Kendal Q. Binmore: A cacophony of silence: ground of the Triumvirate: 7. Judicial satori and the Founding


7. Judicial satori and the Founding


Humanity: a cut into the world between cause and effect.

Henry Mitland

On the Federal Circuit


           America has made a select few of a war generation sacred, cobbling lives into combined text called the Founding, America enduring itself by hiding the inconsistencies thereby engendered. The Founding is text incoherent, and so candidate for the sacred. An open text, lives made text, waiting for entry or exclusion on authors’ demand, stories awaiting appropriation, entangled with one another, pulling each other along, yet amendable to pruning through collective neglect. In fine, the sacred needs pruning, shaped to grow in lives given, yet hopping from believer to believer, that pruned miraculously recovered just when needed. From believer to believer: after Iraq, there can be no doubt we worship a select past.


           Our secular religion is an open canon: history remade, expanded, contracted; lives found, repudiated; anonymous process discovered, deemphasized, forgotten. Cabrales’ God of Christianity is leashed to text, truncated text, but closed; attempts to enlarge that canon have failed to stir but few–the Bible’s marvelous portability is consequent of its closure. Our secular God, the Founding, lumbers within the Constitution, yet made flesh by ancillary texts willy-nilly supplied by demons of various necessity, supplied and removed as forced convenience dictates. Our Founding endures perpetual identity crisis, forced into caricatures of finality through fitful majorities of the Court, caricatures by that Court or its opposition. No God can be so whipped overlong, and Suzuki refused the fiction.


Senator Seger of Minnesota: I’m not getting all of this, Judge Suzuki. In fact, after watching your past performances, I’m not certain I’m supposed to get it all. You seem to be saying that although you have dug us into a pit of stasis, self-deceit in 1787 and thereabouts, or mutually misunderstood babble at that time, has created the happy accident of multiple original intent, which will somehow pull us out of said pit. I think.


Suzuki: Well, yes. Sort of.


Seger: Very precise, Judge Suzuki, very precise. Wait. Let me take a lesson from our Chairman. Precession awaits nine minds.


Suzuki: What I can assert, Senator, is that evidence for multiple intent at the time is plentiful. Consider the debate on ratification. Some supporters gave speeches that live worlds apart from other supporting speeches. Consider Alexander Hamilton, who defended in the Federalist what he thought a failure in private.


Seger: That is politics. That is human.


Suzuki: Yes. The same process operates in your own Chamber, Senator. I think it quite possible that one may vote for a bill when one party holds the Presidency but not otherwise. Executive implementation has great scope, so the bill becomes colored by its inferred future implementation. The Federal government, as yet unformed in 1786 and 87, amplifies such ambiguity tremendously across all three branches. A federal republic with an independent judiciary had never been. Frankly, I believe even Clause based convention votes provide limited evidence of a single original intent.


Seger: Are we left adrift on an ocean of relativism? Not much different than the conscience of the Court you so abhor.


Suzuki: Not adrift. The text exists. It employs phrases used before it, and after. That grounds the measure of intent. But not a single intent. Indeed, adding a phrase or clause may redirect or even exclude prior intents in the document. And certainly the process of constitutional amendment compounds the effect enormously.


Seger: So the original intent theorists have produced a myth?


Suzuki: Yes. But I must stress that choice of some myth is unavoidable; what can be avoided is the unique assertion of a myth.


Seger: You know, Judge, I believe you’re not going to tell me how this, er, original pluralism will change anything.


Suzuki: Oh no, Senator. I couldn’t do that. The doctrine of nine minds and such. (Confirmation Hearing, Third Session)


           How to overtly proclaim myth without undermining its legitimacy, without succumbing to the puppet belief only we, of this writing, have managed to avoid?


Associate Justice Henry Mitland: You want to go deep.


Suzuki: Deep? No. History is skin thin. We fear puncturing it because there is nothing underneath; and that is beyond terror–who would travel there?


Mitland: You would.


Suzuki: We stand on this skin of spoken being. All I would do is move a few steps this way and that.


Mitland: Spoken being. Then it is worse than you say.


Suzuki: Henry?


Mitland: It’s not a skin with nothing underneath. It’s a patch of skin, extending into void. There is skin only where we speak. Where we are. You want us to walk into void.


