Chapter 23
“All rise. The honorable court of the District of Selgen Circuit is now in session.”
Counselor Megders felt his heart galloping like a herd of wild stallions, and while he was somewhat relieved he would not make his opening argument first, the relief afforded by this small mercy was comparable to that of seeing one’s comrade walk the gallows steps first, thereby granting another few moments of life, at the harsh expense of passing them in bitter trepidation.
The three stern-faced judges looked towards the table of the appellant, the Government of Selegania, whose small army of alert-faced attorneys looked ready for war.
“The Court will first hear the opening argument from the appellant.”
The eyes of the soldier-like attorneys quickly converged on a confident-looking man in his mid-forties, a veteran of both trials and appeals, whose premature wrinkles made fine substitutes for the honorable wounds a military veteran might bear. Megders recognized him right away as Richard Hollenbough.
“Your Honors,” he began, “this is a case about protecting the health of our citizenry. Because SISA is fully compatible with Article 8, the lower court’s decision should be reversed, and the trial of the brazen outlaw David Stephenson should recommence with all speed.
“Article 8 does not wholly forbid the legislature from banning substances. It includes an exception for poisonous substances, and Smokeless Green meets all reasonable criteria for a poisonous substance. It is highly addictive. In large quantities, it can cause death. Its users often resort to crime to obtain the drug when they are no longer able to afford it, and as a result violent crime has increased throughout the country and in particular within this city.”
After a recitation of the many evils caused by Smokeless Green, he concluded, “In brief, this drug is poisonous both to the individual and to society, and therefore its prohibition is fully permissible by Article 8.”
As Counselor Hollenbough made his way to his table, Megders began to feel his knees quiver as he stood and approached the platform to face the judges.
“Your Honors, Smokeless Green is a pernicious substance. Of that, there can be no doubt. No one knows where it originated. No one knows where it is produced. All of which are facts that suggest it is not native to even the most recondite corners of our republic.
“But as for proof that it falls below the rank of poison,” Megders said with his voice rising commensurately with his growing confidence and genuine disdain for his opponents, “we need look no farther than the ignominious, so-called ‘gentleman exception’! Were the senators of our republic so imbued with concern for the safety of their fellow citizens, they would not withhold for themselves the special privilege of profusely consuming the very substance they claim to be a poison!
“Anyone can read the text of the infamous exception, but few can truly experience the toxic hypocrisy of it, for to do so would require that one be a member of one of the few gentlemen’s clubs in this republic where the wealthy stuff this so-called poison up their noses with the full approval of the law! Let history record these words—whatever becomes of this law through the process of the present litigation, it will be forever branded with shame and ignominy by future generations!
“Article 8 was forged in the fires of the prohibition wars that stained this nation red with her citizens’ blood centuries ago. It was realized that attempting to eliminate the consumption of alcohol by criminalizing it was little different from attempting to put out a fire by throwing dry wood on top of it. Criminal bands of bootleggers sprang up overnight and were eventually consolidated into rival factions that began buying up portions of the nation’s police and military until we were immersed in a bloody civil war.
“Cool minds realized that by removing the prohibition on alcohol it would return to its natural value—uninflated by the threat of prison—and the most powerful opponents to the repeal of prohibition were naturally the bootleggers themselves and those in government who had become accustomed to their steady flow of bribe money. Many senators sacrificed their lives by voting for the repeal, but once it was in effect the bootleggers were immediately sapped of their artificial income, and with time our republic recovered a semblance of lawfulness and normalcy.
“But it was realized that the repeal was insufficient. It had to be made sure that the country never again be immersed in blood and bribes. It was in that historical milieu that Article 8 was passed. It was understood by those wise senators that a true poison will never become an irresistible commodity sought by the masses, and thus state and federal government should be permitted to pass laws restricting access to true poisons.
“Alcohol contains many of the pernicious qualities of Smokeless Green. It drains a man’s income, harms his health, and insists on more and more of its user’s consumption. Just as many have the fortitude to drink alcohol in small moderation, there are some who are able to do this with Smokeless Green, although I do concede it is much more potent and addictive than alcohol.
“But,” and he again raised his tone and looked towards the appellants, “can this substance truly be called a poison when senators exempt themselves from its prohibition under the clever use of the term ‘gentleman’ so that they can intoxicate themselves with this substance with abandon? To ask the question is to answer it.
