On the Suzuki Court

Sides reticulate unendingly. To expect a constitution to

always be on your side is to pray for monstrosity. A

constitution works because failure is passed from person

to person, like the children’s game “hot potato.”

Benjamin Suzuki, First Session

 

There is a place to stand, where the exclusive property

 of being right does not go. I stand there.

Benjamin Suzuki, Fifth Session

 

Second Session

Chairman Allred of Montana, primary interrogator

 

(9th Amendment, Liberty Interests, Free Exercise, Establishment, Oregon Constitution, School Vouchers, Thomas Jefferson, Rights Formation, Faith)

 

Chairman Roy Allred of Montana (Republican): Politics runs both coarse and fine. I’ve dished hefty amounts of coarse onto the plates of others. I wouldn’t be here if I hadn’t. Sometimes that’s the only way people get heard or hear. <pause> I read yesterday’s transcript last night. Some parts several times. You ain’t playing coarse.

 

Suzuki: Senator, if I were, I’d advise you to get rid of me.

 

Allred: There have been great political battles over what the Court has done and might do.

 

Suzuki: Politics is nothing but great battle.

 

Allred: The Culture War has seen the Court take sides.

 

Suzuki: I do not believe the Court can decide Culture Wars.

 

Allred: My thought exactly.

 

Suzuki: Maybe not. The Court should flame those wars to higher pitch.

 

Allred: One thing I learned from yesterday’s transcript: it’s best to ask you for explanations sparingly.

 

<laughter>

 

Allred: And I’m sparing this one.

 

<laughter>

 

Suzuki: Perhaps you should not.

 

Allred: What do you want to say, Judge?

 

Suzuki: A constitution is a frozen war; really, multiple wars, frozen. It is absurd to think its provisions unanimously or even predominately agreed. Democracy operates on the principle that policy may be overturned. Constitutions seem to forbid this. Well, at least the Federal Constitution seems to. But the war does not thereby vanish; it takes other forms. I venture to say your presence here, Senator, is one of those forms. Mine as well. If there is a present constitutional dilemma, I would say it is the mechanism by which culture wars are transformed and directed.

 

Allred: But you say the Court can not decide culture wars.

 

Suzuki: No. But it can channel them. Well, perforce it is going to channel them anyway. I think it should do so with more self awareness.

 

Allred: I am not interested in abstract discussion of the interplay of values. I am interested in my values, the ones that placed me in this seat.

 

Suzuki: I know.

 

Allred: There has been erosion of the family in this country for decades. The values which sustain us through life have been attacked by the Court too long.

 

Suzuki: Values are always, everywhere eroded. There has never been a record of history showing otherwise. But values are also ever being regenerated. So your presence here, Senator.

 

Allred: Judge, your appellate opinion sustains family values by recognizing the crucial importance of religion in raising children.

 

Suzuki: In outcome, at present it does. But I also said that the proscription against funding religious institutions could recur. Compatibility in outcome is not compatibility in principle. What I can affirm is that the opinion rests on the notion of enlivened parenthood.

 

Allred: What if the only way to–enliven–parenthood is through religious choice?

 

Suzuki: If secular alternatives did poorly in the voucher marketplace because of this, the religion prohibition would remain annulled via the logic discussed yesterday. If such alternatives flourished nonetheless, we would have a problem. The Oregon constitution would be in crisis. At the State level, the only remedy would be constitutional amendment.

 

Allred: At the State level?

 

Suzuki: Absent Federal jurisprudence.

 

Allred: Would there be such Federal intervention?

 

Suzuki: I have no idea.

 

Allred: Nine minds?

 

Suzuki: Yes, nine minds.

 

Allred: Would you say that among the unenumerated rights assured by the 9th Amendment are those of the family?

 

Suzuki: The family propels so much of the lives of so many it would seem strange to say otherwise. But I cannot enumerate a right alone. That is our present dilemma.

 

Allred: Again, nine minds.

 

Suzuki: Yes.

 

Allred: Could you at least affirm them as natural rights?

 

Suzuki: Claims of natural right come before the courts. To affirm such a right, courts must have a process for doing so. We seem not to have such a process. I may personally affirm the right yet be powerless. I believe Justice Scalia made this point in a concurrence.

 

Allred: Even so, Judge: do you believe family rights are natural rights?

 

Suzuki: In some sense, yes. The measure of a right is the pain produced when absent. There must be some sense in which the production of families is a natural right.

 

Allred: <pause> Judge, do you like the moribund state of the 9th Amendment?

