by Mark Gimenez
‘Ms. Garza, do you have a constitutional right to take the pill?’
‘You’re damn right I do.’
‘Why?’
‘Because in Griswold v. Connecticut, the Supreme Court found a right of privacy in the Bill of Rights—’
Book held up an open hand. ‘Does the Bill of Rights—the first ten amendments to the Constitution—expressly mention a right of privacy?’
‘No. But the Court found a right of privacy in the penumbras of the Bill of Rights—’
‘Penumbras? What, Ms. Garza, is a penumbra?’
‘Uh … I’m not really sure.’
‘Look it up.’
While she typed on her laptop, Book sat on the front edge of his desk and surveyed the one hundred freshman students—‘1Ls’ in the vernacular, the first year of their transition from human being to lawyer almost complete—rising before him in the fan-shaped, theater-style seating in Classroom 2.138 at the University of Texas School of Law. They attended his constitutional law class, ‘Con Law’ as it was known in the curriculum catalog, only because it was a required course; they needed the class credit to earn a law degree. These students much preferred studying the nine million words of the tax code and regulations, for their lives would be lived among those words. Those legal dos and don’ts, rules and regulations borne of generous lobbying and conveniently painted in gray rather than black and white, allowed for a lawyer’s creativity.
Many a legal career had been forged in the gray margins of the law.
But not his career. He had never been attracted to the words defining capital gains. After one reading of the Constitution—4,543 words; 7,591 including the twenty-seven amendments—back when he was a 1L, he knew his legal life would be lived among the words of James Madison. He had fallen in love with the Constitution at age twenty-two and the affair continued to this day. ‘We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.’
How could you not love those words?
But try though he did—and he did try Monday through Thursday from 9:10 A.M. until 10:00 A.M.—he could not instill the same love for the Constitution in these profit-minded students. If the Constitution had a Facebook page, few of these students would ‘like’ it. Few would follow it on Twitter. Few seemed to even entertain such lofty legal ideals as liberty and justice these days. Those were concepts you read about in the casebooks, not rights you fought for in the real world. They were not the children of the civil rights era; they were the grandchildren. Twenty-two, twenty-three, twenty-four years old, they had grown up in an era of affluence and entitlement, beneficiaries of the fights fought before they were born. Consequently, they cared more about their job prospects upon graduation, most hoping to become well-paid corporate servants.
Who else could pay $1,000 an hour?
And that was the role law schools now played: farm teams for the major league law firms. ‘A’ students were valuable commodities in the law business. They were currency. The schools funneled the best and the brightest to the plush offices on the fiftieth floors of skyscrapers across the nation. In return, the law firms endowed chairs at the law schools, ensuring the curriculum would be shaped to further corporate interests, offering such classes as: Corporations; Corporate Finance; Corporate Governance; Taxation of Corporations and Shareholders; Federal Income Taxation of Corporations; Corporate and Securities Law and Transactions; Corporation Law, Finance, Securities, and Regulation; Mergers and Acquisitions; and, of course, White Collar Crime.
Even for this millennial generation, a law degree was viewed as their ticket in life. Most, those sons and daughters of the working class, chose law school because their parents had not. They borrowed a hundred thousand dollars to finance a legal education at UT law school (twice that at Harvard law school) because a law degree still constituted a viable vehicle for social mobility in America, a way to get ahead. To be successful. To have a better life. Perhaps even to get rich.
Others, those sons and daughters of the one percent, simply needed a station in life, a place to be when they weren’t at the country club.
Only a few still came to law school with a desire to change the world. Like Ms. Garza here. She burned hot with political desire. She read off her laptop.
‘Webster’s defines penumbra as “the partial or imperfect shadow outside the complete shadow of an opaque body, such as a planet, where the light from the source of illumination is only partly cut off.”’
‘A shadow?’ Book said. ‘Let me get this straight: the Supreme Court found a right of privacy in the shadows of the Bill of Rights, where it had been lurking for almost a hundred and eighty years?’
‘That’s what they said.’
‘But I thought the Bill of Rights lists all the rights of the people guaranteed by the Constitution?’
‘That’s not correct.’
‘Please explain.’
‘The Framers figured right-wing Republicans—’
‘In seventeen eighty-nine?’
‘—would read the Bill of Rights as an exclusive list of the people’s rights, so James Madison added the Ninth Amendment specifically to negate that interpretation.’
‘And the Ninth Amendment states what?’
She read: ‘“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”’
‘To translate, the Framers wanted to make clear that there were other rights retained by the people, even if not specifically mentioned in the Bill of Rights?’
‘Yes.’
‘And in Griswold, the Court determined that one such unmentioned right was the right of privacy. The Court struck down a state law that banned the use of contraceptives, holding that that decision—whether or not to get pregnant—is within a woman’s zone of privacy. That the government has no say in such a personal decision.’
