at Ben. With proper zen focus he is eating his third chicken leg. No one spoke. Then who shall answer this: Do people die in bloodless wars?

           No matter. I shall enjoy the distant alchemy of my cook, where blood becomes juice.


From the journal of Henry Mitland


2. On the Court



A legal mind. Spelunker with headlight beam, crawling on four limbs, wishing for more light penetrating darkness, revealing more darkness, the only hope for advance. On all sides the certitude of the past, ancient beyond counted days, so thick, barely able to hold our living breath. Crawl, clawing sky. Crawl, breathing dust of decaying obstruction, social forms fossilized by the passage they leave.


To the right obstruction vanishes. Turn, hoping for relief of the crouch. A few squirms forward reveals an ancient rock slide, frozen time. What social structure collapsed to bar the way? What self-filled need stands before you, frozen beyond purpose to keep you out, to banish exploration and a way?


Move forward, the sky comes to crush the world. Burrow as a worm, no more space between you and past, only past to breathe, no distinction left to mark you from it.


Incalculable release. Ceiling gone, sides gone, only floor for strength. Cavern. Void in which to stand full height, headlight moving with sight showing no wall distant. To stand and move at will, space of past rebellion heretofore unlived. Freedom surrounded by the ancients, to choreograph moves beyond the crawl.


A legal mind.


From the journal of Henry Mitland


3. On the Court

Before appointment of Suzuki


[From Kendal Q. Binmore, Cacophony in silence: the private journals of the Suzuki Court:


Henry Mitland seemed a dull, benign, stable choice for the Court, surprising mostly for his lack of station in the Judiciary. When nominated he had served 8 years on the Federal Circuit, the only Appellate Circuit without territory, devoted mainly to patent issues. Such a station produces only a record of the incomprehensibly dull. He was an unknown, yet safe, having been tethered to dullness a good long time. And he knew patent challenges, an area which threatened to escape the confines of the Federal Circuit through the rapacious march of science. When this man said he hadn’t thought about an issue you could believe him. Turns out he was lying, but you could believe him, on his record. He had lived a life where thought was all of life, and he wasn’t about to give that away to Senators wished Roman. What the monied pundits didn’t know, couldn’t guess, is that this dull life shrouded an iron will to understand. He wrote journals, entries on history, religion, archeology. Dullness liberated him from the need to impress, and he came to the Court no disciple of law. All he needed was a catalyst; one came.


Mitland puts in a few sentences what others publish papers on, precisely because such publication was essentially forbidden him. But he was thereby liberated. He took everything seriously. Derisive laughter a warning that some fear wanted us to turn back–and he would not. Endurance demanded respect; he would deride no faith. He saw our lives a point in a vast record, finding harmony beyond the joys of birth and death. This reverence for process created a curious, unexpected reverence for the petitioning individual, for these were processes in conflict manifest in small voice, atoms raised in height by centuries. He heard centuries in petitioner and respondent, the Court to him a diverter of streams. His humanity came from the unpleasant truth that the human being is nothing in itself, but a nothing on which history rides.]



Talk of God: words entwined in omnipotence to tame the irresistible. Incantations to contour the unbounded, to bleed infinity until it fits into a box. Are we to count God as an infinite number? As the principle of continuity manifest? No. Theology is a social physics of the unbounded, for the all too contained.


Islam has it right: just name God, all appellations, never stop naming, this the only talk which does not confine and so confront God: the bountiful, the merciful, the light, the dark, the ineffable, the vengeful, the jealous, the wrathful, the generous… never stop naming–the closest we get to God.


As God listens, waiting for the stream to end, knowing it must not, what effect have these words? What effect can words which never end claim? To stop the social physics of others. God listens, knowing he is subterfuge: the endless naming of God stops all theology, a social physics to contour not God but ourselves. Naming, I am servile to God; do not bind me to your halting finite efforts, blasphemy as soon as outward breath ceases. Islam found a way to stop itself–for a moment.


God listens to it all, and is not. Without contours, nothing is. God is not; but by this we become and are. Life is limitation against limitation; God the branching of the stream, a reverse flow from massive river to trickling creek, each departure from the greater flow a denial which remakes the limited in new design. God is never present at these branching creations, yet is hopelessly responsible for them. For it is our talk of God which is the branching.


Theology is the perpetual absence of God; through this we create–and constrain. Theology is prison yet, in extreme, the physics of social creation. To chase the bounding ever absent, we create.


God has nothing to do with our world save through its absence–a verbal impossibility which propels us toward what we are not. Give thanks as you rebel against the faith of others, for this is the only encounter with God. Bless the names which confront you; they are the portal to God, instantaneously infinite and gone. Fear only those who ceaselessly name, who go to their deaths with more names on their breath–these, present in the unbounded you would use for a fictional moment, these you cannot touch.