“Until the senate passes a law forbidding the use of this substance without any exemptions for the wealthy, they cannot be taken seriously when they deem this substance a poison. Therefore, I respectfully request that Your Honors uphold the district judge’s conclusion that SISA violates Article 8.”
As he returned to his chair, he did not have the assurance of victory, but he felt convinced he had at least communicated the majority of the arguments he had intended.
When Counselor Hollenbough approached the lectern, he looked like a boxer who had just taken a hard hit to the face, but was not quite downed, and who now prepared to launch himself upon his adversary without mercy.
Yet before he could get the first word out of his mouth, he was cut short by Chief Justice Revdel.
“Counselor Hollenbough, before you deliver your rebuttal, I must say that I am beginning to feel that I am witness to a legislative debate or perhaps a philosophical debate. And while I am not opposed to such endeavors—on the contrary, I find them quite enjoyable—would it be too much to ask you to flatter the court by the insertion of some legal argumentation?”
Counselor Hollenbough looked at the chief justice stunned.
Seeing he was clearly at a loss for the proper words, Chief Justice Revdel explained: “I have heard talk of the dangers of Smokeless Green, I have heard history lessons, and I have even heard logical arguments, but is there no case law you can present to support the government’s position that Smokeless Green, or perhaps even a substance similar to Smokeless Green, is a poison?”
Hollenbough’s face suggested he had had many things he was ready to say when he approached the lectern but was at quite a loss as to how to answer the chief justice’s unexpected questions.
Observing that Hollenbough was still struggling to find the appropriate response, Chief Justice Revdel narrowed his focus: “Can you name one other substance that is banned in Selegania?”
“Completely banned, Your Honor?”
“Or partially banned . . . are you saying you can think of no substance subjected to a complete ban?”
“Not immediately, Your Honor, although I might add that Smokeless Green is not subject to a complete ban,” Hollenbough said, carefully, not wishing to be seen as overtly correcting the judge.
“And why is it not? After all, if it is a poison, why is it necessary that gentlemen be exempt from the prohibition?”
If Hollenbough’s face could speak, it would say Hollenbough wished he had made a better effort at thinking of a fully or partially banned substance, rather than unwittingly causing the focus to be shifted to the “gentlemen’s exception.”
“
Your Honor,” he began carefully, like a chess player who realizes he has made a series of bad moves but who now intends to redeem himself, “it may indeed come to pass that the senate decides to ban this substance entirely and get rid of the ‘gentlemen’s exception.’ But as for the existence of it, there are compelling factors. While a poor, or even a middle-class person, might quickly be impoverished by addiction to this substance and as a result might quickly resort to the vilest means of obtaining it—robbery, burglary, kidnapping, prostitution, even murder—a wealthy individual is unlikely to.
“The senate defined ‘gentleman’ in such a way that even the most prolific partakers of this substance will have ample resources to satiate their appetites without resorting to such base methods of acquisition. Furthermore, SISA forbids even gentlemen from selling this substance to non-gentlemen. Thus, SISA insulates general society from this pernicious substance by ensuring that the only ones using or transacting it are those whose financial resources enable them to do so without causing harm to others.”
“But what about the harm to themselves? If this is a poison, surely they themselves will suffer great harm!”
Hollenbough looked as if he would welcome a transition from this aspect of the analysis the same way a stranded man on a cliff ledge would welcome a sturdy rope.
“Perhaps, but it is limited to them. What SISA recognizes is the reality that, while society can survive the self-destruction of some individuals, it cannot and will not tolerate the destruction of others by individuals.”
“Are you saying that the destruction of the wealthy would have no societal consequences? Suppose a gentleman senator—most likely a redundant term, mind you—dies of this poison. He ‘self-destructs,’ as you might say. His constituents are left without their representative. Is there no societal harm in that?
“Suppose the gentleman owner of a large corporation dies from the use of Smokeless Green. In the event of his unexpected death, a successor will likely have to be elected promptly by the board of directors, perhaps without adequate preparation. As a result, the company’s shares lose value, and investors are harmed. Is this not societal harm?”
If Hollenbough had been thrown a shovel, he might have given some consideration to digging a hole right then and there in the courtroom floor with the same determination of a prisoner escaping from his cell.
“It is less harm than an impoverished man breaking into another man’s home to cut his throat and steal his gold so that he can satiate his irresistible cravings!” Hollenbough said with indignance, perhaps concluding he had nothing to lose by attempting a slightly more spirited strategy, given that his amiable one had been ineffectual against his merciless inquisitor.
