Kendal Q. Binmore: A cacophony of silence: ground of the Triumvirate: 4. Traveling awhile with Justice Holmes

4. Traveling awhile with Justice Holmes


Honesty is neither offense nor defense,

but perpetual re-creation of a world.

Benjamin Suzuki

On the Appellate Court of Oregon


           Delusion makes my craft. All these words say nothing new. There is no novelty in the doctrine of release to the other which ground the Triumvirate. Free speech is the same. Consider the iconic passage by Justice Oliver Wendell Holmes, dissenting, in Abrams v. United States, 250 U.S. 616, 630 (1919):


[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas–that the best test of truth is the power of the thought to get itself accepted in the competition of market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wage our salvation upon some prophecy based upon imperfect knowledge.


This no different than wagering a solution on release which makes an other. We may say we test our ideas in the market; but once released to this end they are no longer ours, and may well return, circling overhead, something other than we thought. Holmes mollifies, employing a false sense of possession to motivate release for risked success, so failure, in the market. The Triumvirate extended release unambiguously, abjuring Court control of rights formation in the first instance. Their solution to the culture wars was to not decide–satori so others will come.


           Linger with Holmes. The Constitution is an experiment for holding experiments. There is no reason for the grand experiment if truth is clear. In a letter written the year of Abrams, Holmes portrays himself as a judicial soldier in what must be a temporary cause:


Little as I believe in [free speech] as a theory I hope I would die for it as go as far as anyone whom I regard as competent to form an opinion, in favor of it. Of course, when I say I don’t believe in it as a theory I don’t mean I do believe in the opposite as a theory. But on the premises it seems to me logical in the Catholic Church to kill heretics and the Puritans to whip Quakers–and I see nothing more wrong in it from our ultimate standards than I do in killing Germans when we are at war. When you are thoroughly convinced that you are right, wholeheartedly desire an end, and have no doubt of your power to accomplish it, I see nothing but municipal regulations to interfere with your using your power to accomplish it. The sacredness of human life is a formula that is good only inside a system of law…the rest… seems cold talk if you have been made to feel popular displeasure. (Holmes to Harold Laski, 10-26-1919; In Richard A. Posner (ed.) The essential Holmes, 1992, Univ. Chicago Press, Chicago, p. 321)


I…think man at present is a predatory animal. I think the sacredness of human life is a purely municipal ideal of no validity outside the jurisdiction. I believe that force, mitigated so far as may be by good manners, is the ultima ratio, and between two groups that want to make inconsistent kinds of world I see no remedy except force….[I]t seems to me that every society rests on the death of men… (to legal historian Frederick Pollock, 2-1-1920; Posner, ibid, pp. 102-3)


During the first year of the Great War he is stark:


classes as well as nations that mean to be in the saddle have got to be ready to kill to keep their seat. (to Lewis Einstein, 10-12-1914; Posner, ibid, p. 101)


           The sacredness of human life is a formula that is good only inside a system of law. Not so. A parent does not protect for jurisprudence sake. Sacredness in the particular, not sacredness in the general. The latter does not exist. We need not smother breath to stop life; life is action, and that is lawfully smothered daily. Not just action which takes what another has: we smother others’ potential and call this talent. Holmes’ Abrams dissent rests on a happy fact of constitutional language, language which, in extreme, he thinks sociologically unsupportable. Why then the happy language?


           Commonly, the answer given is to forestall our future demise. We may win now, but not later. Jurisprudence is social insurance, limiting our fall at cost of potential height. Or some variant: groups may demand sacred life to forestall a superior, then their colleagues. Suzuki is slightly different–which is all one can be. Sacredness is not a compact, but an always product of life somewhere. The social physics of distance prevents perfect cumulation of victorious suppression. To quote twice:


Without [social] space we would collapse upon one another, contending for dominant single identity. This happens among us quite often, locally–more or less. Sometimes we call it repression; sometimes atrocity; sometimes genocide; sometimes victory; sometimes destiny. But distance [space] insulates from collapse. The greatest atrocities fail of perfect consumption. So Justice always recovers. Consumption produces greater distance, greater space. So Justice is continually born of the ever minor collapses in the world. (Suzuki Confirmation Hearings, Fifth Session)


Sacredness is produced by incomplete victory, a consequence, unintended, of the rapacious power of human intelligence. For Suzuki much of the Bill of Rights, and Article IV of the Constitution as well, are the product of the impossibility of complete victory. Indeed, satori is a social technology for precluding even locally complete victory–the temporary dismantling of self to alter alignments in others, confusing or impeding a dominant. The question is not whether sacredness will revive–it will–but at what cost. Multiple small sacrifices of satori preempt greater destruction by the mind; sacredness abides many-wheres, ready for deployment.


