Con Law

by Mark Gimenez

  ‘So, if the unborn child is not a living human being, what’s growing inside the mother—a vegetable? Dogs and cats aren’t persons under the Constitution either, but we have laws that prevent us from killing them for sport. And this ruling seems especially cruel given that the Court had previously ruled that corporations do qualify as persons under the Fourteenth Amendment and are thus entitled to the full protection of the Constitution.’

  Mr. Stanton, from the back row: ‘As my man Mitt said, “Corporations are people, too.”’

  Which evoked a round of laughter. Book kicked his desk again.

  ‘People, this is important. Ms. Roberts is on to something. Listen up.’ Back to Ms. Roberts. ‘So corporations have more rights under the Constitution than an unborn child?’

  ‘Yes. In fact, a rock has the same constitutional rights as an unborn child.’

  ‘You’re almost to the finish line, Ms. Roberts. Now tell us why that particular ruling matters.’

  ‘Because it makes us question whether we matter. It makes us question our place in the grand scheme of things. Do human beings occupy a special place in the universe or are we just a species that has evolved to a higher state of cognitive ability than, say, chimpanzees? When our highest court of law says human beings have absolutely no rights until we’re born, that delegates an unborn child to the same constitutional status as an earthworm or a tomato or a—’

  ‘Rock?’

  ‘Yes.’

  ‘And you think you’re more important in the universe than a rock?’

  ‘I hope so.’

  ‘So what are the possible legal consequences of this ruling?’

  ‘What if the unborn child has a genetic defect? Can the government force the woman to abort in order to avoid costly future treatment for that child? What if the government decides to solve poverty by instituting mandatory abortions, like in China? New York City public schools are giving the abortion pill to eighth-grade girls without their parents’ permission. When our highest court says that unborn humans are not “persons” under the Constitution and may be killed without constraint but corporations that manufacture weapons of war that kill millions of born humans are “persons” with constitutional rights, I say, Who are those guys? Why do they get to decide what is or isn’t human? Who elected them God? How do we know they’re right? If they’re right, who are we and what are we and what is our place in the universe? Is human life nothing more than a biological coincidence? Are our lives no more important in the universe than road kill on I-Thirty-five? Do we matter? Or are we just matter?’

  ‘And if they’re wrong?’

  ‘We’re all in deep shit, so to speak.’

  The students stared at her with stunned expressions. Except Ms. Garza. She glared at Ms. Roberts.

  ‘What, now you’re Sarah Palin? You want women to go back to coat hangers and poison?’

  Ms. Roberts did not wither under Ms. Garza’s hot glare.

  ‘I had an abortion, Ms. Garza. I was ra—’

  She ducked her head, and an awkward silence fell upon the room, until Mr. Stanton said from the back row, ‘Ms. Garza, you are the poster child for abortion on demand.’ Which evoked a round of supportive hoots.

  ‘Unacceptable, Mr. Stanton,’ Book said. ‘In this classroom we are civil lawyers, able to disagree without being disagreeable. What is my absolute rule of conduct?’

  ‘We shall remain civil at all times.’

  ‘You have violated that rule. An apology, please.’

  Mr. Stanton seemed contrite.

  ‘My sincere apology for my incivility, Ms. Garza.’

  She faced him.

  ‘Fuck off, Stanton.’

  He threw up his hands.

  The first time a student had blurted out the F-word in his class, Book had sent him packing. Eight years later, he didn’t blink an eye. He was beyond being shocked by profanity—in class, in the corridors, anywhere in public for that matter. Profanity was as much a part of speech for this generation as ‘howdy’ was for Book’s. The F-word had made its way from the locker room to the law school. Athletes, actors, CEOs, and even vice presidents employed the F-word. It’s a noun, verb, adverb, adjective, and interjection. It’s mainstream speech. It’s freedom of speech. The Supreme Court had in fact ruled that the government could not fine a broadcast company for the singer Bono blurting out the F-word during an award show. Book often wondered if the Framers had anticipated that the First Amendment would one day give constitutional protection to ‘fuck off.’