“The board of directors will notice an executive’s worsening vice and, likely, will have time to replace him before damage is done to the company and thus to the investors. A senator succumbing to the vice of Smokeless Green will risk damaging his reputation and losing the next election!” Hollenbough said triumphantly.
“So,” the chief justice continued calmly, yet doggedly, “it seems you are describing the demise of a Smokeless Green addict as being a slow and predictable one in the physiological sense for both rich and poor, yet precipitous—and therefore far more dangerous—in the financial sense only for the poor, hence making it a poison for the destitute and a mere vice for the affluent.”
“Yes, Your Honor,” Hollenbough said, believing himself to be out of the woods.
“Then why not repeal SISA so that Smokeless Green will go back to being a small fraction of its current price? Then, with the substance affordable to all, all individuals could make the personal decision you would grant only for gentlemen—the choice to self-destruct or not—without having to commit dangerous crimes to satisfy their addiction . . . something that is happening precisely because of this law!” the chief justice demanded.
Hollenbough now understood the feelings of the man in the desert who thinks he has discovered a clear, blue lake only to find more infernal, sandy desolation.
But, even wounded animals are capable of counterattack.
“Your Honor would risk all society with this pernicious substance while the senate sensibly experiments with permitting the use of this substance by the most financially independent, learned men of our nation!” Hollenbough said with genuine disgust, causing the chief justice himself to blush momentarily.
“So, are you saying this is an experiment? Forgive me, for I am a man of letters not of science, but I do believe that when one is experimenting it is for lack of certainty. Your words suggest experiments must be done to determine if Smokeless Green is a poison? Have I misunderstood, counselor?”
Hollenbough looked like he sensed a trap but felt a show of confidence would serve him better than careful reflection, as he had insufficient time to fully analyze the potential snares ensconced in the judge’s question.
“Not entirely,” he said, seeking to allow himself room for subsequent evasion. “It may be that after this social experiment has been carried out longer the senate duly decides to ban Smokeless Green entirely. But it should be noted that the brief period of full legality—the time prior to SISA—was itself an experiment. And the barbaric behavior of addicts—we all remember the naked barbarians who invaded our capital’s shopping district—proved clearly that this is not a substance that can be entrusted to the baser classes.”
Chief Justice Revdel seemed as though he had grown weary of this particular line of questioning and decided to return to an earlier question: “What are some examples of banned substances in our republic, albeit a partial ban?”
Hollenbough gulped, apparently unhappy to end the prior line of questioning, which had perhaps finally begun to take a turn in his favor.
“How about arsenic?” the chief justice asked.
“There are no federal bans, Your Honor, but I believe no shopkeeper would sell arsenic in large quantities without a convincing explanation from the customer for his need and would never sell it to a child.”
“So, in the case of a substance that can induce death almost immediately, everything is left to the discretion of the shopkeeper, but for something whose poisonous nature is only financial in the short term and only becomes physically so over a long period of time—if in fact it ever becomes so; no evidence of this has been presented—that substance must be guarded more closely? It must be restricted to all except the most wealthy?”
“The issue, Your Honor, is not whether the senate would be wise in also restricting other substances. Perhaps it should, and perhaps it one day will. The issue is whether Smokeless Green is a poison for the restricted class—the non-gentlemen class. The answer is yes because they will become addicted and, unable to afford it, will resort to heinous crimes to satisfy their cravings.”
Hollenbough then turned around and sat down, a slight look of satisfaction on his face, suggesting he had finally gotten to say even more concisely what he had wanted to say all along. The chief justice, who could have hauled him right back to the lectern, allowed his quarry a respite.
“Counselor Megders, your rebuttal,” the chief justice said.
Megders’ attention had been torn between his auditory and visual senses during the duel between Hollenbough and the chief justice. He had been tempted to feel optimism by the chief justice’s harsh questioning of the prosecutor, but he had found the look on Justice Haufensehn’s face both intriguing and unnerving. Though mostly indecipherable, it seemed to suggest he strongly disliked the chief justice’s harsh tone, though he perhaps dared not challenge him. And a couple glances in Megders’ direction had seemed to say, You’re next!
Knees slightly wobbly, he stood and headed towards the lectern, unsure whether he would indeed be given the opportunity to provide a rebuttal against Hollenbough, or whether he would be in for an interrogation session with the justices.
“Your Honors, Chief Justice Revdel’s observation that the texture of today’s analysi
s has been arguably more philosophical and historical rather than legal is a just one. It is precisely because of the glaringly clear nature of Article 8, as well as the legislative intent behind it, that neither the federal senate nor any state legislature in our republic has ever attempted to pass a law banning a non-poisonous substance.
