Kendal Q. Binmore: A cacophony of silence: ground of the Triumvirate: 2. Henry Mitland’s absence of God

         2. Henry Mitland’s absence of God


All religions look foolish in the day.

But attend their nights.

Journal of Henry Mitland



          The Court Triumvirate–Cabrales, Mitland, Suzuki–these three who so often formed ground upon which their associates could stand, these three each reached conception of a world necessarily fractured by faiths. Where others were dismayed they forced hope; but hope is no more than prediction uninterrogated. Each of the Triumvirate refused privately to condemn belief; each refused to topple the past to triumph in this present. In this they converged before they met. Henry Mitland has a journal entry, dated during the full Suzuki Court, strikingly similar, in tone but not detail, to Suzuki’s appellate entry, ante:


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, God, 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.


Suzuki would not condemn God to nothingness as Mitland does; to do so interferes unnecessarily with talk of God. It is talk of God, not God, with which jurisprudence contends, and both men realize the creative pulse such talk instills, or can instill.


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. (Journal of Henry Mitland, ibid)


God has nothing to do with our world save through Its absence: a vacuum into which hopes rush, collide, making voice, making text. As does satori, removal of what we that was spurs creation.


           Mitland was a student of the birth and death of civilizations. A civilization risks collapse when its engines of micro re-creation fail. Yet failure is not silence, and out of collapse the engines of former preservation endeavor to raise us once more. The wonder of prehistory is the repeated awakening of civilization–so marveled Henry Mitland. Talk of God is both creation and control, maintenance of the perfection of what has already been said. Talk of God is my namesake, Quetzalcoatl (and there’s a story of controlling name on life), lawgiver who when challenged by another leaves, promising to return; and he does, not quite where he was, but somewhere close by, to pick up words after too many challenges among the descendants of victory have scattered them all. So this entry, dated November 2001, while Mitland sat the staid Federal Circuit:


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 below. Needs encounter needs, stretching each other, entwining in mutual control, threads flopping beyond the control of either, threads meeting at hope’s end, yarn to make fabric anew


Needs flooding, ever replenished, thread made yarn made fabric. And in the shaping of fabric talk of God returns. Mumbles to murmur to rising voices hopeful of harmony, sonorous dominance of a few, and so God comes among them, the many grateful for surety of haved whole.


Needs scurry on God, burrow into God, needs come en mass until the fabric of God is inundated, voice of God muffled to obscurity. Talk of God rises, digging through the covering silence, to replenish memory, clawing upward through revealed fabric to have a piece–to have the compost of dead need, need long ago 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.


Mitland, self made anthropologist, historian of civilization without audience for his speculation, no audience appreciative, jealous, derisive, no audience concerned with its many selves, never with the speaker. Mitland avoided that instrument of being, alone in his journal, until the arbitrary intervened. Harmless Mitland would use the past to make the present, past making present in any case. God as talk is all we know, and he would find the bones of talk, tracings of the past, find directions untaken, no, not quite right, not so much untaken as ungone. Paths still there, perhaps there because not taken.


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, barely able to hold our living breath. Crawl, squirm, hands 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. (Journal of Henry Mitland, on the Court, otherwise undated)


Talk of God, the past in which we move, our walls of finitude, lives of the dead made our own. We rush to find what can never be touched. Mitland knows it is space which the past gives, or can give, space to dance, to move apparently, only ever apparently, unbound. We should strive to touch vacuum, not the dead.


           God has nothing to do with our world save through Its absence. God’s perpetual exit is our space to create. This destructive God revealed only as absence, running away so we may grow, is creation freely given. If ever there was love beyond our understanding, it is here. A strange mix of apocalypse and sacrifice, apocalypse in the vacuum of withdrawal, sacrifice in letting the creation of another come. Satori. God of All lets us be finite, the one thing it cannot be. Denial of the Absolute becomes, is, creation. Henry Mitland would take this running vacuum and harness it to a single civilization. He would allow minor collapse, minor vacuum, to preserve greater process. He found a secular judicial satori through the study of prehistory. 


