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Hearing the Call, Defend Something Greater than Yourself

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When asked to write an article on religious liberties, I originally thought to give an update on First Amendment jurisprudence and maybe to throw in a couple of quips about the direction the courts have taken on religious freedom. Instead, I find myself struck by the awe of our professional calling under the Constitution. I think about the current state of our moral and financial economies as a nation. Moreover, I think of the political philosophy of Eric Voegelin and his view of what it means to seek the higher order in life and the law.

The solemn oath we have taken as officers of the Court is a serious oath to defend the Constitution and all that it stands for. In my view, the Constitution came from and stands for something much greater than ourselves. Indeed, when we think only of ourselves, that’s about all we get. We must always be willing to think of and be willing to defend something greater than ourselves.

The need to defend free speech, religious freedom, and the right to assemble has never been more critical. We live in a society where values have become relativistic, where morality is centered on individual ‘needs,’ and where economic viability is the test for one’s societal worth. Sadly, the First Amendment often finds itself protected only by those who have a certain political view of what it means and the regular absence of a counter-position is misread as victory or consensus. We also forget that relativism is but a subtle form of anarchy. Yet, fortunately, the objectivity of the Constitution provides a societal solace not found in many other parts of the world.

Moreover, much of the ‘defense’ of the First Amendment has resulted in the conclusion that anything of divinity has no place in public discourse. Religion, faith, and a sense of wanting to restore order have been morphed into a negative, if even reviled, position in contemporary jurisprudence. It should not be so. We all ought to self-examine the purpose of being legal professionals and must strive to zealously defend the First Amendment as though the very progress of humanity depended on our advocacy. Indeed, we can only progress when we seek a higher order beyond our present lot in life. But for the idea of something greater and outside than ourselves, we would have no need or desire for progress as humans. We often forget that the difference between human evolution and natural evolution is that human evolution is generally self-directed. You must know that we can define the parameters of a bright and recovering future. We as lawyers can help define the justice necessary for America’s recovery.

In the case of the American justice system, our higher order is reflected in the language of the Constitution. In this vein, 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. Each side has a story to tell, both sides are presented and, from the tension between the sides, comes “justice.” The concept of a living justice is a purely noetic experience. Equally, justice must always be reflective of a higher calling toward Reason.

Reason, in the classical sense, is not to be taken as referring to `reason as mere logic or logical constructs’. Instead, “Reason” is a human experiential event, an ever-present “constituent of humanity,” and a “source of order in the psyche of man.” With an air of sincere hope, Eric Voegelin saw Man as being able to actually experience and articulate divinity. 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. Please do not confuse the term “divine” with purely theological connotations. Think of it as more of the essence of what makes Man different than a common animal.

Voegelin’s representation of Reason is used here as a paradigm for the workings of a Constitutional jurisprudence. In this vein, all of us called to the profession of law must defend the cornerstone of our higher order, which is the First Amendment. It must also be known that when we fail to defend it, we deny human progress, we deny the opportunity for diversity of thought, and we kill the very spirit of our system of justice.

Historically, it must be acknowledged that the development of the Constitution could not have been anything but a manifestation of America’s pull toward the Divine and was reflective of the experience of Reason. The Constitution was not meant to be a mere recital of ideas and concepts that might prove useful in the governance of human affairs in the eighteenth century and beyond.

Presently, it seems that America is in a pull toward the passions of socio-economic existence and we have voluntarily lost sight of the divinity in us. Our present pull toward the darker elements of American humanity amounts to an outright rejection of the Divinity which inspired the Declaration of Independence and the Constitution.

In my view, the inspiration for the Constitution was 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 vibrant new democracy. 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 defined/created them.

Voegelin’s notion of Reason is founded on the essential claim that `experiences create concepts.’ In the case of the Constitution, the American experience of the 18th century created powerful political concepts. The human experience of the time, however, was only a medium through which the Constitution could come to be a representation of the higher order giving rise to its possibility as a living documentation of human contact with higher/divine order.

The Constitution, as an instrument of communication, is an accounting of the transcendent experience that the Founders had. It was/is account of that which they believed to be “God-given” or divinely-given. The Constitution contains reflections of the metaxy between Man and the Divine which existed long before the American Revolution and which 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.

The force that allows the human psyche to resist disorder is called the ever present, but oft hidden, “Nous.” Each of us has Nous within us we participate in the Nous of our times. Nous is reflective of a movement toward higher order. However, as suggested above, the noetic movement toward higher order is countered by a natural human pull toward our primitive passions and the matter which makes for our finite human existence in time and space. According to Voegelin, this creates a tension (i.e., metaxy) between the passions and higher order. As such, we are in a state of existential unrest and do damage to ourselves by failing to recognize the divinity in our human purpose.

Humbly, however, we are to recognize that Man is not self-created nor is Man a self-sufficient being which carries within him/her 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 an interrogator of reality. Our ability to articulate perceived answers to our own interrogatories becomes our greatest and most respectable endeavor. This work is most reflective of that which makes us what we are. 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. The First Amendment provides a guaranty that we might be able to engage in higher Reason even when we fail to desire the sanctity of our freedoms. By defending that which serves as the force behind our inherent desire to question, we are thinking about the arche’ of our humanity. A necessary mode of tension is created between the higher order and our struggle to attain it.

When in good health, our modes of tension can take the forms of hope, faith, love and trust. This includes faith, hope and trust in our fellow man, whether he be Christian, Buddhist, Muslim, Atheist, or simply questioning. Moreover, the theophanic events of hoping and believing are not dependent on race, creed, religion, ethnicity, or gender. Justice is the mode of tension in the Noetic-Constitutional experience.

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.

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 acting against the public good, engaging in invasions of rights, obstructing the administration of justice, plundering and ravaging, burning towns, destroying lives, completing works of “death, desolation and tyranny,” and 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 extant 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.

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. Modern America is exhibiting near terminal pathology relative to the Constitution as 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 fiscal economies.

As mentioned above, Reason comes about through an interactive experience wherein man and his arche are mutual participants at the metaxy between them. The mutuality of the experience makes for healthy existence. When we focus away from the ground, we become philosophically ill.

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.

We must also realize that we cannot simply reason ourselves out of the horrors of our time. 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 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 and is a process happening in the whole of reality and, when recognized, assists us in rising above the disorder of our material conduct.

Matter, in a sense, becomes a constant: Our interactive and questioning nature, when acknowledged, activated and defended, allows for variables and choices beyond what merely “is.”

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. The First Amendment promotes this process. A passive view of reality would not allow us our individuality or perceived acknowledgment of God-given rights or the Divine or Reason. Denial of the right to question denies our fundamental humanity. Further, the process of questioning is the very eventing of the human consciousness and defines our humanity.

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. 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. Our willingness to defend all questioning provides the necessary materials for this bridge. 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.

Again, the Constitution provides an articulation of the structure of government and the relationship of the People to Government. 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. Unfortunately, it is not necessarily a reflection of who Americans are today.

In order to have a truly free society, there must be a mutual participation between us and the spirit of the Constitution. We must recognize the divine nature of others. When officers of court or everyday citizens reject the divine order reflected in them, we become ill as Constitutionally created, inspired, and driven citizens. Notwithstanding, 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.” It is in the experiences of life that we find justice and, as a lawyers, the Constitution reaffirms our daily purpose. Listen to the call of your profession and defend something higher than yourselves.