“In preparation for oral argument, I researched the criminal codes of every state in our republic and found only three states that have substance bans, and these related to manifestly poisonous substances, such as arsenic, aconitum, mandrake, etc. Furthermore, the statutes in question—if I may generalize, though I am prepared to give word-for-word recitations if needed—do not ban possession but rather put limitations on the sale of such items, for example, by requiring that the vendor sell only a limited amount, record the purported use of such substance, etc.
“Thus, centuries have gone by since Article 8 was enacted without anything other than a few states restricting access to lethal substances. The legislative history itself is clear that Article 8 used the term ‘poisonous’ in the most common meaning of the word—lethal. The nature of Smokeless Green is that, like alcohol, it is taken to increase the pleasure of the user, not to kill him. And the ensuing time that has passed without any legislature passing a law banning the use or sale of any substance, except partial bans on lethal substances, is further evidence that this is the correct interpretation of Article 8: Only lethal substances can be ‘poisonous’ and therefore banned.”
“Yes, but no society before just recently has confronted a substance like Smokeless Green.”
It was Justice Haufensehn. Megders now knew beyond any doubt the man would be a bitter adversary.
Justice Haufensehn continued: “No sooner did this substance arrive in our society than our duly elected senators decided to partially ban it. Does not the short time gap between its arrival in our society and its prohibition nullify your argument or at least show that Smokeless Green is such a powerful substance that it cannot be rightly compared with other intoxicating substances?”
“It is a far more powerful substance than alcohol, Your Honor. Of that, there can be no dispute. But it still does not belong in the class of what can properly be called a poison. It is not lethal. I personally have witnessed many gentlemen lawfully ingest this substance on a regular basis, and yet they remain alive and breathing amongst us. No one has produced any evidence of a single fatality from Smokeless Green, and since the nature of Article 8 is that no substance besides poisonous ones can be banned, the burden is on the Republic to show that Smokeless Green is poisonous and therefore compatible with Article 8.”
“But are not laws to be presumed constitutional until proven otherwise?”
“Helthers v. Selegania, a Supreme Court case that has not been overruled, held that, when the constitutionality of a statute hinges upon a portion of the Constitution that creates a general prohibition against certain types of legislation and only permits a narrow exception, the burden of proving constitutionality will shift to the Republic once the opposing party demonstrates beyond a preponderance of the evidence that such a constitutional portion is at issue.
“In this case it is clear, not just beyond a preponderance of the evidence but beyond any reasonable doubt, that the constitutional portion at issue is Article 8 and that it indeed creates a general prohibition against laws such as SISA and only provides a narrow exemption for them. With that burden of proof having been met, the burden now shifts to the Republic to prove that the exemption has been satisfied.”
“I agree with his interpretation of Helthers and that Counselor Megders has proven Article 8 is at issue and generally would prohibit laws such as SISA and that therefore the burden of proving the exemption—i.e., the poisonous nature of Smokeless Green—has shifted to the Republic,” Chief Justice Revdel said.
“But the fact you have not seen anyone die from this substance does not mean it cannot happen or has not already happened,” Justice Haufensehn said abruptly.
“I agree,” seconded Justice Beckle.
Other than a brief look of possible camaraderie at his fellow justice, Haufensehn did not miss a beat but continued: “The infamous marketplace incident in which Smokeless Green addicts bathed in their own filth went around looting our capital’s shopping district in the search for Smokeless Green is compelling evidence in my mind that this substance is poisonous. Their behavior truly evinced a severely deteriorated mind. Regardless of burden shifting as dictated by Helthers, I believe the senate ought to be granted deference in their determination that Smokeless Green is a poison, at least when consumed improperly. Furthermore, the transcripts from the depositions leading up to today’s oral argument reveal that the Republic has sworn testimony from many addicts of the powerful effect the drug has on their minds and that they would do anything for their next dose. This seems consistent with a poison to me. It may be that gentlemen, due to their different breeding, are better able to restrain themselves and remain the master of this substance rather than vice versa. Is that not possible, Counselor?”
“I believe not, Your Honor. From what I have witnessed, most gentlemen consume ever-increasing amounts of this drug as their tolerance increases. They may not resort to such desperate acts as the hooligans in the market place, but that is simply due to their greater financial resources. Also, we do not know what the true mental health was of these market hooligans, since none were ever arrested. Perhaps it was some kind of publicity stunt done in order to convince the public SISA was necessary. After all, Smokeless Green was cheap enough at that time for the basest of our countrymen to afford it.”