Suzuki: Then we must speak very fast to make a path!


Mitland: Not all paths take.


Suzuki: No. Beyond the void there is something. Yes, no. Maybe, maybe not. This it says. What is difference between maybe, maybe not?


Mitland: The direction of one’s pivot.


Suzuki: Maybe. I pivot like that. (From the journal of Henry Mitland, In Chambers, during the Right to Bear Arms Cases)


The Triumvirate sustained myth, choice of myth, by pivoting away from completeness, by removing the Court from the articulation of new rights in the first instance. Throwing the States into turmoil over rights formation flowered Founding mythology, obscuring the fact that an antebellum Court had rejected the interpretation of Article IV, Section 2, Clause 1 (The citizens of each State shall have the privileges and immunities of citizens in the several States; the Privilege and Immunities Clause) through which the Suzuki Court denied itself first jurisdiction over rights. In an act of judicial satori, denying itself the power to articulate rights (through Article IV and the 9th and 10th Amendments) ultimately enhanced that power when arbitrating contended State articulated rights. Once the Court was freed from the trepidation of rights formation, it freely demarcated what others created. The Suzuki Court sustained its mythology by letting others make myth. The Founding rose, lumbering toward a self-proclaimed forward, the States, and the Court, ratcheting their God, letting it turn askew, but never forgetting a forward there is.


           Satori is a self-negation in hope, in trust, in faith, in faith combining hope, trust. A faith that difference, what arises by necessity upon my absence, need not be repulsive while different. A faith that difference will elide, shape shift, covering everyone in a share of being. It is not true. There are annihilating incompatibilities. But faith need not be true to sustain. The topology of lived space can segregate incompatibilities for a time, giving the illusion of universal suffrage. As Suzuki said of the Court evolved voucher system, all we have to do is postpone collapse for our now. Suzuki was a Keynesian of sorts, if any of you read defunct economic thought.


           Lived space may segregate incompatibilities. Actually, the promise is somewhat greater in Article IV, Section 2 rights formation. The States may ratchet rights, two or more declaring the same right, forcing a Founding path which keeps explosive incompatibilities apart; not all points are reachable from any given place, or so one hopes. Connectedness is a dangerous drug for humanity, lethal, yet necessary. The freedom of each State to create Federal rights via Article IV, Section 2 curtails that freedom among the several States. Process devoid of prior content produces a path towards coherence. A beautiful hope, a glorious human construct, construct of a war, the Independence, not Revolutionary, War, Suzuki would say, a war now impossible to fight. The slow necessity of mixed volunteerism and compulsion of 1774-8 has been quaked by technology. The Privilege and Immunities Clause was never evoked as federal principle until the Suzuki Court; yet its rationale birthed in slow, intermittent war under hard travel and delayed, inexact communication (see Suzuki, for the Court, The Right to Bear Arms Cases). Perhaps the clause, or rather its predecessor in the Articles of Confederation, was employed in now lost wartime dispute. But the issue of slavery alone smothered the Clause in independent antebellum America; the postbellum Court inherited a corpse, that Court intent on eviscerating the Civil War Amendments rather than extend federal judicial power, save for the fait accompli of abolished slavery as–and only as–legal attaint by blood. The potential of Article IV, Section 2 and the 9th and 10th Amendments had to await a social political economy beyond the ken of any founder. The Suzuki Court employed a myth impossible to actualize at the Founding or thereafter, yet pregnant in the Constitution as first amended. Suzuki satisfied neither the originalist nor rational constructionist; but then he was concerned with words only in so far as they become deeds.


           There is a sense in which the judicial satori of Right to Bear Arms produced something of Cabrales’ fractured God as the Founding. But only something. Cabrales’ God rambles in the fields of creation, God walking A Dios, intoxicated by its perpetual rebirth, fusion of happenstance, happenstance the only life we know, local monotheism the only surety retained, surety against the very happenstance which makes us, which makes our God. The Founding is rather a tethered walk, taut lines to the several States forcing coherence, a concomitant coherence, across a multitude. The Court’s Founding is no fractured God, rather global monotheism; the Founding is fractured not in space, but time. Pluralism against Absolute is lost; but the judicial satori of the Court allows differential Founding across the several States, potential which, once actualized in any State, is transmitted to all States. While the Founding is not free to discard itself as is Cabrales’ God, diversity is retained through the potential loci of change. The fractured insanity of God, Cabrales’ only hope against Apocalypse, is partially recovered through the ability of any State to declare a staying right.