Mr. Brennan, also seated on the first row, raised his hand. He tried to transcribe every word Book uttered in each class on his laptop, more court reporter than law student. Book nodded at him.
‘Professor, after “whether or not to get pregnant,” did you say—’
‘Mr. Brennan, you don’t need to record my lectures ver batim. Just listen. Or better yet, participate.’
Mr. Brennan’s hands hovered over his keyboard. Book surrendered, as he had each class.
‘I said, “that decision—whether or not to get pregnant—is within a woman’s zone of privacy. That the government has no say in such a personal decision.”’
Mr. Brennan typed furiously.
‘Got it. So the rule of Griswold is—’
‘Mr. Brennan, this is Con Law not Civ Proc. You’re not trying to learn discrete rules of the Court. You’re trying to learn to think for yourself, which, unfortunately, few of you will ever do in the private practice of law.’
Mr. Brennan held his gaze. Book again surrendered.
‘The rule of Griswold is that there is an unwritten but fundamental right of privacy in the Bill of Rights, and a state ban on the use of contraceptives by a married couple violates that right. Which the Court extended to unmarried couples in Eisenstadt v. Baird in nineteen seventy-two.’
Mr. Brennan typed. He wore a Boston Red Sox jersey and cap on backwards. He was one of those working-class sons, intent on graduating in the top ten percent of his class, hiring on with a large Boston law firm, paying off his student loans, and living a better life than his father, a Boston cop. Mr. Brennan couldn’t get into Harvard, so he had come south for law school. He kept his head down, his fingers moving across the keyboard, and his mind focused on final exams. Book addressed the class.
‘Griswold was decided in nineteen sixty-five. Eight years later, the justices handed down perhaps the most contr
oversial decision in the history of the Court: Roe v. Wade. In Griswold, the Court said a woman has a fundamental right not to get pregnant. In Roe, the Court said a woman has a fundamental right to end a pregnancy. Mr. Stanton, who was the appellee in Roe?’
Mr. Stanton occupied the top row, leaned back in his chair against the wall and dressed like the frat boy he was, his hands buried in his lap and his fingers tapping against his cell phone. Texting in Con Law class. Again, Book held his tongue. Mr. Stanton was smart and rich, and he acted the part. His father was a senior partner in a large Houston firm that had endowed two chairs at the law school. Consequently, Mr. Stanton acted more like a shareholder of the school than a student. The transition from the UT law school to the River Oaks Country Club would be smooth and seamless for E. Roger Stanton Jr.
‘Mr. Stanton, if you have a moment, would you please answer the question?’
Mr. Stanton still did not look up from his phone.
‘Sorry, Professor, I’m dumping my Facebook stock I got in the IPO. Henry Wade, the Dallas County district attorney, he was the appellee.’
‘Who was the appellant?’
Still texting.
‘Norma McCorvey, aka “Jane Roe, a pregnant single woman.”’
‘Who was her lawyer?’
‘Uh … I don’t know.’
‘Read the opinion.’
Mr. Stanton’s eyes lifted to his laptop.
‘Sarah Weddington.’
‘From what law school did she graduate?’
‘Doesn’t say.’
‘Anyone?’
No one.
‘Not even you, Ms. Garza?’
She turned her palms up. ‘I wasn’t born until nineteen ninety.’
Mr. Stanton, texting again: ‘Didn’t your mother know that abortion was legal in nineteen ninety, even in Del Rio?’
‘Not funny, Mr. Stanton.’
But the class thought he was; they too had grown weary of Ms. Garza. She had been born poor on the border, at the opposite end of the socioeconomic spectrum from Mr. Stanton. She had entered UT an underprivileged female; she had graduated an in-your-face feminist. Book often saw her manning the pro-abortion booth on the West Mall, the free-speech zone on campus. He finally answered his own question, something law professors often had to do.
‘Sarah attended this very law school. She graduated in nineteen sixty-seven. Only four years later, she argued Roe v. Wade and became the youngest lawyer ever to win a Supreme Court case.’
The students smiled, as if they could put her victory on their own resumés. Ms. Garza seemed especially proud. Perhaps Sarah the law student had burned hot with the same desire to change the world. She had certainly changed the world; some would argue for the better, some would argue for the worse, but no one could argue that she didn’t change the world. Book had won two search-and-seizure cases at the Supreme Court. Both were groundbreaking—every Supreme Court case is groundbreaking—but neither had changed the world.
‘Mr. Stanton, what law did the appellant challenge?’
Still texting. He did not look up.
‘The Texas law that made all abortions criminal acts unless necessary to save the mother’s life.’
‘And what did the Court decide?’
‘That the law violated Roe’s right of privacy and was thus unconstitutional.’
‘Mr. Stanton, in which article of the Bill of Rights is abortion mentioned?’
‘It’s not.’
‘Why is that?’
Ms. Garza couldn’t restrain herself.