“That is a rather brazen accusation, Counselor! Furthermore, while Smokeless Green was much cheaper then, that does not mean everyone could afford it. If these were idle men, unaccustomed to honest work, it is quite feasible that they did not have the money with which to purchase this drug.”
“It is a flimsy basis for an outright prohibition of a substance!” Megders shot back with a tad more zeal than he had intended, but at this point he was hoping to elicit some assistance from the chief justice, who seemed far more sympathetic to his side.
“Furthermore,” Megders continued, “crime rates have been steadily rising ever since SISA was passed. So, even if legalization of Smokeless Green would not remove all instances in which malefactors commit crimes to obtain it, if anything the experiment called SISA has demonstrated that by criminalizing Smokeless Green its value has skyrocketed to previously unfathomable heights, and the desperation with which fiends now seek their next dose far eclipses what was seen before!”
“Yes, but could that not be due in part to the fact the district judge’s decision invalidating SISA emboldened these criminal scum, who think that they will never be charged for their crimes?!”
“It may be true that unlawful peddlers of this substance hold hope that if they are ever caught in the act they can eventually escape prosecution by the invalidation of SISA, but surely they do this with a double mind. For if SISA is invalidated by Your Honors and the Republic does not appeal, or if the case goes to the Supreme Court and those justices also invalidate SISA as unconstitutional, then Smokeless Green will be back on the shelves of every grocery store, and the price will quickly work its way back down to earth from the artificial mountaintops upon which it currently rests.
“This would mean a lot of lost money to the drug peddlers, so I can’t be sure they really want SISA invalidated at all.”
“A most interesting observation,” Chief Justice Revdel said. He added nothing more because he was really talking to his fellow justices, as Megders’ cogent reasoning caused him to further doubt the claims of that three-bit newspaper story saying that the drug peddlers were threatening the justices that they better invalidate SISA.
Megders saw that Justice Haufensehn was visibly perturbed by the chief justice’s comment, and Megders felt this to be an opportune moment to seek his seat, which none of the justices opposed.
Hollenbough then rose and gave an uninterrupted closing statement, which essentially repeated his opening statement.
Megders then rose and approached the lectern.
“Your Honors, we are not here to decide whether it is in my best judgment, or in the Republic’s best judgment, or even in Your Honors’ best judgment to permit the sale, use, and possession of Smokeless Green, a very potent, highly addictive, arguably even dangerous substance.
“The question is narrower than that. It is whether Article 8 permits the ban of a substance whose purpose and effect is to put the user into an altered state of mind. The answer is clearly a resounding ‘no’! It is worth noting that while Smokeless Green is often used for the purposes of pleasure that is because it is best known for being used in conjunction with alcohol, as the former provides immense, long-lasting energy, which permits the user to thereby experience the pleasures of alcohol without any of its soporific effects.
“Nonetheless, there are many working class people who use a highly weakened form of Smokeless Green to work longer hours or even multiple jobs so that they can provide more for their family. Based upon the interviews I have done with those who have used this substance in the absence of alcohol or other drugs, Smokeless Green at its heart is a performance enhancer. It quickens the mind, sharpens the senses, reduces pain, and decreases the need for sleep.
“With the proper amount of restraint, this is a substance that could have profound military applications or, as for many working-class people already, work-enhancing applications. Hardly the attributes of a poison! Yet, it is true, that few people can use moderation with this drug, due to its highly addictive properties. Thus, if the senate were to pass a law limiting the amount one could lawfully purchase per month, I believe that would satisfy Article 8.
“I do believe such a law would be doomed to fail because ultimately this would simply open up a slightly more benign black market than the one that is underway now. Non-users would simply buy the maximum amount and then turn around and sell it to addicts who consume more than the amount permitted by law. It would be a waste of the police and courts’ time. At the end of the day, we must accept the lesson that our forefathers learned the hard way and passed down to us via Article 8, which is that, both to society at large and to the law enforcement institutions thereof, whatever good is achieved by attempting to ban a substance used for mental recreation will be dwarfed by the innumerable evils that arise from its criminalization.
“Smokeless Green. Addictive? Yes. Potent? Yes. Dangerous? Perhaps. Poisonous? Absolutely not. Your Honors, I therefore request that you uphold the district judge’s decision invalidating SISA.”
The International Businessman Page 25