 

Suzuki: No, I do not. The 9th Amendment was an important innovation of its day. It cannot have meant simply that the Constitution could be amended to include more rights; an amendment process was already present in the document proper. It is not in the Virginia Bill of Rights; nor in the Northwest Ordinance’s listing of rights. It would seem to mean, at least, that action under the Constitution cannot deny rights asserted at the State level; of course, this was before the 14th Amendment. I think we have perhaps lost something profound by not knowing what to do with the 9th.

 

Allred: Do you think the Court has violated the 9th Amendment?

 

Suzuki: Yes, most likely.

 

Allred: Where?

 

Suzuki: Overturning family visitation laws. And in the right to die. I should say it is not the outcome I consider a violation; that is a substantive matter. I think the 9th bars hearing these cases, at least for the moment.

 

Allred: At least for the moment.

 

Suzuki: Yes.

 

Allred: Such cases are heard based on a claim of liberty interest, aren’t they?

 

Suzuki: Liberty interests are unbounded. They can admit anything. They are barred by the 9th Amendment, in my view.

 

Allred: Now Casey v Planned Parenthood is based on liberty interest in reproductive autonomy. Are you saying that the so called right to an abortion is barred by the 9th Amendment?

 

Suzuki: No. The present construction of the right is barred by the 9th Amendment; it is stopped procedurally.

 

Allred: At least for the moment, hey Judge?

 

Suzuki: At least for the moment.

 

Allred: And what about intimate association? Isn’t that a liberty interest?

 

Suzuki: At present, yes.

 

Allred: So, in your view, prohibiting sodomy is constitutional?

 

Suzuki: I would point out that Justice Thomas, dissenting in Lawrence v Texas, termed such laws “extremely silly.”

 

Allred: Even so, one can not sustain intimate association as a liberty interest?

 

Suzuki: I could not.

 

Allred: At least for the moment.

 

Suzuki: Not now, no.

 

<pause>

 

Allred: Do you see the twinkle in my eye, Judge Suzuki? You see, I think you like these rulings, but can’t get to them. I think you’ve trapped yourself. I think you’re on my side and don’t want to be.

 

Suzuki: <pause> At least for the moment.

 

Allred: <pause> Should I risk you, Benjamin Suzuki?

 

Suzuki: Risk your certainty.

 

Allred: Sir?

 

Suzuki: Yours is a certain world. You see thought progressing. If you are correct, what can I be but an ally, as you have said.

 

Allred: And if not?

 

Suzuki: I cannot say. I do not know.

 

Allred: If my world is certain, what is yours?

 

Suzuki: A judge transverses worlds, Senator.

 

Allred: There is one world.

 

Suzuki: Yes. Always, everywhere, one world is seen. <pause> But I am not certain our difference is so great. You are a Christian?

 

Allred: Yes.

 

Suzuki: Yours is a personal relationship with God.

 

Allred: Yes.

 

Suzuki: “Personal” is a unique world; there are countless such in your faith. Senator, I beg you to consider the terrible difference of worlds, even within your faith.

 

Allred: Yes, the Holy Spirit produces diverse churches. But there are moral absolutes.

 

Suzuki: Without absolutes there is no world.

 

Allred: Now that we have gone through an episode of “Kung Fu,” I ask you again: what is your world?

 

Suzuki: There is a saying from the tradition of my ancestors. I am Japanese-American, you know.

 

<laughter>

 

Allred: Yes, someone told me.

 

<laughter>

 

<Suzuki pulls a notebook from an inner jacket pocket>

 

Suzuki: It’s from a man named Dōgon. He lived in the 13th century and wrote profusely.  No one cared.  Here:

 

There is no bird who flies knowing the limit of the sky. There is no fish who swims knowing the end of the ocean.

 

That is my world as judge. It is, I humbly assert, also the world of the Christian. It is also the world of the parent. Anywhere there is growth, this is the world.

 

Allred: Such liberalism gives a warm, cozy feeling. But as a parent I tell you its implicit libertine world harms my children. Their tools for a successful life are corrupted. When you act and I see it, I and those with less sophistication than I, are affected. It is simply not true that the corruption will not spread.

 

Suzuki: You are correct, I think. But it is also true that new tools will spread, and present ones grow.

 

Allred: The tools of social life are clear.

 

Suzuki: For you. There is a story from the tradition of my ancestors, if I may.

 

Allred: Go ahead.