  ‘Not gracious, Ms. Garza,’ Book said. ‘People, I know this is an emotional issue. But as lawyers we must keep our heads while others around us are losing theirs. In this classroom, we are lawyers, not protestors.’

  ‘But we’re one Supreme Court justice away from abortion being banned in America!’ Ms. Garza said.

  ‘Who told you that?’

  ‘Biden. He said so on TV.’

  ‘He’s wrong.’

  ‘He’s the vice president.’

  ‘He’s still wrong.’

  ‘But Justice Scalia wants to ban abortions!’

  ‘No, he doesn’t. Scalia said that as far as he’s concerned, the states may permit abortion on demand. The conservative justices don’t think there’s a constitutional right to have an abortion, but they’ve never said that the Constitution bans abortion or that an unborn child is a “person” under the Constitution. They’ve never disagreed with the key ruling of Roe, that abortion is not the taking of human life under the Constitution.’

  ‘You sure about that?’

  ‘I’m teaching Con Law, Ms. Garza.’

  ‘Professor,’ Mr. Brennan said, taking a respite from his furious typing, ‘do you think the Court correctly decided Roe?’

  ‘Mr. Brennan, in this classroom what I think is irrelevant. What you think is relevant. And that you think. I don’t care whether you agree or disagree with the Roe case, only that you think about the case. As students of the Constitution, we are more concerned with the Supreme Court’s reasoning than with its decisions, its thought process rather than who wins or loses the case.’

  ‘Bullshit.’

  ‘Ah, a dissenting opinion from Ms. Garza. In any event, we may disagree with the Court’s decisions, but so long as the justices interpret the Constitution, they are acting within their authority. If, however, they amend the Constitution, they are usurping we the people’s authority.’

  Mr. Stanton: ‘And that’s exactly what they did in Roe. The Court can’t interpret words that don’t even exist.’

  ‘Ms. Garza, doesn’t Mr. Stanton make a good point? If the Framers of the Constitution—’

  ‘White men.’

  ‘Yes, we know that, Ms. Garza. If the Framers wanted to give a woman the right to have an abortion, wouldn’t they have just written it into the Bill of Rights?’

  ‘Their misogynistic belief system prevented them from considering the plight of women, just as their racist attitudes prevented them from freeing the slaves.’

  ‘All right. Let’s assume that to be true, that our Founding Fathers were unable, due to their upbringing, their religious beliefs, their views about women’s place in society … for whatever reason, they were incapable of including a right to an abortion in the Constitution. Now, fast forward to nineteen seventy-three. Women may vote, use contraceptives, attend law school. States are liberalizing abortion laws. Why didn’t the Court just say to Roe, “We’re sorry, but the Constitution does not address abortion. Therefore, you must take your complaint to your state legislature to change the law.” Isn’t that the correct action for the Court to take, to defer to the democratic process?’

  ‘Changing the law through fifty state legislatures would have taken decades, and without a national abortion right poor women like Roe might have to travel to another state to obtain an abortion. A Supreme Court opinion is the law of the land. It changes the law in all fifty states in a single moment. Like that.’

  She snapped her fingers. />
  ‘But, Ms. Garza, isn’t the appropriate avenue to a national abortion right a constitutional amendment? The Constitution has been amended twenty-seven times to add the Bill of Rights, end slavery, guarantee the right to vote to women and persons of all races, create an income tax, begin and end prohibition … Why not abortion?’

  ‘Because the justices knew right-wing religious nuts would block a constitutional amendment granting women the right to an abortion.’

  ‘But isn’t that the nature of democracy? We the people determining our own rights?’

  ‘Not when they the Republicans deny me my rights.’

  ‘But what do you do in a democracy when you can’t convince a majority that you should in fact possess a particular right?’

  ‘I do what Roe did—I get the Supreme Court to give me the right I want.’

  ‘So, in a nation of three hundred twenty million people, nine unelected lawyers sitting as the Supreme Court should circumvent democracy by removing certain issues from the democratic process and declaring those issues constitutional in nature?’

