The State and Purpose of Our U.S. Constitution

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When I, as an attorney, argue a case, I harbor the belief that justice will result. This hope is fueled by the belief that there will be a pull by the trier-of-fact toward a higher order.

In the case of the American justice system, the higher order is reflected in the language of the Constitution. Further, the trier-of-fact’s pull toward the higher order can only be had through a tension existing between the conduct that gave rise to the litigation and the law which applies when a given state of events is proved. The law itself is a reflection of the higher order of the Constitution.

In fact, our system of advocacy relies on a balanced tension designed to generate justice. Each side has a story to tell, both sides are presented and, from the tension between the sides, comes justice. The concept of justice can be viewed as resulting from a mini-noetic experience if you will — the mechanics are the same. It is or should be reflective of a higher calling toward Reason.

In his analysis of the experience of Reason, in the classical sense, philosopher Eric Voegelin instructs us that “Reason” is not to be taken as referring to `reason as mere logic or logical constructs’. Instead, we are provided with “Reason” as a human experiential event, an ever present “constituent of humanity” and as a “source of order in the psyche of man.” This experience is akin to the religious experiences that I have described in earlier chapters.

Quite optimistically and with an air of sincere hope, Voegelin seems to see man as being able to actually experience divinity and begin to articulate his encounter with it. This experience, is one that comes from the illumination and presencing of both: a.) the disorder which constitutes man’s limited spatio-temporal material existence, and; b.) that which causes man to be a questioning being containing the divine within him.

In the thoughts that follow, I use Voegelin’s representation of Reason as a paradigm for the workings of American jurisprudence — a jurisprudence resulting from the enactment and enforcement of the United States Constitution.

Particularly, I believe that the development of the Constitution was a manifestation of America’s pull toward the Divine and was reflective of the experience of Reason which arose from the disorder of Pre-Revolutionary experience. Further, I believe that the development of the Constitution was an experience of the Divine in early America and not a mere recital of ideas and concepts that might prove useful in the governance of human affairs in the eighteenth century and beyond. Lastly, I feel that we are in desperate need of a re-experiencing that `pull toward divinity’ which gave rise to the philosophical/legal articulation of our Founding Fathers and which led them to enact the Constitution.

In our current state of American existence, it seems that we are in a pull toward the passions of our current human socioeconomic existence and have seemingly lost sight of the divinity in us — a divinity that allowed America to arise out of the disorder that gave rise to its creation as a unique and separate sovereign in a world of disorder. Indeed, I think that our pull toward the darker elements of American humanity amounts to an outright rejection of the Divinity which inspired the Declaration of Independence, Constitution and our general freedom.

A General Overview of The
Experience of Reason & The Coming
of the United States Constitution

Inasmuch as the Greeks were, in finding Reason, “engaged in an act of resistance against the personal and social disorder of their age,” so were the Founding Fathers of our country.

Instead of the Greek philosophers’ Reason, the Founding Fathers articulated the experience of divinity reflected in the language of the Constitution. For America, the Constitutional inspiration became an identifiable experience of reality and the “cognitively luminous force” which allowed resistance against the tyranny and disorder of English rule and allowed the founding of a new democracy in the world.

The human course of events and experience leading up to the Constitution allowed Americans to “recognize the phenomena of disorder” that prevailed over early America, as did the Reason of the Greeks allowed a guiding luminosity for their disordered society. By reflection on the experience that gave rise to the articulations set forth in the Constitution, Americans came to have a guiding force by which they could direct the higher voice of Reason through their unique cultural experiences. This force was a force within them and a force that created them.

Voegelin’s notion of Reason is founded on the essential claim that `experiences create concepts’. In the case of the Constitution, it also seems that the American experience of the 18th century created what would become constitutional concepts. However, the experience was only a medium through which the Constitution could come to be a representation of the higher order that gave rise to its possibility as a living documentation of man’s contact with higher/divine order.