 

Suzuki: A man went to two masters. After speaking with the first, he went to the second, vexed at what he had heard. The second asked the man what the first had said. The man replied, “He said that there wasn’t a single thing.” The second master asked, “Do you have a wife and children.” “Yes.” “Did the first master have a family?” “No.” “Then its ok for him to say there isn’t a single thing.”

 

The tools of social life are contingent on circumstance and obligation. You say a facial neutrality on tools not directly harming others is inadequate. I do not believe this is the core complaint. I believe the complaint lies in not being able to use the tools you have. You see the State as interfering in the direct upbringing of your children rather than just allowing cultural input you define as disruptive. Relieving the first complaint should allow you to defend your family against such cultural input without removing the source. If your defense is inadequate, that is a bias against your social tools in the cultural marketplace. The voided appellate opinion discussed yesterday was an attempt to enable full implementation of those tools.

 

Allred: But you admitted that there were conditions where a prohibition against religious vouchers could recur.

 

Suzuki: Under the Oregon constitution, yes. As I have said, a constitution does not guarantee favored results. If that cul-de-sac occurred, a State constitutional amendment, no more than a plebiscite, would remove the problem. And, as noted earlier, the less correct your view of the singular importance of religion, the more likely the Oregon constitutional ban would recur. So support of this constitutional path for vouchers would require, on your part, faith.

 

<pause>

 

Allred: You know, Judge, talking to you is like talking to an–honest–political consultant of one’s enemy.

 

<laughter>

 

Allred: Didn’t they coach–er, brief–you before these hearings?

 

Suzuki: Well, for two hours. Then they stopped.

 

Allred: Pretty short preparation.

 

Suzuki: I found the process mysterious.

 

<laughter>

 

Allred: Let’s see if I can play this constitutional game. Suppose everyone opted for sectarian schools, so the present public school system collapsed. Would that violate the First Amendment’s prohibition on Establishment?

 

Suzuki: Establishment exists when at least one individual is forced into unwanted worship. Under your strict hypothesis, no. In a more realistic world where secularists or various religious dissenters exist but are unable to form a school–Establishment would exist. Combining the Oregon and Federal constitutions, you should want a healthy frequency of sectarian private schools, but a sufficient number of secular alternatives to accommodate dissent. Religion must do well but not too well.

 

Allred: What about dissent among secularists?

 

Suzuki: Secularists are not guaranteed places of common belief, only freedom from religious worship. If there are sufficient secular schools, of whatever kind, to accommodate this population, they cannot challenge the system. Presumably the voucher marketplace would generate diversity reflecting major secular interests.

 

Allred: Let’s see if I got this right. You say liberty interests are constitutionally ungrounded.

 

Suzuki: Yes, the personal choice pivoting the O’Connor Juncture is ungrounded, at present.

 

Allred: “At present” you say. I’m not going there, Suzuki. I suspect you wouldn’t take me there anyhow. Now. Even though liberty interests are ungrounded, this is not, you say, the core grievance of those I represent. The real grievance is the State’s bar on teaching our children our values.

 

Suzuki: The public school system has truncated parental control of children. Common schooling forces a kind of cultural neutrality on many intimate ethical issues often, but not exclusively, associated with religion; issues deemed essential, in the minds of parents, for a successful life. Various media inundate with images parents would forbid. Realistically, these images can be blocked only by internal values which, the parents see, public schools refuse to address; worse, the cultural tolerance required in a diverse school population seems actively hostile to the value filter many parents would impose. Crippled by the State, these parents assail the origin of endangering images. Even when successful, direct parental control of children remains truncated. I believe Justice O’Connor was right in asserting the controlling interest should be parental choice, and I believe such choice can be sustained without evoking the liberty interest of the O’Connor Juncture.

 

Allred: I must reiterate: this libertarian view, which you admit you cannot reach, sustains cultural harm.

 

Suzuki: Senator, dissent does not dissipate when repressed. It is the essence of life to diversify. Your faith would have trial, as faith always must. Your trials, your efforts at common belief, would be protected. I advocate–in your defense–protected group formation for mutual belief and support. You should have opportunity for tribulation. A form of competition would exist. You could change the cultural landscape by succeeding. But direct repression of others would, in most cases, be barred.

 

Allred: <pause> Strange you should spend so much time on something you cannot reach.

 

Suzuki: I have had much practice in this.

 

<laughter>

 

Allred: Judge, you advocate a kind of spiritual neutrality which many of faith might find actively harmful. Murder is a sin damaging the perpetrator. Preventing the act through incarceration helps him. If homosexuality is a sin, why not legislate similarly?