           This is no utopia, but vision of unending sacrifice. I am uncomfortably reminded of Gandhi’s response to the hypothetical invasion of India, made early in the Second World War:


there should be unadulterated non-violent non-cooperation…if the whole of India responded and unanimously offered it, I should show that without shedding a single drop of blood Japanese arms–or any combination of arms–can be sterilized. That involves the determination of India not to give quarter on any point whatsoever and to be ready to risk loss of several million lives. But I would consider that cost very cheap and victory won at that cost glorious. (Harijan, 5-24-1942)


Perhaps none are immune to the hysterical alter of war. We are, Gandhi said, each a drop in the ocean of Truth (e.g., Harijan, 5-24-1942), and he would make a flood if he could. Satori is atomistic; Suzuki would not envision such a glorious coordination of sacrifice. Yet he would risk the Constitution in satori with consequences dire upon failure. The unending wager of Holmes’ Constitution is pre-constitutional reality for Suzuki, the ground upon which the Constitution is constructed. The Constitution is special only in creating minor catastrophes to forestall, in wager, greater ones. The Constitution is anonymous, structural satori. No surprise there.


           Suzuki asks–perhaps entices is better–absolutists to employ the wager of minor defeat as internal control of their own doctrine. Interrogated by the Christian Resurgent Senator Mary Talbot during confirmation, he suggests accepting limited defeat can be a policing tool within the Resurgence itself:


Talbot: Souls are at stake. People never to appear again. I sense you would sacrifice some of these to your principles.


Suzuki: You strike well and surely. I can envision no enduring principle which will not invite sacrifice somewhere, sometime. I would hold this true of attempts at global salvation as well.


Talbot: Then who would you sacrifice?


Suzuki: That is no matter of my choice, my vision, or my understanding. It simply is. A faith which confronts with exclusion places unbelief on the pyre to keep itself warm. (Confirmation Hearing, Fifth Session)


Suzuki shifts from a designated sacrifice to an anonymous one, one, we shall see, even escaping prediction. The tools of absolutism have been remixed, not discarded. Suzuki nowhere denies the inevitability of social violence:


The heyday of personal conscience equity has left us hating one another. This is probably in some sense unavoidable. But perhaps the enduring nature of our polarization can be ameliorated. Perhaps our hatreds can move about, a jigsaw of life where the pieces blessedly never fit overlong. (ibid, Third Session)


The slipping jigsaws are not a direct product of the Court, but rather of absolutists themselves. To return to the Fifth Session:


Suzuki: Can you live with unbelievers, Senator? Is not your progress entwined with many who fail your belief? Does not the hand of God use unbelief? Even the Resurgence has tides within. With distance comes unbelief. Even in Resurgence.


Talbot: We struggle to understand the will of God. Finite and human, we differ; but our disputes go to the same end.





Suzuki: [This is] the bargain I offer with your faith. Challenge–but, if turned back, acquiesce, for the moment. The [jurisprudence] which turned you back must let you come again. It is my faith that you will always be turned back. It is yours that someday you will not. But consider: we may both fail.


Talbot: Both?


Suzuki: One may come rolling forward who is not you. Acquiesce in being turned back, as a lesson in what you would not be.


Talbot: You think this will stop the rolling others?


Suzuki: I will not know until it fails. But if you are out there, not disdaining but preparing, I think it less likely. You will absorb discontent in a way jurisprudence can abide.


Talbot: Only if we acquiesce.


Suzuki: You acquiesce because there are some things you do not want to become. This is my gamble. What you do not want to become–that is a matter of internal search and struggle. All jurisprudence can do is try and selectively nurture those with this quality.


Talbot: How so?


Suzuki: By eliding victory into partial gain, perhaps coupled with partial loss. We make our enemy in continual creation. Only by releasing battle can we trim our distaste for the adversary.


Acquiesce in being turned back, as a lesson in what you would not become. Our first enemies are those almost like ourselves who would nudge existence into a foreign conceptual space. This principle is invariant, applicable as much to Jack the Ripper and Mother Teresa. Horror lies in what we might have become, and humanity lies in turning not away. [Be] out there, not disdaining but preparing: so an aphorism of Suzuki’s–Unable to defeat you, we prepare the ground for after your defeat (see Leaping beyond the ancestors, below). Suzuki offers Senator Talbot his very tools of life.


