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| META TOPICPARENT | name="FirstEssay" |
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| | | 1. In which the law and law-studentry are discussed | |
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< | The law does not belong to the state: rather, it is the limit of the state. Where in the state is the law to be found? | >
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First, in the casebooks, that is first-in-time: The law student finds the law first-in-time in the casebooks in the bleary hours of the night. Or, since the law student prefers the ritual of falling asleep with his wife to that of reading late into the night, he finds the law first-in-time in casebooks in the bleary hours of the morning. He learns, in a red book about Civil Procedure, that casebooks do not contain law, they contain “evidence of the law.” Swift v. Tyson. | |
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> | Second, the law student, for a class called “ConLaw,” reads a case about abortion. In a dissent, the law student reads: | | | | |
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So first in time might be the statutes, which are the law and not merely evidence. It might be worth ruminating a moment on the peculiarity of our way of learning, which starts most often, as you say, with the footprints rather than the animal that leaves them, which is the state whose apparent invisibility you are observing.
Second, the student recalls a trial, the boy who shot up the student’s high school. The student remembers his parents’ divorce proceedings and his great-grandmother’s will—the two silver bars devised to the student’s mother when the student was four years old. But those are not the law. They are alternating weekends, silver bars propping books, and a boy, who, when last I saw him, wore an orange jumpsuit, now a man. | >
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> | The dissenter connects a decision about abortion to a decision about the citizenship of “the unhappy black race.” Since he was a slave, Mr. Dred Scott was not a citizen, and therefore he did not have “the privilege of suing in a court of the United States in the cases specified in the Constitution.” Dred Scott v. Sandford. Inspired by the austere logic, the law student re-imagines Casey:
Conceive, from “com-,” intensive prefix, and “capere,” "to take.” The mother who conceives is taken with child. The fetal child is the actor that takes. We rule that the ability to take, that is, to have a discernable effect in the world impossible but-for the presence of the actor, constitutes life. | | | | |
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< | Third, the student recalls a black-stone stele, carved in dead letters. The student notes the stele’s phallic shape. | >
> | Life is not synonymous with citizenship. The word “citizen” means a person of the United States. The question before us is, whether the class of lives described by petitioners are constituent members of this sovereignty. We think they are not. On the contrary, they are a class of potential citizens subordinate to those beings who have entered into the polity of the United States. Although lives, therefore, they are a class of lives worthy of protection only as potential citizens.
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> | Third, the law student visits an old friend, who asks him, regarding the student’s newfound studentry: “Have you learned meaning of justice yet?” They laugh. Next, the friend asks: “Then what have you learned?” The student tells his friend about a sad old judge whose sadness became a symbol for some—a symbol for meanings both that the judge foresaw and those for the judge unforeseeable. He tells his friend about a portrait. The friend interrupts. “Like Goya,” the friend says. The friend explains: A Spaniard who refused to flatter his patrons, painting instead their ugliness, but so painting so skillfully that the aristocracy patronized him all the same. | | | | |
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Not enough. You almost say something, but whatever it is you need to say it more.
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> | “Yes,” says the law student. “Law school seems in that regard very much like Goya.” | | |
2. In which the law and law-studentry are applied to matters of life and death | | | This is connected with the fact that no part of our law is also a priori. Everything legal could be illegal. Everything we legislate at all could be otherwise. There is no order of things a priori.
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< | First, the law student, for a class called “ConLaw,” reads a case about abortion. In a dissent, the law student reads:
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< | The dissenter connects a decision about abortion to a decision about the citizenship of “the unhappy black race.” Since he was a slave, Mr. Dred Scott was not a citizen, and therefore he did not have “the privilege of suing in a court of the United States in the cases specified in the Constitution.” Dred Scott v. Sandford. Inspired by the austere logic, the law student re-imagines Casey:
| | | The mother is, from the moment of conception, with a life. Conceive, from “com-,” intensive prefix, and “capere,” "to take.” The notion that one may be taken with something is incompatible with the notion that nothing has taken the one who has been taken. If something takes, that thing must have the ability to take. We rule that the ability to take constitutes life.
Life, even human life, is not synonymous with citizenship. For a citizen is one of the “people of the United States.” The life-in-the-mother, however, is not a person of the United States. It has not entered society. Before viability, it cannot so enter. While the State maintains an interest in potential life, and while the thing conceived within the mother is a life both actual and potential, the potential life in which the State maintains an interest must be cognizable to the State. Since the life-in-the-mother has not entered into society, since it cannot nor does it enjoy the benefits of that society, except as mitigated through the mother, it is not a life that is within society. The life-in-the-mother is not, in any meaningful way, in the United States. Prior to viability, the State does not have an interest in, or in the disposition of, the life-within-the-mother greater than that of the mother. |
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