 

Suzuki: The answer is old. You know it. Murder harms the victim. Consensual homosexuality does not; no self proclaimed victim exists. If the sole reason for banning homosexuality is based on a religious text, it constitutes Establishment and is barred.

 

Allred: Is that the sole reason for banning homosexual behavior?

 

Suzuki: Not under current constitutional construction.

 

Allred: Not at the moment, hey Judge?

 

Suzuki: Yes.

 

Allred: All sorts of people are going to hate you.

 

<silence>

 

Allred: You know, Judge, I don’t think many people around 1789 would have agreed with your use of Establishment.

 

Suzuki: I agree. Establishment was meant to prevent one Christian church from enjoying more favor than another. Free Exercise was meant to allow new churches to emerge and flourish. During his Presidency, Madison vetoed a bill which would have reserved land for construction of a church in the west–I think in Kentucky. His veto message cited Establishment. The church would have a single pastor of one domination. But members of other denominations might live in the locale. Federal funding, favoring one denomination over another, constitutes Establishment. But this is far from asserting the Bible could not be used to foundationally motivate law. Jefferson’s insistence that Christianity was not part of the common law suggests many thought otherwise, for example.

 

Allred: Jefferson was an anomaly.

 

Suzuki: Yes, I would agree.

 

Allred: Then how can you alter the use of Establishment now?

 

Suzuki: Abstractly, the use is the same. Christianity can no longer claim unique status as organized faith. To use the Bible as primary motivation for law would act as Establishment against other faiths. The principle is the same as in 1789, but shifts in result with the changing social world.

 

Allred: “The living Constitution,” hey Judge?

 

Suzuki: Not as you likely mean, no. The principle is the same as 1789. One does not even have to consider secularists who adhere solely to science. 1789 could not foresee local pockets of Islam, Buddhism, or Mormonism. But local pockets of dominating faiths existed in 1789, so the structure is the same. Now these pockets are not all Christian. Those who assert this use of Establishment is anti-religion are incorrect. It is, rather, pro-faith. Establishment enables Free Exercise; it recognizes the soft, quiet voice of faith. It is itself a faith: a faith that, left unhampered, faith shall arise on its own.

 

Allred: You’re telling me this use of Establishment, denying the Bible privileged status, is happenstance, an oversight due to omitting the word “Christian” or some such, even though it was likely universally presumed.

 

Suzuki: Not universally, but more than widely. Even more than today people restrained their voices.

 

Allred: Is your voice restrained, Benjamin Suzuki?

 

Suzuki: Save for the future construction of jurisprudence with my colleagues, if this body so approves, I try to speak without restraint.

 

Allred: Then answer the question. Is the omission of a word culturally assumed so crucial? You built an entire theory of “involuntary servitude” through historical context.

 

Suzuki: I think the cases rather similar. In both the use of words is discerned through historical context–an empirical matter. For example, although I focused on government enforcement of debt when discussing involuntary servitude, militia mobilization provides another example. During the French and Indian War militias sometimes disbanded themselves when asked to travel far from home. They had obligations of farm and family and would not be too long from them. They viewed British orders to march afar as a form of conscription or servitude beyond the community obligation of protective localism. The free labor of household farming was imperiled by Crown augmentation of local obligation, similar to the incremental creation of apparently unending debt payment which was indirectly enforced by the State. Similarly, during the Independence War, militias augmenting the Continental Army might vanish or become sparse as harvest or sowing approached. The principle of free labor/servitude was applied in several contexts, always focusing on State enforcement of the denial of livelihood and improvement.

 

Allred: Since I like where that goes, I’m not going to pick at it. But it seems to me that as “free labor” is the constant background of involuntary servitude, just as “Christianity” is the constant background of Establishment.

 

Suzuki: Then I assert free labor support for vouchers fails. At Oregon Statehood in 1858 classroom education was not essential for future livelihood and improvement. Now it is. The context of free labor has shifted. So too the context of religion has shifted for Establishment.

 

Allred: Trickster Suzuki. You claim Establishment prevents use of the Bible to justify legislation, but would allow voucher–tax money–for religious schools.

 

Suzuki: The first prevents the privileging of a single religious text, of any faith. The second enables multiple faiths, Christian, non-Christian, secular. Their social outcomes are similar, one acting to bar, the other to encourage. I should point out, however, that while the Establishment bar is absolute, permissible vouchers are contingent. If religion does not enable the educational life of families, vouchers are barred. If the public school system seemed to be performing adequately, again such vouchers would be barred. Under the logic I presented last session, vouchers for sectarian schools are an empirical solution to an empirical problem, supported, perhaps only temporarily, by a constitutional principle neutral to what we generally call religious faith.