           Among our variants of nearby existence Suzuki’s jurisprudence sides with those willing to acquiesce. Such variants forego immediate triumph in hopes of converting, cajoling, convincing–pick your word in this marvelous medium where sound substitutes for thought–those almost like ourselves, but not. Acquiescence is a whisper of things to come, a preparation, a building of the hearth, the comfort which in lullaby mists the ruthless other which we are not. Those who press on regardless threaten home, that place in fantasy where trials and contests cannot go. Acquiescence designs an interior to attract others, a form of competition where similar variants align to reduce the appeal of rolling others:


I invite jurisprudence as your waiting place. You will have abode, you can grow. But not control, not swell as in the end of days. Even so, I say challenge as you must; try to swell beyond the bounds of jurisprudence as you must. If you are stayed, if you are turned away, then I say it is not [your time]. But you must try again, later. (ibid, Fifth Session)


This no mere alignment against the strong, but competition among the meek. In our markets a faith cannot abide in quietism; it must act, expand, to be. Such is the price of a monetary economy, where even land dissolves without fresh infusions of cash to keep it whole–Lebensraum, ever Lebensraum, cash living breath, flowing from some to others, some suffocating in minor vacuum.


           Suzuki would use the ambiguities of paper life to dodge the rolling others:


Talbot: If I do not defend myself I will be trampled.


Suzuki: In many, perhaps most, wars, yes. But not always in these paper wars. We can step aside and be. And which direction we step shapes the other’s victory. A victory no longer wholly theirs. If I remain fixed, allowing myself to be trampled, I have contributed to the perverse enjoyment of triumph. Such thirst will grow. Sometimes, even in paper wars, this cannot be avoided. But I see the strength of the common law in such sidewise slides, where what was contended is not quite what is given. New worlds of possibility portend, old battles and alliances perhaps discarded for new ones…. Battle cannot be avoided; battles of the past can be. Let litigants leave the court bewildered over win and loss.


Talbot: And where will these slides away from former win and loss take us?


Suzuki: Away. Away from the brutal resolution which is our origin. Away. For a time. (ibid, Fifth Session)


Battle cannot be avoided; battles of the past can be. Acquiescence delays our brutal resolve, delays loss, delays extinction–but only that. Lebensraum made of paper, scaffolded through the ambiguity of words, words inflating in value as their promise fails. Words whose outcome is delayed, the delay we live in, our home in inclement weather. So delay becomes the currency of life.


           Delay returns something of the landed economy to us, where competitive resolutions were rhythmically slow and less inclined to vanquish abode. Indeed, delay props the monetary economy as well, forestalling the leeching of money which becomes emaciation. The marvel of the monetary economy is the recovery, the re-creation, of the landed home. When this fails, violence comes, private or social.


           The Triumvirate employed the currency of delay, currency faithless save for belief that it shall always be grasped, the same faith as money, perhaps a faith greater than money. The Triumvirate’s path was not singular. Mitland would stave off societal collapse; Cabrales would wander with God; Suzuki, Suzuki would sojourn with as many as life allows. The currency of delay, void of content, effectuates these three.


There is a place to stand where the exclusive property of being right does not go. I stand there. (Suzuki, Confirmation Hearings, Fifth Session)


Civilization, faith, hope survive on content free delay. God is impartial.


           Holmes is impatient with this reverie on the too important Suzuki. Young abolitionist of Civil War, remorseful patriot of the Great War, he lived the consequence of unbending resolve. Yet he would forego final resolution where he could, as in his famous Lochner dissent:


I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. … [A] constitution is not intended to embody a particular economic theory…it is made for people of fundamentally different views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. (198 U.S. 45, 75 [1905])


For all his trust in the brutal finality of the world, he would design escape where he could: an ill-advised economic law can be overturned by the democratic process, the dissenting minority waiting in resolve. He championed entry into the brutal game, forbidding only those gambits which preclude rival entry:


Every idea is an incitement. It offers itself for belief and if believed it is acted on … (Gitlow v New York, 268 U.S. 652, 673 [1925])


I regarded my view as simply upholding the right of a donkey to drool. But the usual notion is that you are free to say what you like if you don’t shock me. Of course the value of the constitutional right is only when you do shock people… (to Lewis Einstein, 7-11-1925, original emphasis; Posner, ante, p. 322)


Brutality cares not for others’ entry. Then change your view until the present brutality exits:


Man is like a strawberry plant, the shoots that he throws out take root and become independent centres. And one illustration of the tendency is the transformation of means into ends. A man begins a pursuit as a means of keeping alive–he ends by following it at the cost of life…. Morality is simply another means of living but the saints make it an end in itself. (to Morris Cohen, 9-6-1920; Posner, ante, p. 105)


Faith should change its clothes, find a better game to play. Civilization consists in selection for such equanimity. Reason, science will make new ways of living, with faiths discarded when frayed by use. The competitive entry Holmes champions is for the shock of others, against means made ends, selecting for equanimity. The Constitution is an experiment for the production of civilization, improving life through reasoned utility.