From the journal of Henry Mitland


4. On the Court

In Cambers, last day of Suzuki nomination hearings


Our presumptive Chief Justice has retired his theater. Why did he do it? Why answer the committee’s questions so directly? Why come prepared to give lessons? He stupefied them. They resented him, reduced mostly to the sycophantic clarifying question. Was he talking to us of this Court? No. Nothing he says there makes a difference here. He will start anew and become like us. I think he was talking to an idealized Senate, one that has never been nor wants to be. Will he talk to an idealized Court? Then he talks to none.


Perhaps that was his intent. To talk to no one. That’s what books do, sometimes. They sit in their shelves, lie on their tables, talking, talking, not only not needing reply, not knowing what a reply could be. They talk and talk, sometimes producing a precipitate– us, in some grand flash of wordage. Our decisions. So many books, read or not read by different minds, all to produce these things on stilts we call opinion.


Like Suzuki’s stories? Those things which push potential ever forward to delay the imperfect realizations which form our only world. I think you wrong on that, Benjamin Suzuki. Stories keep forming because each must distance itself from something to be born. To be born is to ignore. I have read (in one of those ceaselessly speaking books) of an African conception of God as insane; insane because cognizant of all perspectives simultaneously. The ones that must destroy each other to be; the ones that must ignore each other to be.


Ah, Suzuki I have never met, a reconciliation: God is your ever receding potential, running from us so we may live. So realizations of failed potential may be; so we may be. Each story made success against God, who claps and wails as he must. We are God’s happy failures, Benjamin Suzuki. Will you come to push us toward the abyss of unrealized perfection?


I await you, Chief Justice. There is much to do.


Postscript added several hours later:


Is this why you spoke of stories as unending failure, Benjamin Suzuki: that we may press beyond our present failures to new, ceasing to think of the present as brilliant insight into law? Then let’s make certain the story never ends, cheating both insane God of perfection and failure in realization. Let the human spirit be that which, never completed, cannot be evaluated.


From the journal of Henry Mitland


5. On the Court

In Chambers, first private meeting with Chief Justice Suzuki 


“Justice Mitland, the Chief Justice.”


My clerk stands aside the door, bowing his head slightly, one arm half raised, ushering Suzuki into my chambers. The clerk portrays a solemn moment–for him if no other. My first private meeting with our instant celebrity Chief Justice. Our clerks revere the process of nomination and confirmation, abstract god of fear and hope. Ah, this clerk’s obeisance will be tempered when his hard-drafted opinion is blotted by a marginal note of our grand Chief. Still, piety will be paid in anticipation of the comforting, challenging career.


Suzuki bounces into the room.


“Benjamin Suzuki,” he says, beaming.


“I know. We met at the incoming reception, yesterday.”


“Oh. Yes.”


Will he introduce himself at every future Court Christmas party? I think it possible.


He sits. “These young people. They are everywhere in the building. I have, let’s see, five in my outer-office.”


“Yes, your clerks.”


“Why so many?”


“Why do you do this?”


“Do what?”


“Act like an imbecile, an immigrant dumbfounded by the ways of a new land.”


“Ah, you understand me. I bow in gratitude.”


Good Lord. Ok, play along–and wonder what he will do with Rachel [Colleen Whitehead, Associate Justice].


“They draft our opinions for us, according to our direction, of course. Certainly you had them on your appellate court.”


“Ah. The ones who insisted on writing dull opinions. But most cases were dull, so that seemed appropriate. They were quality control. A wise invention.”


I look at him, this furious man of the truncated sentence. Furious not in anger, but concentrated purpose. My world shifts: where is the grandeur of the court? The massive process called law seems to shrink into a single world–dull.


His right hand bangs the armrest. “We, here, should not be dull!”




“I know problem. In appellate court, we had to take cases. Many cases, much dullness. Dull demands, dull answers, numb minds. But here, we choose cases. We should choose fewer cases.”


“Ah. You have a point. Which is why we have five clerks each.”


“No, no. Clerks are creatures of dullness, the art of success. They produce straight-jacket opinions of citation. You pass them around, add citations, a sentence here, there. Hard to know why half of the opinion is there. Where are the dicta which bridge the world?”


Dicta which bridge the world? Certainly consensus jurisprudence produces a myopia of the case. Often we say less than we would unfettered of our fellow Justices; so dissents, charted by a single mind, can seem more cogent than the majority opinion of the Court. But to praise dicta? One virtue of consensus jurisprudence is the elimination of dicta, one Justice’s radiant observation being superfluous indulgence to another mind.