  ‘Yes. And it only takes five justices to win.’

  ‘But by removing abortion from the democratic process, didn’t the Court poison political discourse in America? Abortion wasn’t even part of the political conversation before Roe. Now it’s a litmus test for judges and politicians, and it has polarized the nation. Roe didn’t settle a political fight; it started one.’

  ‘It gave women control over their reproductive decisions. Just like men enjoy.’

  ‘Oh, yeah,’ Mr. Stanton said from the back row. ‘We’ve got it real good. A girl lies about being on the pill, and we’re paying child support for the next eighteen years. Try telling that to your dad.’

  Another awkward silence captured the classroom.

  ‘Uh, okay, let’s move on. In nineteen ninety-two, after two decades of protests, political fights, and contentious judicial nominations, the Court again took up a major abortion case, Planned Parenthood v. Casey. The Court’s stated intent was to put an end to the abortion wars in the country. In a five-to-four decision, the Court reaffirmed Roe but allowed the states more leeway in regulating abortions. Justice Kennedy’s lead opinion appealed to the American people to respect their decision and accept a woman’s right to an abortion as the law of the land, a lawyer’s way of saying, “Trust us. We know what we’re doing.”’

  Ms. Roberts jumped back into the fray.

  ‘How are we supposed to trust those guys when Kennedy can write that nonsense in Casey?’ She read off her laptop: ‘Quote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Really? Maybe it’s just me, but it’s hard to imagine Jefferson or Madison saying goofy stuff like that.’

  Mr. Stanton, from the back row: ‘I said goofy stuff like that back in college, but I was stoned at the time. I made a video and posted it on YouTube, got a hundred thousand hits.’

  ‘And you still got into this law school?’

  ‘Rich daddy,’ Ms. Garza said.

  Mr. Stanton shared a fist-bump with his buddies.

  ‘Was Kennedy like that when you clerked for him?’ Mr. Brennan asked.

  Book’s clerkship for Justice Kennedy had made him a hot commodity among constitutional lawyers because Kennedy was often the swing vote in crucial five–four decisions.

  ‘I came on board ten years after Casey. Kennedy was just trying to broker a peace in the abortion war. He respects the Court, and he wants the people to respect it as well.’

  ‘Too late for that,’ Ms. Garza said. ‘We’re not stupid. We know the Court’s just another political branch.’

  ‘The Constitution is just politics?’

  ‘Professor, everything is just politics.’

  Book felt as if he had just been told that the love of his life had cheated on him. The Constitution is just politics? The Court no less partisan than the Congress? Ms. Garza read his mind.

  ‘The only difference between Congress and the Court is that we can vote those Republican bastards out of Congress.’

  ‘Mr. Stanton—’

  He looked up from his texting.

  ‘Ms. Garza is mistaken, isn’t she?’

  ‘In so many ways, Professor.’

  ‘Make your case.’

  ‘First, her T-shirts are getting old. Second, she—’

  ‘About the Court being a political branch.’

  ‘Oh. The Court is perceived as being political because the justices subverted democracy in Roe. In America, we don’t stage violent protests and burn down cities when our side loses an election. We organize for the next election. But we want to vote. The people didn’t get to vote on abortion.’

  Ms. Roberts again: ‘As Scalia said in his Casey dissent, quote, “value judgments should be voted on, not dictated.” And quote, “the people know that their value judgments are quite as good as those taught in any law school—maybe better.” I like that.’

  Ms. Garza again glared at her classmate.

  ‘Now you’re quoting Scalia? Jesus, Liz, you wouldn’t talk for eight months, now you won’t shut up. Quote this.’

  Ms. Garza jabbed her middle finger at Ms. Roberts.

  ‘Unacceptable, Ms. Garza. An apology, please.’

  ‘Oh, I’m really fucking sorry, Ms. Roberts.’

  That constituted sincere for Ms. Garza.

  ‘Civility, people. This is a classroom, not the Supreme Court conference room on decision day. Ms. Garza, your rebuttal to Mr. Stanton’s case—the rebuttal that does not include your middle finger.’