We need education in the obvious–to learn to transcend our own convictions and to leave room for much that we hold dear to be done away with short of revolution by the orderly change of law.


… For most of the things that properly can be called evils in the present state of law I think the main remedy, as for the evils of public opinion, is for us to grow more civilized.


If I am right it will be a slow business for our people to reach rational views….I do not pin my dreams for the future to my country or even to my race. I think it probable that civilization somehow will last as long as I care to look ahead–perhaps with smaller numbers, but perhaps bred to greatness and splendor by science. I think it not improbable that man, like the grub that prepares a chamber for the winged thing it never has seen but is to be–that man may have cosmic destinies it does not understand. (Speech at a dinner of the Harvard Law School Association of New York, 2-15-1913; Posner, ante, pp. 147-8)


Let the donkey drool and others will advance as no drool comes to be seen either intrinsically repugnant or valuable. Free speech, born of iron faith unto death, is employed to vanquish its parent.


           Men die; ideas die. Progress lies in accepting both as beneficial. So thinks a man matured in Civil War and Reconstruction:


every society rests on the death of men… I should be glad …if it could be arranged that the death should precede life by provisions for a selected race, but we shall not live to see that. (to Frederick Pollock, 2-1-1920; Posner, ante)


Progress happens to rest on the conversion of death from men to ideas, but not always so:


We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for [the] lesser sacrifice [of sterilization] …in order to prevent our being swamped with incompetence. (Holmes for the Court, Buck v Bell, 274 U.S. 200, 207 [1927])


Death not of breath, but the will to breathe. But these are imbeciles, so it does not matter. Which tells me my right to procreate rests on my civilized state, my ability to switch ideas to facilitate progress. So Holmes closes his letter to Cohen (ante)


I think the best image for man is an electric light–the spark feels isolated and independent but really is only a moment in a current.


A striking simile devoid of content. Anyone who has fought against the lighting current of his day knows neither himself nor that current are civilized as Holmes envisioned. The struggle is tenacious on both sides, and if the counter wins to become current, that prior fight all but insures tenacity in the new light. Only by planning failure before victory can tenacity be defeated. A foolish sentence, an example of the false power of locking words in syntax. Yet I think this what Benjamin Suzuki was after; I think planned failure the reason he wrote the posthumous zen journal (Leaping beyond the ancestors, herein).


           The surest evidence that Holmes is wrong (apart from the passage of time seemingly designed to make us all wrong) are his dissents. He would make the Constitution into a civilizing experiment, to force shock, yet acceptance of this design requires the civilization he would mold. Today we have Holmes’ Free Speech but not his reasoned equanimity thereof. He lived with his dissents through faith, a teleological progressivism (ah, I have labeled the man, so am now done with him) which would bootstrap his dissents into Court majority. So he concludes his 1913 dinner speech (ante)


The other day my dream was pictured to my mind. It was evening …the sky was aflame with scarlet and crimson from the setting sun … [B]elow the skyline there came from little globes the pallid discord of electric lights. And I thought to myself …[that] from those globes clustered like evil eggs will come the new masters of the sky… [T]hen I remembered the faith that I partly have expressed, faith in a universe not measured by our fears, a universe that has thought and more than thought inside of it, and as I gazed, after the sunset and above the electric lights there shone the stars.


We–that word which is no one–have become masters of the sky. But faith rends still. This should not surprise. Holmes could abide his dissents only through faith in the lure of stars, the residue of God. He could not make of faith a neutral cloth for efficacy to tailor; there was no present efficacy in where he stood, under the stars.


           We are too brutal to abandon faith. Not the brutality of rape, mental and physical; not the brutality of the sexual-social games which rise our petty pleasures; but our brutality in the need to be which makes all else secondary, consumes all value and endangers our offspring into becoming us. Perhaps the invention of faith was parental hope to let a child become other. But from there it became gorgon and, to borrow from Cabrales, the men of 9-11 are no different than ourselves. That catholicism is faith policing faith. There are no eggs electric to make us into stars, no teleology to remove the tools which brought us to this present. In this the Triumvirate is closer to modern biology than was Holmes; what made us, we are. Here, then, the present pivot of hope: if we are no different than the suicides of 9-11, why then are we not them, they not us. Again the hodgepodge of words in syntax which is our greatest tool, floating error to parlay escape.


           Cabrales answers: God is not whole.

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