 

Allred: <pause> Sometimes I think you want me to vote against you, Judge Suzuki.

 

Suzuki: If your belief in the importance of religion is correct, you would have much of what you want. But nowhere is my view law.

 

Allred: <laughs> So I should “risk my certainty”–your phrase–for something that in any case may never be.

 

Suzuki: I can do nothing more than sit before you.

 

<pause>

 

Allred: So. You say you embrace original intent but there is more than one original intent. And your original intent changes the law over time. Sounds a lot like judicial fiat and the living constitution to me.

 

Suzuki: Intent is not an outcome but a process, or rather the engine of process. I have tried to show how the intent I evoke was present during the Independence Era and Founding. I suggest those who advocate the outcomes of that period as a fixed constitutional state are not interested in original intent at all. <holds up his pocket notebook> May I read a quote?

 

Allred: It’s your hearing.

 

Suzuki: This is from Jefferson, 1816:

 Some men look at constitutions with sanctimonious reverence, and deem them like the Arc of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well; I belonged to it, and labored with it … I am certainly not an advocate for frequent and untired changes in laws and constitutions …[But] laws and institutions must go hand in hand with the progress of the human mind…as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors …Let us [not] weakly believe that one generation is not as capable as another of taking care of itself.

 I would say that Jefferson was rather hard on those “barbarous ancestors” of which he was one. I believe original intent, some of the ideology motivating Independence, allows much of the change he sees as consequent of social evolution.

 

Allred: But not all?

 

Suzuki: Probably not. But jurisprudence is undefined until the reality of the case appears.

 

Allred: <pause> Jefferson was an anomaly.

 

Suzuki: Yes, and still is. Maybe not so anomalous as President, though.

 

Allred: Judge, there’s something strange in your logic. At first you seem all for the individual, the struggling faith, the parents chained to a school doing their children an injustice. Then–poof!–religious vouchers might not be possible later on. Schools, successful schools, might see their clientele vanish, through no fault of their own. There is no justice in that.

 

Suzuki: I know. Constitutional process is not always just in outcome. Principles are not people. Consider Establishment in the Independence Era.  A new denomination asks for support. It has struggled to gain sufficient adherents to be eligible for State support. But this grant will harm previously Established denominations; the tax base must be shared over more churches, and some adherents of prior denominations may now be more inclined to switch allegiance to the newly Established. Both Establishment and its prohibition harm. It is not clear to me that, at the Founding, the greatest number benefitted from prohibition. What is clear is that fledgling belief benefitted. Senator, your own faith is a descendent of those fledglings.

 

Allred: This doesn’t wash, Suzuki. Under your logic religious vouchers might be denied when sectarian schools are a minority of private schools. You would harm the minority when at its weakest.

 

Suzuki: Yes, this can arise because of the religious funding prohibition in the Oregon constitution. At some point servitude is removed through diverse choice. Diverse choice is not complete choice. This is true both for secular and religious parents.

 

Allred: Even if, for some, only a religious institution will do?

 

Suzuki: Measured choice through State support will always stop at some coarse grain. I can not hold that without grain fine enough to capture every heart nothing can be done. Servitude is a matter of degree, and some relief may be possible without complete elimination. There is always relief through State constitutional amendment.

 

Allred: You expect a majority to approve, by plebiscite, the wish of a religious minority?

 

Suzuki: Senator, you have identified the core dilemma of rights formation: how to articulate and confirm a right which only a minority feel compelling–which only a minority may truly feel at all. During the O’Connor Juncture the Court held that a consensus had emerged across the States that executing the retarded was cruel and unusual under the Eighth Amendment. A consensus measure does not stop a majority from acting against a minority. It stops a minority from punishing beyond the ethic of the majority. This is hardly a right. If the majority consensus collapses, so does the right. The measure requires a majority of States, perhaps a supramajority depending on the definition of consensus, to more or less independently recognize the right. A minority confronts numerous majorities before Federal right is expanded. This fails to capture the essence of a right as bar against State control. We have no way to manifest a minority to either proclaim or extend a right.

 

Allred: So we end up with equity jurisprudence. The conscience of the judge.

 

Suzuki: Which has given us the perception of judicial fiat with growing opposition.

 

Allred: We started your hearing with this point, but not so head on. You haven’t offered a solution to what you call rights formation.

 

Suzuki: No.