  ‘Two generations of women have grown up with total control over their reproductive decisions, both contraceptives and abortion. If men get to vote on our right to abortion, they’ll take that right away from us. Then they’ll take the right to use contraceptives. Because men want desperately to control women—our lives, our liberties, our work, our pay, our sexual activity, our bodies, and most of all, our wombs.’

  Mr. Stanton: ‘Trust me, I don’t want anywhere near your womb.’

  The class laughed. Ms. Garza did not.

  ‘Stanton, you’re just mad because women won a right to an abortion.’

  ‘I’m mad because the liberal justices hijacked the Constitution—they made it up!’

  ‘You don’t know that.’

  Mr. Stanton pointed down at Book. ‘He said so in his last book.’

  Another round of laughter.

  ‘How do you know I’m right?’ Book said.

  ‘Because you’re down there lecturing, and we’re up here taking notes.’

  More laughter.

  ‘How do you know I’m not just another tenured professor pushing my personal political beliefs on his captive audience of impressionable students?’

  ‘Because you’re not teaching over in the English department.’

  The entire class laughed and let out a collective sigh of relief when the bell rang. They rose as one and gathered their belongings. Book yelled over the noise.

  ‘Read National Federation of Independent Business v. Sebelius, aka Obamacare, for the next class.’

  The mass of students parted like the Red Sea before Moses. Half rushed for the doors. The other half surged down to the front and around Book, peppering him with questions and pushing copies of his latest book, Con Law: Why Constitutional Law is the Greatest Hoax Ever Perpetrated on the American People, for him to sign. It was currently number one on the New York Times nonfiction print and digital bestseller lists.

  ‘Professor, would you sign your book for my mom? Her name’s Sherry.’

  He signed the book with a Sharpie. Another came forward.

  ‘Sign my book, for my dad. Ken.’

  He signed. Another hand came forward.

  ‘Sign my Kindle.’

  ‘Your Kindle?’

  ‘I have your e-book on it.’

  He signed her Kindle. She then stepped close and held out her cell
phone in front of them.

  ‘Can I take a picture of us? For my dad? He said when you’re on the Supreme Court—’

  Book had made many shortlists of potential candidates.

  ‘—you’ll straighten those crazy bastards out.’

  She snapped a photo.

  ‘My dad never misses you on those Sunday morning talk shows. He loved that line yesterday on Face the Nation—’

  Book had participated via a satellite feed from the local Austin studio.

  ‘—when you told that senator that you were neither liberal nor conservative, Republican nor Democrat, but that instead you were the last known practicing Jeffersonian in America.’

  ‘It wasn’t a line.’

  The students drifted off. Book gathered his casebook and notes and walked out the door and down the narrow corridor crowded and noisy with aspiring lawyers chatting about their lucrative job offers from large law firms. Thirteen years before, he had walked the corridors of Harvard law school, aiming to do something important with his life, perhaps even to change the world. But not to get rich. Money had never motivated him. He had found that he needed few material things in life. He lived in a small house near campus. He had acquired the Harley secondhand and made it his own. He had never owned a car, and he no longer owned a suit. Having things meant nothing to him. Doing things meant everything. And he did everything at a fast pace.

  Because he knew he didn’t have much time.

  Chapter 2

  ‘Get a haircut, Bookman.’

  Book took the stairs two steps at a time, so he was quickly past the white-haired man dressed immaculately in a suit and tie walking down the stairs. He was the dean of the law school.

  ‘Right away, Roscoe.’

  Tenure had earned Book a fifteen-foot-by-twenty-foot office, a lifetime salary, a secretary, and the right to wear his hair long. He arrived at the fifth floor, turned a corner, ducked between students, and entered the front room of the two-room office suite where a middle-aged woman wearing reading glasses secured to her neck by a glittery strand of beads sat at a desk and held a phone to her ear.

  ‘Here he is,’ Myrna said into the phone. She covered the mouthpiece and whispered, ‘The police. Again.’