“Wait! How can a single thing need bridge? Must be ‘Dicta which bridge worlds.’”


A mistake. My reverie has given him time to say something else.


“Dicta control nothing.”


“Dicta frame everything! That is the leap beyond the moment of the case.”


He has a point. We pick a case to generalize away from it. Legal reasoning is the art of avoiding later charge of dictum. Perhaps we should consider that sustaining charge of dictum can decapitate the case, leaving us with outcome devoid of compelling principle. Flopping on the ground, we take usury pity, resuscitating the uncomprehending thing for our own, later, ends.


“Let’s see. You say the Court’s case load cannot be offset by clerks, as the latter filter out life-giving dicta.”


“I would say only he who molds the decision can provide true dicta.”


True dicta? Seeing my cross-eyed look, he adds:


“The case is not the clerk’s. He is told what to do. His words live through another. That is not living thought.”


“So we must reduce the case load.”




“Cases are coalitions. You agree to hear my interest and I agree to hear yours. Naturally inflates the docket.”


“Yes. Myopic cases produce more myopic cases in reciprocity. Boring the other Justices gives me more control over a particular case. If I am in the majority.”


“What a despairing view of what we do. And unfair.”


“Contention over value is always unfair. We become petty because pettiness is all there is.”


“You would avoid pettiness by…?”


“Decisions should be vast. There must be room in them, for many future outcomes. In my house there are many mansions. Good idea. But that book is quoted too much. Pushes out other books with other quotes. Not so many mansions.”


I bark laugh. “Don’t say that to Rachel.” [Associate Justice Rachel Collen Whitehead]


“Why not? She have a key to the house?”


I tilt my head down, looking at my knees. This man is innocent. He has been placed on the most potent court in the world yet he is innocent. How did he do that? Can he know and still be innocent?


“We make the stories our legal nation lives by, Chief Justice.”


“Ah. Insightful. If our decisions make many mansions, how can we direct the law? Answer: badly. As it should be. If we monopolize story we make law a prison. The power to tell must be greater than any practitioner.”


I stare. Seems as good a response as any. After a moment he waves his hands:


“Ok, Ok! I compromise with reality. Not all decisions should be vast. Only some.”


I remain silent. 


He looks down. For a moment I think a pain in his eyes. He needs me. This innocent man needs me.


“I should go.”


“Yes, I have something to write.”


As he leaves, I call:




Half-turning, “Yes?”


“The vast cases. Look for them. Carefully.”


He nods, departs.


This man is a weapon of presence. He knows that to be here is to acknowledge uncounted being elsewhere. He will not have the short duration of control we call power.


I take out this journal, lifting pen to blank page.


From the journal of Henry Mitland


6. On the Court

Before appointment of Suzuki 

Talk of God to shape us into our wants. Talk of God, stretching the fabric beyond recognition with disparate needing love. Talk of God, omnipresent howl in the thinning fabric, frayed until disjoint. Love grabbing the newly created corners, pieces of what was, pulling anew in joyful need, cycle of creative destruction until cloth dissolves into void, void cupped in the silence of the gone.


Needs scurry, scratching the emptiness, falling with no ground to land. Needs encountering needs, stretching each other, entwining in contest for supremacy, soon made threads flopping beyond control of all, threads meeting at hope’s end, yarn to make fabric anew.


Needs flooding, ever replenished, thread made yarn made fabric to be tailored to be sundered again. And in the tailoring talk of God returns. Mumbles to murmur to rising voices hopeful of harmony, sonorous dominance of a few, and God comes among them, the many grateful for obscurity to have a whole.


Needs flood, scurry on God, burrow into God, needs come en mass until the fabric of God is inundated, voice of God muffled into silence. Talk of God rises, digging into the covering silence to replenish memory, cutting to reveal fabric to have a piece–to have the composite of dead need, need long since sacrificed to the unending supply which ever recurs. Talk of God. Dead need unraveling to reveal emptiness once more.


Talk of God, the voice of God, the loss of God.