‘Because racist, misogynistic white men who owned slaves and didn’t allow women to vote wrote the Constitution!’
Mr. Stanton coughed words that sounded like ‘affirmative action.’ His posse of fellow frat boys on the back row laughed. Book did not defend Ms. Garza. She needed no help. She turned in her chair and aimed a finger (not her middle one this time) at Mr. Stanton.
‘Your days are numbered, Stanton. Apartheid in America is coming to an end. Enjoy it while you can.’
‘I will. In a month, I’ll be lying by the pool at the country club surrounded by white girls.’
‘And if you get one of those girls pregnant, your rich daddy will pay for her abortion. A poor black or Latino girl gets pregnant, your daddy wants to force her to have the baby. Fifty million abortions since Roe—does your daddy want to pay more taxes to support all those babies?’
The senior Stanton was a prominent and very rich Republican in Texas.
‘No, but I’ll get him to endow a lifetime abortion pass for you. God knows we don’t need any more Irma Garzas in this world.’
The junior Stanton shared a high-five with his posse. Book kicked the front panel of the desk as if the heel of his boot was a gavel, and order was soon restored. Book had warned the students that his classroom was an intellectual free-fire zone, like the Supreme Court but more civil.
‘Mr. Stanton, if the Constitution says nothing about abortion, how did the Supreme Court determine that a woman has a constitutional right to have an abortion?’
‘They discovered it.’
‘Where?’
‘In the right of privacy.’
‘The same right of privacy they discovered in Griswold?’
‘Yep.’
‘Another unmentioned right lurking in the shadows?’
‘Who knew?’
‘But, as Ms. Garza correctly stated, the intent of the Ninth Amendment was to make clear that there are other rights not mentioned in the Bill of Rights that are nonetheless protected by the Constitution. The Court ruled in Griswold that one such unmentioned right is the right of privacy. Mr. Stanton, isn’t abortion another such right?’
‘No. Abortion was not an unmentioned right of the people at the time the Bill of Rights was ratified. In fact, it was a crime at common law in every state of the Union.’
Ms. Garza stood and faced Mr. Stanton. The debate was on.
‘That’s bullshit, Stanton. The Court said abortion was not a crime at common law.’
‘They lied. The only authority the Court cited were two law review articles written by the general counsel of a pro-abortion group, which articles have been roundly discredited as distortions of the common law. In order to justify their hijacking of the Constitution to push their political agenda, the liberal justices misstated history by adopting one biased author’s point of view.’
‘History is just a point of view,’ Ms. Garza said. ‘Usually written by white men biased against women and minorities. The right to have an abortion was another right not mentioned in the Constitution because women did not serve on the Constitutional Convention. Women’s voices were not heard at the time, Mr. Stanton.’
‘Thank God.’
Which elicited a round of boos from the women in the classroom. Book kicked his desk again and gestured Ms. Garza into her chair.
‘Mr. Stanton, what was the key ruling of Roe?’
‘That the right of privacy includes the right to have an abortion.’
‘No.’
Mr. Stanton frowned.
‘Ms. Garza?’
‘That before viability of the unborn child, the state has no legitimate interest in the unborn.’
‘The Court so held, but was that really the key ruling of the case?’
No takers.
‘Come on, people, you’ve read the case. Think.’
Heads ducked behind the façade of laptops.
‘I know you’re back there. You can hide but you can’t run, at least not for’—he checked the clock on the back wall—‘fifteen more minutes. Was viability the key ruling of Roe?’
‘No.’
A small anonymous voice.
‘Who said that?’
Book searched the laptops for a face.
‘Come on, fess up.’
A hand slowly rose above a laptop.
‘Ms. Roberts? Was that you?’
‘Unh-huh.’
Ms. Roberts peeked over her laptop on the
sixth row. She had never before spoken in class.
‘Ms. Roberts, welcome to the debate. So what was the key ruling in Roe?’
She looked like the shy girl in high school who had never been on a date being asked to the prom by the football star. She took a handful of her hair hanging in her face and wrapped it around her left ear. With her index finger she pushed her black-framed glasses up on her nose. She took a deep breath then spoke in the softest of voices to the hushed classroom.
‘That under the Constitution, an unborn child is not a living human being at any time prior to birth. As Justice Stevens said, it is only a, quote, “developing organism.” Thus, the Constitution offers no protection whatsoever to an unborn child.’
‘Correct. Please elaborate.’
‘The Fourteenth Amendment states that, quote, “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Thus, if an unborn child were a “person,” Roe’s case would fail because the Fourteenth Amendment would expressly protect the unborn child’s right to life. So, in order to find a right to an abortion, the Court had to first rule that an unborn child is not a “person” under the Constitution. Which is exactly how they ruled: an unborn child is not a living human being and thus abortion is not the termination of a human life.’
Ms. Roberts had found her voice after eight months of Con Law classes. Another small victory for Professor John Bookman.
‘So?’