           There is a permanence to the judicial satori of Right to Bear Arms, the Court always absent so others may come to stay the extinguishing hand. Minor apocalypse comes in the loss of livelihood, barred pursuits of happiness and safety; in counter, a Revolutionary Era phrase imported into jurisprudence, as in the gay marriage case Copland v California; minor apocalypse which only the importation of thought may quell. Anthony Pau’s A Dios cannot force importation, being rather voluntary travel to avoid the harming of others. The satori of Arms invites, coerces, importation, a State mediated nonviolence, proactive, as confrontational as children rushing toward fire hoses in Birmingham. Cabrales’ A Dios is a hoped social evolution, God contending against God to destroy Itself, we passive onlookers, suddenly sucked into Deity, gladly or not. The satori of Arms forces social evolution, demands the Founding conserve–not completely, but conserve–its trajectory, placing the unrelenting God we create throughout the land, violence of Royal Crown past made strangely populist social engineer. There is no escaping the Founding A Dios. The Arms Founding is monotheistic, unfractured; yet it retains an indeterminancy of change similar to A Dios. Both satori and A Dios remove controlled outcome from the practitioner; judicial satori imposes the realized outcome, an outcome beyond the courts as such, on all. Nonviolence becomes constitutional process–satori the dissolution of self, refusal to act in the first instance, perpetually present in the Constitution; Gandhi’s fast, waiting for others to act, others which form the social relations about him, Gandhi’s fast no longer lost, no longer failure because unreplicatable, Gandhi’s fast always with us, constant challenge. Gandhi’s fast satori challenging the coming of others, this the legacy of the Suzuki Court. We have been angry with ourselves ever sense, to Benjamin Suzuki’s delight.


           The Court, says Arms, is not responsible for the formation of rights. We, indefinite we of those who will never read this, we all are. Do not localize responsibility in the Court. Responsibility is always everywhere. So Judge Suzuki of the Oregon Appellate Court wrote of the 2006 Lebanon War:


Gandhi in Lebanon. Stick of bones carries his stick, passing another body, pooled blood pillowing its head, responsibility just beyond the horizon, he’ll get there yet, beyond his sight the way lies, beyond his sight someone awaits, someone of no nation, no race, no faith, closing doors so rectitude will not wander off, someone who will take responsibility as he did, burden emaciating his form, waiting for someone, yes someone, to notice. Responsibility is notice, not turning from the crushed bodies, from the wails, amputated limbs, homeless families, amputated families, limbs on invisible sinew gone, amputated faith, the remain teetering, forward, falling, rolling over things unseen, struggling to stand, to teeter again.


Our faiths are in intensive care, yet we force them to their feet, to walk, to travel with us, don’t leave, we could not go on. Faiths mauled by survival, no finesse, just raw certainty remains. Life abstraction lived, error disallowed, only certainty lived, our certainty, ubiquitous our never the same.


Stick of bones carries his stick, walking south, toward responsibility, toward horizon, walking faster, hoping to become horizon, hoping to outpace himself, to be waiting, beyond horizon, waiting for his arrival, responsibility finally found. But no. He is dead, like Rabin, hope expunged by essential belief, belief so essential it needs no hope, is suspicious of hope, knows, wants, abides only abstraction lived. No one to notice this dead man walking, unending fast without efficacy, no one to pause, wondering where responsibility might lie. That the purpose of his fasts, to make you see responsibility jumping from person to person, giggling at its world-wide enduring prank, see me here, no, here, no, over there, you’re so slow, I’m behind you now, pushing you forward, any forward will do, now your right hand, now … Stick of bones made responsibility stop, for a moment, stop in him, grabbed it, clasped it dearly to his life, wasting away in the effort. Incredulous responsibility finds no escape, the portals of necessity closed, in terror cries out, game all gone. In that cry the world is transfixed. In that cry responsibility is no terror, responsibility suddenly everywhere, always has been everywhere; the game was ours all along, no one else’s.