From the journal of Henry Mitland


7. On the Fifth Circuit

Notes after an Archeological Society meeting, undated 


[Archival note: Mitland attended meetings of amateur archeologists throughout his judicial career– while on the Federal Circuit and, later, the Supreme Court. Such meetings hosted talks by academics, curators, or those associated with the small industry of archeologists engendered by Municipal, State, and Federal preservation laws–archeologists in city posts or private contractors hired by the government to canvass areas before construction. He seems to have had considerable input in directing talks towards American Southwestern and Mesoamerican topics, probably more so once appointed to the Supreme Court. There are no references to his notebook speculations on archeology within the Suzuki Court corpus save for the Mitland/Suzuki haiku (see Disappointed hummingbird: quasi-haiku and other short form poems of Benjamin Suzuki, compiled by Kendal Q. Binmore); nor is there evidence that Mitland was credited in any governmental or professional archeology publication as source or facilitator. Yet these notes, coupled with those he wrote on ancient history (below), seem to have influenced the Triumvirate (see K. Q. Binmore, A cacophony of silence: the personal journals of the Suzuki Court) and the more independent minded jury jurisprudence of Associate Justice Anne Clare Young. As Binmore has suggested, Mitland may have been the link between Young and the Triumvirate, just as Suzuki was the link between the Christianity of Associate Justice Whitehead and the Triumvirate. These links formed the landscape upon which Court majorities were formed, history the prior ground for apparently divergent belief.]



Archaic period (2000 bce and earlier), excavations in low desert valley and low rise mountains surround, southern Utah. Mountains exhibit semi-permanent base camps near probable water sources, camps perhaps a day or more in walking from each other. Valley surveys reveal a single area with several hearths, surround valley apparently unoccupied. These hearths date over several centuries, some possibly overlapping in use, seem occupied for only a few days at a time–water seems scarce, and there is no evidence of aggregated food gathering (these people being pre-agricultural), unlike mountain camps.


Valley hearths almost always exhibit large burnt rocks, 50 to over 150 pounds each. Mineral analyses indicate these rocks are not local but derived from various mountain locations, usually several such locations per valley hearth. These rocks could provide no practical function beyond local valley material, yet were trekked in at considerable personal effort.


Such personal burden is a commitment cost. Valley hearths, perhaps very few per generation, are rendezvous to a neutral location where independent mountain camps can signify alliance, perhaps for marriage and food exchange, exchange later directly between camps. Trekking heavy material to the neutral, naturally unoccupied, site signifies identical commitment across camps; meeting in the mountains could privilege the position of one (somewhat wandering–these are hunter gathers) over others. Common distance to rendezvous precludes supremacy.


Transported rocks are heavy in symbolic commitment to future support. What is difficult is not readily replicated; the formed alliance is unique, enhancing its value for all parties. These rocks transported to rendezvous are burnt in common hearth; blackened, they become commonality, heat transferred one to another until all are identical, home origin gone.


Participants return to their various mountain homes, still of their home, but badged now by a process they themselves made. A return to stories of rocks past, stories of lava red and formless, common origin cooling into diversity of place. Hearth rocks burnt remove their home, returning to a common creation before there were homes. These men returning home without burden have made of themselves two places, one of daily life, the other in mind, evoked at any place until visited again in burden.

From the journal of Henry Mitland


8. On the Fifth Circuit

Notes on ancient history and archeology


The breaking of vessels 

Life is a vessel containing power, power mostly known in vessel’s breaking, subjugating those entranced, looking on. That awe is the power which is the breaking.


People are broken, but whatever it was they contained is not allowed to escape; it is placed in a greater vessel, one able to hold several of what once were separate lives. This we find repeatedly as a pedestal of ancient civilization. A pedestal upon which sophistication is built, sometimes desperate to hide its base. So the seat of Justice blind is sometimes depicted with skulls underneath. What was broken, to let her sit innocent, hearing all tale of what is but seeing no man?


Livy of Rome knew that base, knew grandeur not as distanced from it as he would wish. In 216 bce the war with Carthage went poorly. Hannibal had dispatched a Roman army and Consul; Sicily, Rome’s ally, was succumbing to a Carthaginian fleet. In Rome itself the technology of the gods was jeopardized:


In addition to this dreadful series of disasters, there was as yet another cause for alarm in the occurrence of certain events of evil omen. Of these the chief was the conviction for sexual incontinence of two Vestal Virgins…One of them was buried alive at the Colline Gate, the traditional punishment for this offence; the other killed herself…The act of impiety coming, as it did, as one of a succession of calamities, was not unnaturally looked upon in a superstitious light [another translation has “as a portent,” as “superstitious” has a negative connotation in our era], and orders were given to the Board of Ten to consult the Sacred Books…On the authority of the Sacred Books some unusual rites were performed: one of them consisted in burying alive in the cattle market a pair of Gauls, male and female, and a pair of Greeks. The burial was in a walled enclosure, which had been stained before with the blood of human sacrifice–a most un-Roman rite. [Livy, XXII.57]


A Vestal Virgin, broken, is buried alive, what she contained passed into the ground at city’s gate. Gauls and Greeks, both of subjugated lands, are condensed by live burial into the city itself,


in a walled enclosure, which had been stained before with the blood of human sacrifice–a most un-Roman rite 


Not so un-Roman in city proper, sacrificed in a cattle market, where life is purchased, broken, redistributed. Human sacrifice somehow unnecessary under the expansion of domain, perhaps this a greater appropriation in other vessels, but domain in 216 was in jeopardy of contraction.