America could only reach above and beyond its oppression to higher ideals of freedom and governance. The source of such higher order could not come from the passions or disorder of the time but could only be recognized as coming from that which allows for us to have a sense of higher order and civility even if the same is not present in our experience of a given time. It was a `moving toward’ the higher order as something separate and apart from that which merely `was’ at the time.

As was the Greeks’ Reason, so too was the ratification of the Constitution an epochal event in world history. This was an experiential event born out of a hypersensitivity and pull to thinking about what ideal rights or God-given rights should be afforded to a citizenry. These higher ideals or rights were not in place or being experienced at the time. The perceived rights themselves did not find themselves or inhere, per se’, in the realm of experience until the disorder of the time was transcended.

The Constitution was a human historical event brought about through human conduct and reaction to such conduct.

The Constitution became no mere recital of the logical or necessary constructs which might be placed on a society in order to have it surface from the apeironic depths of tyranny and political disorder. As shown below, the enactment of the Constitution was, seemingly, just as much an acknowledgment of the divine in us and which created us as was Voegelin’s account of the Greek experience of Reason as a fundamental constituent of humanity.

The Constitution, as a written instrument of communication, is an accounting of the transcendent experience that the Founding Fathers had and used to rise from the disorder of their time. In fact, it is account of that which they believed to be “God-given” or divinely-given.

As the central symbol of the Greek’s Reason was the ‘philosopher,’ the central symbol of the Constitution became the ‘freedom-loving American.’

Much like Reason, the Constitution became an irreversible event in history but contained reflections of the metaxy between man and the divine that existed long before the American Revolution and which did not and could not have prevented the split between America and Great Britain. The enactment of the Constitution certainly did not serve to completely disenfranchise men from their passions, enslavement of other human beings, or the need for a physical revolution.

Instead, constitutional Reason became a new “persuasive force” in American experience. Necessarily, an analysis of how Reason or the Constitution came to be persuasive forces is warranted.

The Development of Reason

For the Greeks, the force that allowed the human psyche to resist disorder was called “Nous.” Each human was considered to have Nous within them and was thought to participate in Nous. Nous is reflective of a movement toward higher order.

However, the noetic movement toward higher order is countered by a natural human pull toward passion and the matter which makes for our finite human existence in time and space. According to Voegelin, this creates a tension between the passions and higher order. As such, we are in a state of existential unrest.

Further, we are to recognize that man is not self-created nor is man a self-sufficient being which carries within him the ultimate meaning of the universe. Rather, humanity is left with questions about the “ultimate ground” of reality. Our experience is taken to be from the position of being what one might refer to as an, “interrogator of reality.” Our ability to articulate perceived answers to our own interrogatories becomes our greatest and most respectable endeavor and is most reflective of that which makes man what he is. This ability to articulate with regard to the `process of questioning’ allows us to hint at, reflect on and share with others our experience of the “ultimate ground” for our existence, which again, is in us and which created us.

It is our questioning that is, in of itself, reflective of our pull toward that which created us. We know not why we question; Yet, we do know that we are compelled to question.

By thinking about that which serves as the force behind our inherent desire to question, we are thinking about the arche’ of our humanity. The divine ground reflects itself in us by the order (not mere logical order) of our thinking; Yet, it is limited by our human condition. Thus, a ground of tension or metaxy is created between the divine order and man’s order of thoughts and articulation of the experiences which gave rise to such thought and man’s related questioning about reality.

In summation, we are told by Voegelin that:

“The man who asks questions, and the divine ground about which the questions are asked, will merge in the experience of questioning as a divine-human encounter and reemerge as the participants in the encounter that has the luminosity and structure of consciousness . . .

The ground is not a spatially distant thing but a divine presence that becomes manifest in the experience of unrest and the desire to know. The wondering and questioning is sensed as the beginning of a theophanic event that can become fully luminous to itself as it finds the proper response in the psyche of concrete human beings . . .

[This is a movement that is] . . . man’s responsive pursuit of his questioning unrest to the divine source that has aroused it. This pursuit, however, if it is to be responsive indeed to the divine mover, requires the effort of articulating the experience through appropriate language symbols; and this effort leads to insights into the noetic structure of the psyche . . .