Stick of bones carries his stick, walking south, crossing the boarder of acceptable memories, dense hands of story thrust out to block his path, to turn him around, seek responsibility from where you came. Dead hands encouraging his southward stride are gone, but he continues south; story cannot touch what he has become. He walks south, past memories no longer lived, past false identities, true identities, past bravery, love, copulation, ritual, joy, betrayal, crimes and miracles unnumbered; past boarders of memory as dense and wild as brambles, tearing flesh to declare their existence, walk where I say; walks into lands where Lebanon has never been heard. Still he walks, walks on water, walks through tsunamis undiscovered, tsunamis never reaching land, into cold no life can bear, into desolation beyond naming, no one there to name; still he walks, arriving again among humans, walking through minor atrocities, through fortitude, into the closing eyes of sleep. Still he walks, arriving at Lebanon from the north, his point complete. To find responsibility, be still. But no one notices; he’s been dead a good long while.


Responsibility suddenly everywhere, always has been everywhere. This the latent meaning of the 9th Amendment, that responsibility, for self and others is diffuse throughout the land:


The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


Law does not absolve us of responsibility. The 9th Amendment is as coercive on the person as is trial by jury in the 6th and 7th Amendments–someone must be a juror. Rights retained by the people, so articulated by the people, so held in trust by the people. Suzuki calls the 9th


elegantly deceptive. It alludes to social contract language where rights are “voluntarily” abandoned to generate social goods. But rights are themselves socially defined. They are “retained” by the people. So they are prior to the Constitution and its Amendments, both historically and legally. The social processes which define rights are prior to the Constitution. Yet Madison’s Federalist rhetoric that “every right implies a remedy” is nowhere to be seen. (Suzuki Confirmation Hearing, Third Session)


           Much of the Suzuki Court’s rights jurisprudence focused on creating a path through which social process produces enforceable rights. The 9th Amendment set the problem; the 10th enables, albeit incompletely, its solution:


The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.


Rights formation, reserved to the people by the 9th, may actualized by the States through the 10th. Arms’ solution is straight forward: rights formally attached to State constitutions become Federal through the Privileges and Immunities Clause. The 9th Amendment is satisfied, simultaneously barring the Court from declaring rights independently–rights “retained by the people” must be declared by them, else the exterior declaring entity may muzzle as it likes. Suzuki’s position on Roe v Wade was not ideological over either reproductive autonomy or protected life, but procedural over the latent protection of unarticulated rights: to protect reproductive choice through Court construction is to quash unarticulated rights through Court inaction. As Suzuki said in his confirmation hearings, Roe v Wade and Casey v Planned Parenthood are procedurally, not substantively, barred by the 9th Amendment (Second Session; see Suzuki, for the Court, Doe v Dawkins). Arms is Court satori, recurring the Court to its initial condition at the Founding: arbitrator, not creator, thus expunging liberty interests and substantive due process. Only judicial satori could recover the 9th Amendment, an abrogation of power to alter the world.


           Responsibility is diffuse, catholic, but never catholicly claimed. Arms is remarkable for employing the ambiguity of “the people” in the 9th Amendment to recover the Independence Era coercive power of the people manifest, yet ephemeral. The people manifest no majority, nor minority. The people manifest a sampling of values derived from social structure. An electorate choosing a governor is not the same people manifest as that deciding a State constitutional amendment, even when on the same ballot. This is not a matter of diverse topical majorities, but (potentially) distinct sampled social structures, readily discerned by imagining a crisis forcing choice between governor and amendment. Neither prior electoral majority may reflect division under such forced choice, yet that division too would be the people manifest.


           A social structure is a distribution on people, inherently exclusionary to some, no more for the good of all than is personal reproduction. People are used by social structure, for maintenance, growth, endurance, replication, just as people use the structures in which they are embedded, no matter how mean their place may be. Majoritarian democracy is a coarse measure of compatibility, or at least tolerance, across social structures, a measure of potential mobilization, violent or nonviolent, eradicating or curtailing some structures to the benefit of others. Majoritarian democracy is more brutal than representative democracy precisely because structures are mobilize directly; representative democracy attenuates direct mobilization by severing representative election from legislative outcome, allowing second order links between structures which might otherwise be forced into contention. The peace produced, warfare by other means, rests on the principle that no victory, in all its particulars, predominates overlong. Representation allows a social structure which might be snuffed in a moment, only to recur later, endure through troubled time, diminishing ancillary costs of destruction and recovery.


