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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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> | | | | 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:
| | | 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. | >
> | Third, the law student visits an old friend, who, regarding the student’s newfound studentry, asks him: “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 deftly that the aristocracy patronized him all the same. | | | | |
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< | “Yes,” says the law student. “Law school seems in that regard very much like Goya.” | >
> | “Yes,” says the law student. “The law can be in that regard very much like Goya.” | | |
2. In which the law and law-studentry are applied to matters of life and death | |
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< | 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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< | 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.
This is, not surprisingly, where you lost your terseness and skill in editing. Compress this, so that the Gettysburg address can be 30% as long as what you write. Nothing will suffer.
Seconds later, the law student explains his joke: Do the words about the picture obscure the picture of the man, or does the picture of the man illuminate the words about the picture?
Isn't it almost always a bad idea to explain a joke?
The figure-ground aspect of your illustration seems to me
well-enough judged. But why make so much as a preliminary
assumption that the sorrow of Roger Brooke Taney was either for the consequences of Scott v. Sandford or for the coming of the war? Perhaps it would be much easier on the facts to conclude that his sorrows were personal, that his passionate support of slavery was absolutely unabated, and that when war came he saw it not as a consequence of his life's work, but as the villainy of Lincoln. Even so relentlessly anti-personal a biographer as Carl Brent Swisher seems to me to leave us with that as a self-evident conclusion.
Put another way, neither the imaginary opinion nor the real one really explain what “a life” is.
But do you think that this fact, about these two texts, means that no text can really explain what for these purposes a "life" is?
Third, the law student’s professor exclaims: “That Wittgensteinian enough for ya?”
The answer is no. Most of what law professors say about Wittgenstein is largely the result of not thinking about what he thinks, or reading what he says, or knowing anything. Generally speaking, there's a good reason for that: they haven't tried. I have tried. See Zapf & Moglen, Linguistic Indeterminacy and the Rule of Law: On the Perils of Misunderstanding Wittgenstein, 84 Geo. L. Rev. 485 (1996). Chris Zapf, with whom I tried, was a student in this course when we began trying together.
And the law student recalls a biography about the Austrian in the trenches of the Eastern front, facing death and reading Tolstoy. The law student thinks the Austrian was a romantic at heart.
You might also be interested in a novel about this romantic, better than any biography, Bruce Duffy's The World as I Found It.
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> | Third, 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, and an incarcerated boy, who, many years ago, was my friend, and who, when last I saw him, wore an orange jumpsuit, now an incarcerated man. | | |
3. In which life and death are applied to the law and law-studentry |
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