 

Allred: If I understand you–and I’m not certain it’s a good thing if I do–you’re saying that the words of the Oregon constitution, even in your historical interpretation, will not treat people as just people. That the words might force us at some point to allow a thriving sectarian school to fail.

 

Suzuki: No closed document will always treat people as people. It is the unavoidable hubris of jurisprudence to see the lives of people in ways they themselves do not. They are then in jeopardy of being sacrificed to principle. Consider bankruptcy law. I can imagine a man so self-assured as to risk perpetual debt to achieve greatness. A creditor might be willing to loan what he needs under such assurance, but not otherwise. I can even imagine that this man’s success might greatly benefit society. Under bankruptcy law this success is barred.

 

Allred: So the greatest good for the greatest number might actually require the possibility of perpetual debt–of involuntary servitude.

 

Suzuki: It is not impossible. What is clear is that bankruptcy law does not treat every individual as individual; it cannot. The bar against perpetual debt is to forbid its misuse, and to bar the hierarchy which might thereby result. The failure of my imagined risk taker is a bit like the failure of a thriving sectarian school once vouchers are removed. In both cases, principle sacrifices people. This is unavoidable under any constitution; I must endeavor to remember it is recurrently so.

 

Allred: With both vouchers and bankruptcy you start with opportunity. But to preserve opportunity you quash the opportunity of others.

 

Suzuki: Not quite the same. The Oregon bar on funding religious institutions creates the voucher case. At the Federal level, I do not believe the bar would necessarily stem from Establishment, although final analysis must be case driven. You are correct in the debt case.

 

Allred: Is the debt case a matter of democracy? More benefit from bankruptcy than not?

 

Suzuki: What initiates a law need not sustain it. I do not think bankruptcy is sustained by the greatest good for the greatest number; or, more weakly, by mass democracy as such. I believe it rather a strategic loss by the advantaged to avoid structured or correlated failure in others. Correlated failure produces correlated protest, the costs of which can be greater than those endured by creditors under bankruptcy. It may be that bankruptcy is sustained or endured to avoid waves of mass democracy.

 

Allred: <pause> Do you want to be confirmed?–I know, I know, “I sit before you.”

 

Suzuki: I do.

 

Allred: Judge, I have assistants scurrying about, highlighting your words almost as they are spoken. Then they scribble instant analyses on bits of paper which are handed to me. Most of these make no sense at all. Of course, what can you expect from a bit of paper? But here’s one. It says you view closed documents as ultimately damaging to people. The Constitution is a closed document.

 

Suzuki: Your scribbler is worth having. The tension in constitutional thought over the last three decades plus arises from treating a closed document as if it were open. The document was meant to be open, at least in the view of originally ratifying States which rapidly adopted the Ninth and Tenth Amendments. But these were intentionally ambiguous. Implementation has eluded us. We have been blocked for over two hundred years.

 

<long pause>

 

Allred: Now, I could ask you about this. We would no doubt be here a good long time. Or I could refrain and let my colleagues decide to draw you out. Or they could refrain and let you, if so fortunate, battle it out with your colleagues on the Bench. Course, you might say something about nine minds and so say nothing at all.

 

Suzuki: I might.

 

<pause>

 

Allred: Benjamin Suzuki. You asked me to risk my certainty. What about yours?

 

Suzuki: Senator?

 

Allred: Let’s work with just Federal Establishment, not the Oregon constitution. Suppose we had a voucher only system; no public schools as we know them now. And suppose the marketplace of vouchers sustains only sectarian schools. Secular schools always fail–of their own accord. Seems to me this would show, under this hypothetical, that sectarians know something secularists do not.

 

Suzuki: Senator?

 

Allred: Ah. A confused Suzuki. A rare beast. Well, under our hypothetical, sectarians must know how to motivate kids, how to please parents. Now, would this situation violate Establishment? Just to avoid fudging, let’s make all the successful schools Christian schools. Surely this state of affairs would not be Establishment in the sense of, say, colonial Virginia?

 

Suzuki: Actually, there is a similarity, albeit a mild one.

 

Allred: Ah. A mild one.

 

Suzuki: Yes. Denominations compete for vouchers; in colonial Virginia, denominations competed for attention in the legislative assembly. In both cases, State support through taxation is the issue. If anything, the voucher case is worse, as parents must, by law, educate their children, which, in your story, means placing them in a viable sectarian school. In Virginia one could worship in any case–or not. But there was a social price for failing to publically worship. An ostracism, somewhat. Fewer opportunities, economic, social, or credit. So the difference between mandatory education and colonial worship is not as great as might appear.