           Rights do this as well by checking representative majoritarian victory. Unlike representation, rights are individually based, disassociating themselves from specific social structures. So a right to marry would be indifferent to sexual orientation, that a specific social structure, or to polygamy, polyandry. The privilege to marry is, simultaneously, a quashing of alternative structures. Perhaps no right is completely generous. Even after Copland, sustaining homosexual marriage, marrying a minor is forbidden. Statutory rape, among other things, forbids a social structure, a structure quashed under representative democracy. It is hard to imagine an alteration of prohibited marriage to minors so long as the structure is quashed as criminal. Yet the same would have been said of gay marriage one hundred years ago. And a fissure in the prohibition already exists: some States allow minors of some ages to marry with parental permission, even though sex outside of such marriage is still liable to statutory condemnation as rape. Rights take such fissures and generalize them, destroying the structure which gave protest birth. Such generalization can legitimately be seen as non-human. We know ourselves, and are known, as much by our boundaries as by our expansions. If the prospect of unfettered minor marriage unnerves me as abhorrent, I must give the same to others over miscegenation or gay marriage. Analogy will not remove my own boundaries, but may color contest differently, making opponent, not enemy. We are creatures of profound boundaries. True catholicism is ever isolating for its practitioner. Perhaps the Triumvirate found common ground in that isolation.


           In the case of Copland, generalization was more trepidacious than simple marriage. Copland was not decided as latent right to marry, but as application of the Virginia constitution’s right to pursue safety and happiness (section 1 of Virginia’s Bill of Rights), transported throughout the Union by Arms’ activation of the Federal Constitution’s Privileges and Immunities Clause. Homosexual access to marriage as life instrument flowed from the unregulated state of marriage generally: no extended family restrictions exist on marriage; it is free standing partner choice. Freed from family control, State benefits associated with marriage are free standing. In an atomistic, anonymous, alienating society, marriage is undoubtedly one of the few tools available for the pursuit of safety and happiness. The Court had no choice but to strike down the California constitutional ban on homosexual marriage, not as instanced equal protection, but as Arms access to a Federal Constitutional right among citizens of a State. The State’s purported interest in promoting reproduction, limiting marriage to heterosexuals, fails as a bar when not all married heterosexuals intend to reproduce, with the legal package of marriage otherwise salient to safety and happiness in society. Copland followed because marriage had already become free standing among heterosexuals.


           Copland, of course, was no Court recognition of majority consensus in the nation. As in the seed case in the area, the Vermont Supreme Court’s Baker v Vermont (98-032, 1999), the heterosexual bar fell upon application of a generalized, Independence Era clause. Unlike Baker, Copland rested on what for America is an ancient right, embedded in Section 1 of the Virginia Bill of Rights of 1776. The pursuit of safety and happiness is inalienable; it cannot be trumped in toto by State public safety. Certainly rebelling Virginians did not envision homosexual marriage as a consequence; nor, however, was marriage free standing, autonomous contract as today, being rather embedded in extended family obligation and threat. While common law primogeniture (restricting land inheritance to the eldest son absent a will) was abolished in Independence Virginia, the rule survived elsewhere in the States until the early nineteenth century; other common law mechanisms continued to restrict post-death decisions of descendants even in Virginia. The family was, in many ways, a creature of the State in 1776. Happiness and safety are defined by tools of the day. Marriage could be as much an oppressive, coerced obligation as tool for happiness; so too today, but to much lesser extent. Marriage could be trap for others’ interest; so too today, but, with hope, predominately not, rather bringing relative freedom of economic and social opportunity. Certainly with contemporary near demise of the extended family there are few places of social livelihood apart from marriage. This last drives Copland: modern social isolation absent marriage attaches to the semantics of happiness and safety, irrespective of Independence Era marriage or the social pursuits of that day. A State contract for reproduction might be exclusive to (reproducing) heterosexuals (e.g., a tax credit for birthing), but not so as to exclude homosexuals from other nonreproductive benefits.