American archeology reveals edifices where (presumably) manual labors involved in construction are buried at the base. Labor itself a controlled use of content, later burial a harvesting of their very potential, placed in grand edifice to shape material at greater distance.


Social organization expands as the breaking of vessels to place their contents elsewhere. Our bodies grow by consuming the world, containing it, later our minds accomplishing the same by other means. Southwestern prehistoric burials may contain broken vessels accompanying the body, broken sometimes quite symbolically, an otherwise perfectly good pot having its bottom holed. What these bodies used cannot be permitted to stay, for its use, its contents, would belong to the departed, beyond control of the living, life potentially caught segregated from our living now. Those pots would now contour flow in ways become sterile. So break the pot to declare that vessel of man dead gone, perhaps the man also broken, his burial an appropriation of what he had for some still living, what he was taken from the husk, taken into a new vessel we call burial.


Perhaps our Christian burials have blinded us. Christ owns our corpses, payment for promised resurrection. We living can get nothing from them. But without that contract, the body is full at its end, having accumulated as we living still accumulate, its ending a resource of great portent. We do not just break the dead; we divert their content.


Vessels may be broken yet revered. In the Southwest beautiful bottomed-out pots may be found in precarious places, one as large as a man’s torso, somehow pulled up a steep cliff to reside in an otherwise inaccessible cave. The pot may be unblemished save for its bottomed hole, somehow padded to survive whatever roping system placed it into miracle so much later found, an autistic communication unawares.


There high, inaccessible, forgotten, a shape abides. Imagine flow into that shape, effort of hands past still at work, contouring a metaphysic, something compelled to enter shape man defined, then exiting in bottomed hole, a piece of beyond perpetually formed as man would have it. Placed high hidden, but out there, still part of human purpose. A metaphysic diverted, swelled, released, something lives remaining need not do, the art of some man dead kept going, he did it, we need not, thank that, his bequest far distant yet with us in the currents of the world.


We can imagine the small team effort needed to place a vessel high, a social engine for the living, mutual commitment demonstrating prowess, integration of effort. We can imagine some vessels shattered in the effort, imagine that such failure has social consequence, the shattered form having a history which makes it a body, shattered into a corpse of a kind. Our well modeled reasons for this effort may be quite on mark. But consider the ideology used to drive that effort: revere what stored, but forbid it this now. That vessel reverently placed on high absurdity is also imprisoned against new use. Perhaps to avoid the accumulation of bodies at edifice’s base. Perhaps in memory of such accumulation then distant. Perhaps in memory gone, only fear that something terrible once happened.


Oh we growing things–we like what we are. But not so much when seen in others.

From the journal of Henry Mitland


9. On the United States Supreme Court

With Benjamin Suzuki, summer “archeology” excursion


Dusk finally come, onwards to 9 pm. Benjamin sits opposite in the small dinner, glasses dusty, peering toward obscurity, myopic Chief Justice, always wondering where here is. Another trek tracing steps that may never have been–like jury deliberation he bellows in impish voice as we scour sight for echoes of ancient mundane life. Renews respect for essential obscurity of civil juries. Place explanation as a landmark to navigate maybes and might have beens. We proclaim the world as everyone else proclaims us. Somehow resolution comes. Who proclaims that? Or, as several well salaried philosophers would insist, have I just made a linguistic error? But salaries are part of that resolution beyond anyone’s proclaim.


We managed to convince ourselves of vast process this day. Hearths burning in desert cold, circled by lives of minutia, around they go, too much night to live, so make cosmic stories, fire glint like star to direct comrades the last few steps to here. Light of day at night, fueled by world contained in wood, released, rising in insubstantial heat which we feel too in embrace. Somehow hearth became pyre, likely through the mediation of cooking, world released in fire to remake meat, fire later releasing our dead to crumble into carbon dust, hearth now both release and return. All from walking around the only light at night. Makes one wonder what goes on up in the stars.


Perhaps clarity of view is light dissipating into darkness, darkness telling us to go no further. Now we have light everywhere, can push back the dark with a knowledge foreign to our daily lives, have no clarity of origin, nor want one. Light reflected, light everywhere, what we are, can be, disjoint from those circling ancestors. Our days have been uniform, but not our nights: we have evolved to extinguish the stars.


Dusk comes and no hearth lights. Light modern makes day and night the same. Benjamin squints for squinting’s sake, peers at the paper place mats before us.