           Judicial satori gambles destruction is not the end. Suzuki’s judicial satori is foremost an engine of planned destruction to, once again, forestall greater destruction. No civilization permits its intellectual autopsy, Mitland penned. Yet weakness rarely reveals itself in advance. The Court’s removal of rights formation to the States under the rubric of the Ninth and Tenth Amendments dislodged the security of what we thought we were; and we found, still find, through our reciprocal recriminations of what a right should be, that our weaknesses abound. Mitland would force, has forced, autopsy before death. Suzuki’s judicial satori, declaiming past law without deciding replacement, measured our strength through minor collapses, autopsies unending. For Mitland, a partial escape from the blindness of decay. No need to wait for Quetzalcoatl; he is in many of our wheres, in the faces of our allies, in the faces of our enemies, in the faces of our passers by, perhaps mostly in the faces of passers by.


           Henry Mitland saw something of this satori to come before meeting Suzuki, watching the Chief Justice to be’s televised confirmation hearings, hearings growing audience by day. A remarkable entry presages the close intellectual alliance later forged by the two Justices:


In Chambers, last day of Suzuki confirmation hearings. Suzuki’s stories… those things push[ing] 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…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 flees. We are God’s happy failures, Benjamin Suzuki. Will you come to push us towards the abyss of unrealized perfection? I await you Chief Justice. There is much to do.


Then a postscript, dated a few hours later, a postscript which caps both judicial satori and Mitland’s perpetual escape from civilization collapse:


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.


This last sentence is the quintessence of satori, distilled by a non-practitioner; it is also the quintessence of American Free Labor Ideology, righteous taunt to Civil War and incomplete abolition of slavery, an ideology grown in the mythic expansion of America without cost, an ideology grown in the ruthless hope one’s rival will die quiet, unrecorded, an ideology which later sanctifies Benjamin Suzuki as apostle of the Thirteenth Amendment. Satori is present in that bloody birthing mess of failed liberation called abolition; satori is present in collapse.


           Mitland’s entry was spurred by Suzuki’s confirmation concluding comment, reading in part


These days we have made a story, you and I. There are so many stories in the world. I wonder why we keep making more; certainly it has all been told by now. Perhaps we keep making because we keep failing, deaf to the hearing, unable to remember all that has been made. We keep making so the potential of words will keep coming: it’s the next story that’s important, not the one we are in. We’ll yet beat the failure of realized potential. Somewhere out there, we say, is a person doing just that. (Confirmation Hearings, Fifth Session)


We keep making because we keep failing, this a definition of life. Here a page from Gandhi’s body to link these men not yet met:


The reformation that Buddha attempted has not yet had a fair trial. Twenty-five hundred years are nothing in the life of the world. If the evolution of form takes aeons, why should we expect wonders in the evolution of thought and conduct [to take less]? [Y]et … I hold it to be perfectly possible for masses to be suddenly converted and uplifted. Suddenness is only seeming. No one can say how far the leaven has been working. (Speech in Bombay, 5-18-1924)


I take from Gandhi that judicial satori is nothing special. Nor is apparent failure overleaped by story. It is essential to Gandhi that there be no novelty in what he does; the mundane keeps the world afloat, keeps apocalypse at bay, and it is the mundane which links him to others in renewal’s hope. We err waiting for a prophet to tell us what to do; we already know, or at least some of us do. A Reformation is nothing special; it is our shock and anger at what we have become that makes the storm. These two Justices are linked by what is nothing special, and that made a storm perpetual. These two refused to cap life, refused to cap the hopscotch of failure to failure, refused to practice a failure absurd. An aphorism of Mitland’s: Love the people, for they come afull always.


           It’s not true, of course. People may come not afull but in slaughter. Slaughter can be more common than hope. In dictionary, slaughter can be hope. Only when hope is divorced from specific content can a collective people flourish; for there can be no monopoly of hope abstract. How this happened is the essence of human evolution, or, better, the essence of civilization’s progress–albeit not always its being. The third Triumvirate, Anthony Pau Cabrales, saw this in the rolling certainty of the Crusades. Anne Clare Young found hope abstract nestled in the ancient common law jury; once she had, faith untethered from religion all on its own–she joined the Triumvirate in the Voucher Cases. Suzuki, ever sly helpmeet, found a path to her as well: judicial satori manifest as jury decision, shifting a world but not the world, then gone. There seems no end to vacuous application of Suzuki’s satori, a place where all but spite may stand. Unlike Young, Cabrales knew that place before Suzuki joined the Court.

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