 

But your focus is on the absence of secular support in vouchers, which has no parallel in colonial Virginia. So I guess we can assume all religious parents are satisfied by available schools.

 

Allred: Let’s do.

 

Suzuki: And we have to assume there are some secular parents out there, to have a substantive conclusion.

 

Allred: Yes.

 

Suzuki: <pause> I think the word “religious” is too often limited. I would say that the behavior of scientists can seem religious, in so far as they have a faith in views beyond present testing. But a believer in Christ would not say so. Perhaps because, to the outsider, these faiths provide the same strength for survival and growth, they are blind to one another. Let’s take the minority side in your story, the secularists. The voucher system has excluded them, which violates Establishment. The unique mention of religion places a unique burden upon it. But a simple solution may exist. Subsidize a few secular schools, as long as there are secularists who want them. In your story, religion would still abound.

 

Allred: As I thought, Suzuki. You will not risk your certainty. If religion was such a dire minority you would do nothing. But secularists, so situated, well, they must be subsidized! You will not risk full loss; that’s dishonest.

 

Suzuki: <pause> Colonial Establishment upped the price of social exclusion from Established denominations. Tax endowments helped extend their network of churches, which extended socio-economic opportunity for its members. There is a mild similarity between being of a non-Established faith and being a secularist forced, by the voucher marketplace, to place one’s child in a school practicing a faith disbelieved.

 

But I cannot make too much of this, as I have already admitted that any voucher system will be coarse grained in fitting beliefs to parents. So: You are right. The secularist is privileged. He does not risk his certainty in market with as much hazard as the sectarian. The bias is built into the Constitution–which, in any case, was not designed to deal with education. Is this dishonest? I would say it’s a lucky break for secularists, no more.

 

Allred: Was such a bias meant to be there in 1789?

 

Suzuki: A bias which forced the subsidization of private, secular schools? Of course not, Senator. Precluding or removing Establishment certainly harmed some people. But those relatively excluded were given new opportunity to associate in consequence. Vouchers are presupposed on an inadequate mandatory school system. Most students, presumably, do better or at least as well. Around 1789, precluding Establishment gave a bit of a free ride to secularists. They were not the target; minority or diverse Christian faiths were. The unanticipated development of a voucher marketplace through modern communication and transport, coupled with mandatory education, leads to the secularist bias.

 

Allred: Not intended at the ratification of the First Amendment.

 

Suzuki: Not intended. We can ground words in their historical place. But we cannot forbid conclusions then derived from these words when applied to unforeseen circumstance. This would contradict the generalist wording of the Constitution.

 

Opponents of the 1970’s Equal Rights Amendment feared its words might be used in unintended ways. Well, novel circumstance employing words in their intended ways is also with hazard. It is a hazard at risk in the constitutional process itself; a hazard of all culture when teaching children who grow elsewhere beyond their parents. And perhaps a hazard of special note in a nation of immigrants, where cultures confront.

 

Allred: So, you admit dishonesty, in that you will not risk the same as you demand of me, claiming constitutional protection instead.

 

Suzuki: I might not claim myself a secularist in the sense you mean. But yes, I believe the Constitution would protect that kind of smug dishonesty concerning the courage of faith. <pause> Senator, may I indulge a speculation?

 

Allred: I am dumbfounded, Judge. If this is to be something new, what have you been doing these past two days?

 

<laughter>

 

Suzuki: Ah. You have uncovered the truth about jurisprudence. This is why we need judicial supremacy.

 

Allred: I’m not going to laugh at that one, Suzuki. Go ahead.

 

Suzuki: Free speech insures a hearing for one’s enemies. That assurance can be dung for the growth of enemies. Those few words in the First Amendment have become a social engine for the production of novelty. New enemies, new me–for I become something different in the confrontation. Your hypothetical on vouchers leads me to conclude that Establishment would–in that case–require the subsidization of some secular schools, given that such always fail in market. I understand your irritation with this. But consider that it produces a never-ending challenge to religious faith. Accepting this conclusion from Establishment, faith accepts unending challenge. And this, I submit, is what truly faith is. In outcome, faiths can be expected to evolve in response to novel challenge.

 

Allred: True faith is what it is, eternally.

 

Suzuki: Then perhaps I could say instead that faith is increasingly revealed through novel challenge.

 

Allred: Yes, I have seen that.

 

Suzuki: So, while the conclusion reached in your hypothetical is bitter, it may actually be an engine for the greater revelation of faith.