“Bird! Well, bird like head. Maybe. Certainly long beak.”




“In place mat! See waterfall. Inside, man related to bird.”


Yes, in the turbulence of water’s fall one can discern a beaked face. He’s also prone to greet the salt shaker.


“Father’s great insight. Fake what is already there.”


Father was in creative advertising. Telling us what to think so world will work. I wait out the present tape delay, instalment sure to come.


“Denny’s restaurant chain. Father took picture of pouring syrup, somehow put bird face in flow. Everybody happy waiting for their breakfast, not knowing why. Must be because you’re at Denny’s.”


Pout pause.


“Bird face already there! Why cover it up with bird face not there?”


I have an uneasy feeling that a principle of jurisprudence has just whizzed by.


After another pout-pause:


“Father used oriental sensibility to make millions. Well, not really. But enough to put me through law school. I say, sensibility not made but found. Finding is better than making. Ontological principle.”


A hard man who will not create for us, freedom abandonment for purity’s sake. His father knew what to think, what must be thought, consequence of child internment in a Canadian Japanese displacement camp. Vastly distant, the war still took everything; that war almost made a humanity, on the surface. Everywhere a story of war, a story of God, coming to intervene, omnipotence merely unpredictable intervention–a common word, war or God. His father embraced the technology of communication which blossomed after that war, fascism done gently right, decentralized thoughts, centrally produced.


Images placed on paper mats, billboards, in a glass of scotch, or smoke of cigarette. Science fiction made commonplace, hefty salaries giving progress direction, whether the miracle of photograph worked less important than its presence.


From this Ben rebelled into zen, erasure of mind, of all tools of control, iron purpose to defeat all purpose, escape in dancing paradox, rulebook just around the corner, but not here, the hardest purpose being no purpose. Yet when the disappointment of maturity came he accepted his father’s core premise: use the tools of destruction before they use you. His father embedded himself in the law that interned him as child. Ben would make that law, rebel that law against itself. A futile goal, but I suspect he had it early–with no ambition at all.


Ambition is how we know others. We don’t know people, but their fears. And are deathly afraid when ambition absent, society an equilibrium of fears. When we go to bars we drink in satisfaction to one another’s fears, mutual revelation surety of modern friendship.


Somehow imp Suzuki fooled our game, a Spinoza working on his Ethics, his way to blessedness, right in front of us. He hid in the bland ambition of stasis, his words free because unheard. He had to live, so he did; but I do not think he thought (or thinks) living important. Not important for him, but essential for others, which kept him in our heres until facing me now in this unnamed bit of Arizona desert. The pivot of our Court does not care where here is. That here is I speculate a curse, released only by desperate belief in the unexperienced here of others.


What we saw this day has retreated into darkness where civilization still does not go. We tramped the day with Ben calling out faces in scattered rocks and cliffs, markers of histories so dense the world should burst. Too many paths to follow, which is the point of his perpetual shout of see. A landscape barren because we cannot pay the price of its density; so too for science, I think–we specialize because reality is too much for us, all our successes grounded in intentional ignorance. Grand is evolution.


He pouts his father’s made image because life is too dense to behold. Which would be his father’s point; progress is a pruning. For all Ben’s rebellion, his father was with us this day. We tramped in sight of faces astonished, anguished, blessed, and produced a refrain common to all:


image screaming

too much of us

shattered rock


The world does not want to be known, knowing pulling it apart into existence. So spiteful are we: forced to exist, we force existence everywhere. But what we saw this day–to that darkness has come, bringing oblivion anew.


Ben blinks in the civilized light, wishing there was nothing else to say.

From the journal of Henry Mitland


10. On the United States Supreme Court

Upon encounter of an archeology dig


Ben has left to visit Salem. Why leave? Everywhere Salem. Why I am such a pleasant person. But leave he does. I linger, hearing of a small dig in an ancient dry riverbed. Unspectacular, as are most digs. Small scrapings of people who scraped smally in life, their insignificance the archeologist’s hope. There are grand digs, where academics mimic the one time importance of their ruins. Like many a biologist, they strut with words, speaking before anyone else, owning what cannot be held, then comes their next project, or retirement. What happens thereafter doesn’t matter. Economists don’t quite do this. There is only one economy–sort of. They vie for Idea to which all must conform and, most disconcertingly, an idea may seemingly be held tight in the mind.


Archeologists can escape through the mundane. Humble detritus may be grandly placed, the mind a greater world than that created through the too often present human mechanism of slavery. Or so many a mind must believe to endure.