           Minority marriage remains forbidden; rights accrue with age, fully expressed at latest when eligible for jury duty. It is precisely because minority marriage is not necessary for the general pursuit of safety and happiness (the bar in any case but a few years of a long future) that the structure may be criminalized under representative democracy. Bar on polygamy, or polyandry, if our minds can stretch so far, however, fails. The Court held in The Polygamy Convictions that safety and happiness are neutral relative to intimate group life; the price of social alienation is State neutrality in recovery. Belief in polygamy, religious or not, might be sufficiently motivating to remove alienation; and, unlike minor marriage, ban on polygamy is unending. A priori, monogamy cannot be privileged. This does not mean the State must treat the outcome of family groupings identically. The State may limit welfare support to, say, two children, even though polygamous families may be expected to have several more, so long as the bar truly affects choice among monogamous families as well (so restriction at eight children would be suspect, as monogamous families seldom reach that count today). Both Copland and Polygamy Convictions rest on autonomous choice in an alienating society. There is wicked, perverse possibility that, in a society with other pathways for social livelihood, these cases might fail. The State, at bottom, does not create the tools of pursuit; the desperate resistence of the family against alienation produced these libertarian decisions. Freedom is always dire necessity.


           Present focus is not, however, on the beatific arcana beloved by the Court, but on the minoritarian creation of rights. And in Copland we spy Suzuki as charlatan. For all his confirmation hearing condemnation of Court usurped rights formation through 14th Amendment Due Process Clause liberty interests, he knew activating the Privileges and Immunities Clause would greatly expand Court articulation of rights, as in Arms, Copland, and Polygamy Convictions. That he formed a Court majority to that end was judicial genius, as was recovery of the 13th Amendment’s “involuntary servitude” in Nonacs v Selton and Doe v Dawkins. Jurisprudence not of paper, but minds. The rights articulation of the Suzuki Court came by releasing the genesis of rights to others. Rights imprisoned in State constitutions for centuries clamored for notice; the Court’s power grew through recognition of independent articulation, the hydra-head people, chorus of a capella inconsistency, inconsistent yet unavoidable in their demand for life. The 9th Amendment, reserving rights “to the people,” is 13th Amendment prohibition of “involuntary servitude” in other form.


           State constitutional rights of personal rather than civil character (e.g., pursuit of safety and happiness vs a majoritarian right to reform the government, both in the Virginia Bill of Rights) could be pled before any court in the nation; litigation exploded, as did anger. Yet anger mollified by the confused possibility of new rights via State constitutional amendments. Latent potential for new rights coalitions bled anger over present Court pronouncements. The horizon, Suzuki’s ever present hope, kept the desire to win all that now is in check–“in check,” an imprecise metaphor for an imprecise result. Democracy came to the Court not as majoritarian reversal but as (somewhat) ratcheted rights expansion. Horizon was appropriated from the Founding, to the horror of self proclaimed originalists.


           The Court made the Founding continuous, a directed God made anew by the people ever fitfully manifest. Not as a nation, but as the respective States. A single State can produce a (Court filtered) Federal right, Texas and New York held atremble to the will of Vermont or Wyoming. And so a kind of solution to the articulation of what perforce will be a minority right. The majority of a single State may declare such a thing. State diversity in social and economic life can make, not always makes, what is a minority elsewhere an ephemeral majority in a single State. Release is possible, not guaranteed. The Court foregoes guaranteed redress to cultivate novelty outside of itself, its satori, calling for responsibility elsewhere. Not much risk given the reservoir of State rights from the Founding and beyond.


           Yes, there is an element of Cabrales’ fractured God in this jurisprudence. The Founding knows not itself, one part transforming the whole. Yet there is a whole, as there is not in fractured monotheism. Cabrales’ full vision found expression elsewhere, in the School Voucher Cases, producing a fracturing of belief which might ascend to an altered Founding, capturing something, something, never more, of ephemeral divinity in the patchwork almost God whose skeleton is the Constitution. After the Suzuki Court, to be American is to be incomplete.

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