The movements of the divine human encounter are understood to form an intelligible unit of meaning, noetic in both substance and structure.

This is the unit of meaning to which I have succinctly referred to as man’s tension toward the ground of existence.”

Further, man’s modes of tension can take the forms of hope, faith, love and trust. As is discussed below, the Constitution was a reflection of these modes of tension and was a divine human encounter in the same sense that the Greeks’ Reason was. Justice is the mode of tension in the Noetic-Constitutional experience.

The Divine and The Constitution

The initial appeal to our divine nature in the development of the Constitution of the United States finds itself in the following language from the Declaration of Independence:

“We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

The phrase “self evident” detectably takes on a sense of having truths and knowledge of the divine arise from within ourselves and yet also directly arises from that which allows us to be or that which created the ability for us to see these truths as self evident.

On its very face, the language of the Declaration of Independence images a tension between the material state of man’s existence and something, albeit divine or otherwise, which allowed its Drafters to question an apparent absence of rights. This questioning derived from perceived a priori knowledge of a higher order — something within the conscious be-ing of man and within the Original Drafters.

As mentioned by Voegelin, Greek man acknowledged his being created. So too, America’s Founding Fathers recognized, out of a given state of disorder, that they were created by something higher than the order reflected by their own existence alone and the disorder in which such existence was then grounded.

In fact, the serious disorder of the age was reflected in America’s claims about the conduct of Great Britain. In point, America claimed that Great Britain was:

A.) acting against the “public good”;
B.) engaging in “invasions” of rights;
C.) obstructing “the administration of justice”;
D.) “plundering” and “ravaging” maritime interests;
E.) “burning towns”;
F.) “destroying lives”;
G.) completing “works of death, desolation and tyranny”; and,
H.) being “deaf to the voice of justice.”

Assuming these things to be true, with a view toward our own times, it certainly appears that early America did not continue to remain in the apeironic depths of its then existent position in the continuum of human time and space. There were no more house burnings, trials by church and State or obvious acts of tyranny following the divine encounter of America. Nor was she limited by any belief that man cannot aspire to the divine.

Regardless of the lack of epistemological footing for a belief in `higher order’ amidst the experiences of the time, America found within itself an inhering sense of higher order and came to articulate the experience of this strong inner sense through the documents that form the basis of American society.

This Nous of the eighteenth century was again manifest in the language of the Constitution itself. To wit, the following was stated and ratified on September 17, 1787:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish the Constitution of the United States of America.”

The Constitution would then become that “supreme law of the land.” The articulations contained therein would now become the `persuasive force’ that would, in Voegelin’s terms, illuminate America’s existence for its citizens and the world as a whole. The Constitution was now an articulated unit of meaning having arisen from the metaxy of man’s human experience and that which caused him to believe that there was a higher order outside of his epistemological footing of the time.

Justice would now take place at a new and ongoing politico-metaxy existing at the junction of the Constitution and the conduct of our daily human affairs.

On December 15, 1791, the United States further exhibited its tension toward the ground of its existence by ratifying the Bill of Rights. Among these fundamental rights, and first mentioned, was the right to free speech.

This particular right is an ultimate reflection of the experiential phenomena described by Voegelin in that it secured the right of persons to “articulate” their experiences as questioning human beings. Again, we must remember Voegelin’s claim that our movements toward the divine ground can only be had through articulation of our experiences.

The First Amendment affirms man’s questioning nature and so he becomes temporarily vindicated from the disorder and tyranny that began to stifle his questioning
existence. America’s pursuit of that which was claimed to be “God-given” would then be further vindicated by enactment of the remaining nine Amendments to the Constitution.
Assuredly it seems that the right to be secure in our persons and property, the right to trial by a group of our peers and the separation of Church and State bolster our ability to seek the ultimate ground of our existence on an individual level.