The mundane grandly used: bones, teeth, marked through life’s use in syntax unknown to the user used; ceramics holding the world by depicting it elsewhere on its form; jewelry draping its owner in process by which he is otherwise controlled; and the final vessel of life–the grave which, like all vessels, redirects rather than contains what is.


In the dig explored today a grave containing a ceramic vessel containing something akin to jewelry. And something else–ashes, likely a cremation, needing chemical analysis to confirm, I am told. In that pot, dirtied with ashes, small copper bells, capable of being strung together. The best preserved examples, I am told, sound something like a low frequency baby rattle. Their copper may be nearly pure; with no evidence of local production, copper in minted bell are likely imports from the south, upper Mexico or lower. An expensive item, although what expense is in that then we may not understand at all.


One on the dig says he has found these bells before, in the grave, not cremation, of a young perhaps pre-adolescent girl. Ashes present today suggest a small body, perhaps infant or child, although one of his colleagues turns his nose to such speculation.


Turn that nose. I am not one of you, and no one will know what I think in any case. As Ben would say, good thing for science, too.


Vessels do not so much contain as re-direct. Containment is a traveling; even when stationary, the vessel moves its contents through time, the world about changing, making a net redirection of its contents. Containers may break, spill, be emptied otherwise. Power is released thereby, the rush of concentrated contents power manifest. Always a danger, a rush to flood which may remake the landscape which makes us.


Life is containment and controlled release, we summed the latently dangerous landscape for each of us in turn. And death is uncontrolled release, radical spill, breakage not just for the dying but those associated with the controlled release of life which we call living. Death is a crisis of uncontained power, release, uncontainment, being that power, a microcosm of portended war.


And the young, less gated, less channeled, so mostly potential, are most dangerous in their death, that potential then breaking confines, flowing undirected, unpredictably altering the gates through which life must trickle if life greater is to abide. I imagine cremation as a controlled release of potential, contouring a flow which, need, must, go somewhere, controlled through world material encountered in ritual.


So place the strung small copper bells over the small burning corpse, hang them above so the ascending heat makes a tinkle, redirect the potential just a bit, make a little more sound now lost, directed into the memories of those once fondly always hearing. Keep the greater containment surround whole by shaping the splash of potential which is death.


The corpse, once jingling in glee, now has its potential released through that memory remade. It flows among the channels that would have been, a helpmeet to its surround, to those still here, a light rain, no wash flood which would feed itself through the denial of all containment.


We are our contours. Each I would have a flood if the source. But breakings destroy source, each shattering a new spring, and this keeps us all at bay. Save in death, where the slow change which is endurance is already lost. We fear death not for our future, but our present. We fear not our own, but others’.


Which leaves the cremated ashes, potted and buried. Still material, still potential, so contained, unavoidable containment, in burial. We of modern West have pried the seal open. What of the potential released? No worry. We have our contours of control, called academic journals.

From the journal of Henry Mitland


11. Shortly after confirmation as Associate Justice on the United States Supreme Court (so before nomination of Benjamin Suzuki)


I thought it might be over, they gone, present but no longer speaking, this at times a greater loss than the absence of bodies. I newly appointed Associate Justice of the United States Supreme Court, fine evidence that there are few Holmes groomed to greatness. They Hopi, custodians of something that perhaps never was as they think.


As they think. The power of social equilibria to shape Descartes’ irreducible interior, I think, therefore I am into I think, therefore someone makes me be. We, each I, a progression of makes too sparse for Newtonian integration, no fictive ever fine before and after to make a whole, to bridge the gaps where causation hides. Perhaps a blunt do primal placed made our first I; but how a progression of do’s are done makes us a collection of I’s.


I come and stand long in greeted silence, that their equilibria of acceptance, their silent stance as important as what latter is uttered. Silence not just framing the said, but its very ground. Where are they in that stand; when they nod toward an outcrop of rock, what has been done? At times I have thought they laughed in beer for hours after my show; at times I thought they pitied my necessary presence, necessary for them as well as I; at times I thought their custodial role for life gone had just naturally generalized to me, their life gone not my road kill culture’s life gone.


They stand as silent as the distant terrain they view, as though silence escapes bound time until the movement of hills can almost be discerned, an escape for ideas imprisoned in unexperienced life past, silent gaze slowing world until the triumph of this now is gone. Slowing world until aid comes in rocked hands always there, pointing toward ways to be where our great failures cannot go.


Culture is much a binding of time until the grand events of game break the freeze. These men stand gameless, residue of games long extinguished, articulated only as loss. Their value lies in the non-fit between their thought and the greater world. They are not an alternative path, but a no-path. Which is why I have ever come, risking an ostracism which should not matter. I ever come because the substance of my days eludes me. I am secured, respected, not without import, yet cannot say why this is, or should be, so.