 

Allred: <pause> Judge Suzuki, have you considered sales as a career?

 

<laughter>

 

Allred: Judge, there is force in what you say. I do not like the prospect of always having the excluded among us. But it has always been so. And those refusing belief have stimulated others in faith; I have seen it.

 

Suzuki: Senator, I venture that those of other faiths may not truly be so; that, by confronting in difference, a mutual, internal articulation may move us toward–not to–the same end. Diversity may be the mechanism by which faith comes revealed.

 

Allred: Don’t think a suicide bomber is going to be impressed by that.

 

Suzuki: No.

 

Allred: Judge, I’m not wanting to sell you short. I hear you. But let’s not forget where we sit. Some people will do things we won’t.

 

Suzuki: Yes, many people. And that includes you and I, each a funhouse mirror for the other. If faith unfolds through diverse encounter, our paths will not be linear. We will be repulsed by different things, we will reply to the world differently. It is a great wonder to think such diverse response might converge even in the moment.

 

<pause>

 

Allred: Judge, this is feel good stuff. We say we are all one and then go out there and get our teeth kicked in. Or kick someone else’s in. Sometimes it’s hard to tell which, from the outside. I’m part of this Resurgence. I’ve decided to be–who I’ll protect, who I’ll fight. I’m here to decide whether I can use you. I’m not here to feel good with you.

 

Suzuki: It is in the false enclave of such good feeling that rapprochement begins. Such self deceit lets us explore our faith. Senator, this is a country of forced novelty. Through Free Exercise, through Establishment, through Free Speech, through our sciences, through our businesses of instantaneous value, through immigration, immigration we know will flood regardless of what we do. All of this ferments struggle. Personal struggle. Struggle within groups. Struggle between groups, convincing one another that each is the root cause of distress. Jurisprudence must recognize the inevitability of this novelty. It must try to protect those desperate not to be alone in this struggle. It must recognize that in struggle we may lash out. A grounding principle of our law is that those who struggle are usually incapable of resolving the struggles of others. What we cannot resolve invites a quashing hand. Will this be useful to you, Senator?

 

Allred: Suzuki, you are dead wrong. My faith says you are wrong. My experience says you are wrong. This is the kind of arrogance I have always fought.

 

<pause>

 

Suzuki: You are right. It was an abusive thought. I would retreat into the word “others.” I would say all struggles have an other they cannot approach.

 

Allred: Judge, I would not be so arrogant as to exclude salvation, material or spiritual, from anyone.

 

Suzuki: I did not say that, Senator. Nor would I. But when my salvation lies in the salvation of others, an unapproachable other, a reaction to my very wish for them, often results.

 

Allred: Happiness is no burden.

 

Suzuki: I wish that were always true, Senator. I wish that were always true.

 

Allred: Well, I guess one can be happy in a lie. But the truth embraces–or maybe can embrace is better–everyone.

 

Suzuki: The truth embraces its own dissent.

 

Allred: Well, that’s right. No one is excluded for their errors, if they will see.

 

Suzuki: That is not what I meant.

 

<pause>

 

Allred: Are you useful to me, Suzuki? Will you respect those who struggle in faith to live?

 

Suzuki: I have said nothing else. I cannot always claim understanding. I can strive for respect.

 

Allred: I’ll tell you what respect is: sometimes you have to choose.

 

Suzuki: Yes. To live is to choose.

 

Allred: Well said. <pause> I’ve squeezed another session dry I see. My colleagues are glaring bleary eyed. Which is quite a feet. Don’t know who deserves greater congratulations–me for prodding them to the heights or they for being there. Well, I think that put me over the line. Yep. I plead fatigue, too. Ok, next session we turn to the other aisle. Senator Seger of Minnesota will begin.

 

<pause> Benjamin Suzuki. Do you want my vote?

 

Suzuki: <pause> Anything I say to that end should be a mark against me in the eyes of those who voted for you in common belief. My written opinions are the only sure measure. What I say now is not binding.

 

Allred: Judge, I had to ask for votes to get where I am. That is the voice of the people.

 

Suzuki: I know.

 

Allred: Judge, are you above the people?

 

Suzuki: <pause> I am before you now. As are my written opinions. But Senator, those opinions are what they are because I had colleagues on the bench. Exactly where I am, what I am, without that is immeasurable, to me as well as you.

 

Allred: Dance like a butterfly. I suspect you can sting like a bee, when provoked. But what provokes you? <pause> Without objection we’ll adjourn. Done.