Nonetheless, Voegelin, in his discussion of the Greek experience of Reason, warns us that humans can find themselves distanced from the Nous and Reason when these things are viewed as something wholly abstract and distanced from the realm of the direct human experience of consciously facing off with reality.

We begin to develop certain psychopathology when we lose our openness and desire to pursue the divine within us. This psychopathology began to exhibit itself after the Greek Age and, I would submit, that modern America is exhibiting near terminal pathology relative to the Constitution as a reflection of higher order given by the divine within us. This is a pathology that is manifest by a disrespect for the value of human life, political party agendas outside a beneficial conservative/liberal politico-metaxy and the fears of a society governed by its sense of economics.

Psychopathology and Reason

As mentioned above, Voegelin’s described Reason comes about through an interactive experience wherein man and his arche are mutual participants at the metaxy between them. Albeit that which causes us to “be what we are” initiates the process, we must be responsive to and maintain an ongoing openness toward our Creator and the ultimate ground. The mutuality of the experience makes for healthy existence. When we focus away from the ground, we counteract the process and so become philosophically ill. Again remembering, the divine allowed for man and is also a part of man.

That which created us is taken to be as much a part of our existence as the human experience of existence itself and thus plays a central role in our healthy consciousness. Undeniably, it seems that consciousness comes into being, that complete consciousness is the prerequisite to experience and that experience of reality is the medium by which we come to acknowledge our consciousness.

Moreover, it must be recognized that “reason” (with a small “r”) is only a tool by which we can come to interpret the material world around us. It does nothing to bring our attention to that which allows or which created our “reason” in the first place. Focuses on “reason” are only focuses on human interpretation of the world and not on that which is in the world per se’.

Thus, it seems that a philosophical ascent to that which is the higher cause or source is much more in line with the ultimate goal of experiencing mankind as something more than mere matter clashing with other matter in the world of conscious reality. The philosophical ascent that is positive is the one that soars on the wings of the tension between that which caused us to be and that which we are. All the while, we must maintain an openness to that which compels us to be questioning beings. “Reason,” as an epochal historical event, is to be taken in an ontological sense, is a process happening in the whole of reality and, when recognized, assists man in rising above the disorder of his material conduct.

The mere belief that we contain within us and originate from something higher than ourselves is a medium to intellectual and spiritual progress. “Reason” (with a big “R”) is a necessary part of our progressive ontology. The reason for my belief in this regard is grounded in the notion that: If `All There Is’ relates to the matter that we now experience, we would have no basis for moving forward and there certainly would be no need for creativity or the other aspects of consciousness that seemingly separate man from beast. Matter, in a sense, becomes a constant: Our interactive and questioning nature, when acknowledged and activated, allows for variables and choices beyond what merely “is.”

It is the optimistic human belief that we can go beyond the contemporaneous experience of matter and our seemingly animalistic states, as they manifest themselves before us, and our manipulation of the matter beyond “what it is,” that creates ascent beyond the mere experience of matter in of itself and alone.

Our human be-ing becomes a state of interactive questioning, in the sense of “What might be, besides that which is before me?”, Thus, we are moved forward in our be-ing. A passive view of reality would seemingly not allow us our individuality or perceived acknowledgment of God-given rights or the Divine or Reason. Questioning is, by definition, a process of going beyond what is experienced and, in that sense, is progressive and in the direction of going beyond matter. Further, questioning and noetic experience are events of the human consciousness and not mere ideas or constructs.

In order to maintain a healthy existence as humans capable of having meaning in our lives, we must acknowledge our questioning state of awareness as an inherent and integral part of our existence. When we operate in the metaxy of that which is beyond the here and now of material experience and our thoughts of “what might be beyond,” we are fulfilling the questioning nature of our existence.

When we solely focus on the mere “matter” of experience or the tools which are used to interpret the matter, we are at most existing at an experiential standstill and perhaps find ourselves digressing in our quest for that which makes us “what we are.” A focus on logic, mere sense data, language, passions and scientific method calls us only into the present and past. Questioning is a bridge to the future in that an answer, as meaning or value, is always a future event preceded only by questions. Although the material necessary to effectuate and answer is within the world, the questioning comes first and is a humanly conscious event beyond the realm of matter. Matter has no consciousness in my ontology.