I sat the Federal Circuit twelve years, really too long and boring to be potential for the Grand Council. Patents, international trade and the tiny voice of bureaucrats supplicated my favor, yet I have never understood the reason d’etre behind them all–money. Money is all flow, meaningless until it jumps across ledgers–or threatens so. Number pushing material and people forward, backward, or sidewise, all the same to flow, a magic undiscerned because ubiquitous. We are not meant to understand it, just fear our need for it. Our account grows and we are secure, valued; our account drains and we face an oblivion other than death. We battle over it yet only it is insured continuance. We live to die and it remains. A popular sociobiologist lists the three greatest human inventions as money, market, and media. I have sat tribunal over them all and can tell you they are not human. Which has lead me to wonder if there is a human.


Wonder which draws me to these men in hope of silent greeting. I want the flow to stop. I do not want to be a gene awaiting replication. I do not want to be an account ready to buy. I want to stand in the flow, not be of it. I want to know the why before my days are done, yet do not think the why will matter let alone knowing possible. I am a judge to escape humanity’s flow, to find the human which made this humanity–and know I will fail, for humanity now makes us. So I come to those who have left failure behind,who know so much failure, failure made for some other world, it becomes the ground of their walk. We outlive flow, for a while. There they stand, in a stillness which is bare existence.


My laurel cannot phase their stand. They know why I return, and are prepared. Three gifts are proffered, three pieces of Native American jewelry, none of Hopi direct.


A bolo tie, made by a Navajo, of a brown Chilean agnate. The stone houses a bird, standing or flying depending on mind’s tilt. In the bird’s interior a white quartz of face screams, cry carried on the call of birds.


A ring by the renowned Effie Calavaza, Zuni of New Mexico, black onyx from the New Mexico lava flows, polished dark into absence from which all comes, her trademark silver serpents circling nothing so it may be, we thereby wearing possibility on our creating hand.


And a silver cuff of the Hopi kachina Mudhead, made by Navajo Floyd Becenti whose 9-11 anguish sits silvered in the Smithsonian. Mudhead, protector of the infirm, caked in brown-red mud of earth from which life sprouts, ready to stuff this bounty into a victim’s mouth to make him ground for other days.


Without comment these Hopi give me things not of them, things made not for them but the monied surround. They watch me open the gifts, then depart, I in the stillness I wanted to penetrate these many visits. Never speaking, they depart, leaving me where they were.


Summed, these gifts are considerable. Where did the money come from?

From the journal of Henry Mitland


12. On the Fifth Circuit

Notes after an Archeological Society meeting, undated 


Central Eastern Arizona desert. Evidence of a few make-shift houses, hearths outside, one structure with hearth inside. The latter has ash layered, desiccated into a hard, clean breaking strength. The site seems temporary, of a few weeks, no evidence of refuse associated with prolonged occupation. Pottery shards of diverse, distant regional styles, shell bracelets, rock jewelry. Material imported from diverse locales, yet unsupported by echoes of population. Dated to late Hohokam.


A trading site, distant from all parties, used not just for a few weeks total, but for a few weeks at a time. Transfer of trinkets without material import. Bowls unable to revolutionize use of bowl–only of different marking, symbols conned. All done in relative nowhere. A forced march of a day or more for all comers, removing all from–other trading clients.


All so useless trinkets may change hands, their use rarity in their new coming abode. Under transport of feet symbols dominate. At least at first. We know from Chaco that backs made mules may break with the weight of symbol unfolded to be a world. But perforce it begins near weightless, value condensing with traveled distance.


At this site value is monopolized through distant meet. No third parties to contend for stranger’s attention, to raise the price or promise future payment. Meeting in nowhere, no side knows the value it confers through exchange. A cartel in mutual ignorance of where value goes.


That value is social. No material improvement in trinket or bowl, but indicator of distant contact, or network to that end. Fear of intervention, or fear that backs will turn in crisis. Fear that what material there is may be taken, redirected; that supply or its promise may vanish. This the flow of traveled trinkets signals–that those dealing in men may take the material men make.


So too gold, its rarity token of others’ labor–completely useless if all would so agree together. But we will not. We each want others to fear its presence–and so we all remain in fear. Gold amulet, or delicate shell culled from the sea into bracelet–both signal the possibility of intervening hands to the beholder. Jewelry begun to free the mind momentarily from life travail become a weapon of fear.


This archeological site is instance of the repeated genius of discovered, created value, where that made in respite or marvel becomes perhaps something distasteful in foreign land. What we create becomes culture when torn from our hands. And valuation, many early ons, became a matter of whose hands procured its residence.

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