Notwithstanding, the above thinking is also applicable to our sense of American Constitutionality.

A Healthy View of the Constitution

As stated before, the creation of the Constitution was no mere recital of proposed ideas, but rather, was an articulation of the experience of thinking about what “God-given” rights there are or might be. As well, the Constitution gives us an articulation of the structure of government and the relationship of the People to their government.

When referring to Reason, Voegelin tells us:

“The life of Reason is not a treasure of information to be stored away, it is the struggle in the metaxy for the immortalizing order of the psyche in resistance to the mortalizing forces of the apeironic lust of being in Time.” (P. 288).

By conceptual analogy, so it seems that the Constitution should not be taken as a mere treasure of historical information to be placed in the United States’ archives. It becomes a living document that allows for an `In-Between a higher order and the doldrums and drama of our everyday conduct as American citizens’. Ostensibly, the idea of the Founding Fathers was that we would be presented with an inkling of the higher ground through the Constitution. When in societal disorder, we would have something to appeal to — a sense of divinity to appeal to. The Constitution wasn’t meant to be temporary and, quite properly I believe, we have not treated it as such.

The Constitution is a reflection of what America should be. Perhaps unfortunately, it is not necessarily a reflection of who we, as Americans, are today.

I believe that there is a metaxy of the Voegelinean type between the Constitution as a reflection of higher being and our day to day conduct as American citizens. In order to have a truly free society, there must be a mutual participation between us and the spirit of the Constitution.

The Constitution should be taken as a reflection in the belief that man is more than mere animal — that he is reflective of the divine and the civility within us. Tyranny, barbarism and chaos are a reflection of the apeironic depths which lie at the spatio-temporal ground of matter.

Moreover, that which caused or allowed the Constitution to become an articulated reflection of the divine experience should be viewed as our initiative to acting constitutionally: Our duty and charge, as Americans, is to be responsive to the Constitution as it reflects our higher being. Faithful adherence and non-ignorance of the Constitution is the experience of the `Constitutional experience’ already within us.

When officers of the law, officers of the court or even everyday citizens reject the divine order reflected in them, we become ill as Constitutionally created, inspired and driven citizens. However, we should not remain in offense of another’s rejection of Constitutionality, but must seek the production of faith, hope, love and respect by placing ourselves back into a state of unrest at the metaxy of our daily conduct and the Constitution.

There are such things as justice, love and equity in the world by virtue of our interactive role in the whole of reality. We come recognize that there are such things because we engage in conduct and interaction that is substituted by words like “justice.” These things or modes of observable conduct are just as real as tables, chairs and other observable things and should be acknowledged and revered as such.

In conclusion, I believe that I should be thankful that ” . . . when I had an inclination to philosophy, I did not fall into the hands of any sophist, and that I did not waste my time on the ordinary philosophers or in solving syllogisms, or investigating appearances in the heavens; for all of these things require the help of the gods and fortune.”

It is in the experience of my be-ing and thinking about the cause of my be-ing that I find justice and, as a lawyer, the Constitution reaffirms my daily existence.

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The Need for Theology

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Theological thinking is the only way to keep one’s self solidly grounded in our God-given humanity. As we enter into an age where more and more information is readily available to all, there is a highly elucidated need for core-grounding. Without this grounding, we risk a grave loss of our very being which is God created and driven. An effective fulfillment of our human destiny can only be driven by that which is consistent with God’s goodness as directly reflected in human nature. If one is an Atheist, the same might be said of strict adherence to atomic destiny or compliance with the natural results of the Big Bang / Evolutionist model of human origins. In other words, all men are bound to a destiny caused by something greater than themselves.

Notwithstanding, the adulterated human mind, for whatever reason, is oft inclined to deviate from its core nature — namely, its designed nature and functions. Our “nature” is that of a carefully designed being bearing reflections of our Maker. Our human “function” is to remain consistent with the ostensible purpose of our creation, which is to exercise our “free will” in a manner that is in direct accord with God’s goodness and the special gifts given only to man juxtaposed to that which was given to the common animal. When we remain consistent and reliable with our intended nature, we become better human beings and guardians of Earth.

Indeed, theological thinking is a ready guidepost to our distinct human nature. Theological thinking is the core ‘philosophy of all philosophies’. Much like music, art and other forms of human creativity, the theological form of thinking is one of the clearly identifiable forms of humanity that simply was not given to the animal kingdom.

Unfortunately, in defining our material nature, one can readily be caught up in comparisons to the animal kingdom, as was well demonstrated in Darwin’s Origin of the Species and the long progeny of human thought left in its wake. We are not mere animals. Humankind reflect a higher form of being founded in creativity and morality.

However, the one consistent theme in human history is a natural tendency toward the Divine which is only to say that theological thinking is what has defined humanity since Man’s beginning. Evolution and the empirically limited sphere of our material being cannot explain for our theological quest. In a strict Cartesian sense, the mere fact that we are able to engage in theological thinking is a priori evidence of the Godly source of such thought. The material nature of our being and Darwinian explanations do not permit human theological thought sua sponte.

Nevertheless, as we become exposed to excessive amounts of information through this Electronic Age, we tend to become weakened and less focused on our inherent nature. We risk losing sight of the fact that our nature is predefined and our “free will” is, perhaps unfortunately, given an opportunity to flourish beyond the bounds of goodness and holiness alone.

Indeed, temptation to sin (conduct contrary to the highest fulfilment of a Godly destiny) is by its very nature a deviation from what already is (e.g., our inherent nature / goodness). Much of what can be found in the electronic media and the press tend to cause deviations that need not be. A solid grounding in theology is the only way to remain true to ourselves and the divinity to be found in each of us.

As for myself, theological thinking and a strong desire to remain true to my design has allowed me to better educate those under my tutelage. When I served as a professor, I was required (in my humble view) to present my students with an opportunity to rediscover and use their natural talents in a manner that will make the world a tolerable place to be and where the Word can be put into practice. Theological thinking requires the student to do no more that to tap into their inherent nature. The role of a professor, much in the fashion of a true Socratic, is to bring the student to the answers that already dwell within them. In other words, we should be assisting the student in uncovering the Inner Light that exists within.

Theological thinking also grants one a clearer insight into the very nature of the physical universe. One cannot help but to conclude that the Earth is the obvious product of a Magnificent Design which can only be the product of a sentient and benevolent Being.

Purely scientific thinking produces, at best, a sterile view of the world that can only lead to a descriptive understanding or exposition of the Universe. Theological grounding more readily leads to a sense of awe and respect for not only the Universe but our role within it. As one views the world with a theological eye, one is much more able to view themselves as a part of an interesting world as opposed a mere observer of process and devolution. As we begin to see ourselves as a part of God’s creation, we can readily begin to empathize with those around us and, thus, the process of fulfilling a higher and more fulfilling destiny can begin.

Unfortunately, as stated above, many of our fellow humans have taken to religious dogma as the only source of higher redemption. This seems to me to be a fundamental rejection of Man’s “Inner Light.”

The Field of Law and Idealism Destroyed

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Just got back from serving as a ‘judge’ for my alma mater’s Moot Court program. What a great experience to come back to the school after nearly 15 years. I just hope these young legal minds do not become cynical, as I have.

What is it that we do to destroy the idealism and creativity of our young members of society?   One could tell that these students have a legitimate interest in the law, want to seek the promises of the Constitution fulfilled, and seem to really believe they can make a difference in the world.  The reality check is that much of the law has to do with acknowledging the biases of certain bench officers (and trying to play up to the same), many judges are not apolitical as promised, and political correctness gets in the way of both liberal and conservative views of the Constitution.  Will it ever be different?  Maybe this is just a matter of simple legal existentialism.