From Impatience to Insight

No title is a step backward for the draft, I think. The reader might want to know what you have to say.

We've been trying to find a way to turn your insights into new ideas about law, but his draft returns us to the personal experience of discovering a problem rather than actually thinking about it.

Perhaps this is, in the end, the essay you want to write. But the reality of the problem you have in hand won't solve itself, and is worthy of your attention.

Title

The Last Day

He urged me to think about all the good state governments can do for protecting fundamental rights, all the people who are still actively fighting for the rights of minorities, and how much time I have in my legal career to make a difference. However, he was not very convincing.

I'm not sure whether it was the tiredness in his voice or his subtle suggestion, in not so many words, that people die all the time that left me feeling just as hopeless.

[How do I end this on a more positive note given that I do not feel very hopeful about the state of Constitutional Law...?]

I think there should be a way to gain more of the promise opened by the first draft. Let's talk it over and see if we can come up with something.

The Myth of Constitutional Law

It was unfathomable to me at the time that the only place I would be able to find my basic rights as a United States citizen was shoved into legal opinions that most people never even read.

Unsurprisingly, one glance at Thurgood Marshall's dissent that was carelessly skipped over on my first read informed me how dire the consequences of this opinion truly were. As Kimberlee Crenshaw so gracefully put it this semester in her critical race theory lecture, "reform and retrenchment." While Brown may have been reformative, San Antonio was the retrenchment waiting to happen.

What I Learned

This draft does an excellent job of clearing away the brush so that we can see clearly the central issue on which the next draft can focus. If we take legal realism seriously—which in the rest of law school, as we have discussed, we absolutely do—then we have as axioms Chief Justice Hughes' statement that "the Constitution of the United States means what five votes on the Supreme Court say it means," and that the opinions collected in the US Reports are rationalizations for results otherwise arrived at. How to square that with our belief in the rule of law and the persistence of our individual and civil rights is your central problem, as it is for every thoughtful student in our quite exceptionally realist system of legal education.

But the Constitutional Law course often proceeds as though the problem were somehow not acute, were being magically solved somewhere off the set, or were somehow less important than "learning the law." That whole conception is deficient, which is why a sensible teacher cannot carry it through, and winds up—under your questioning—having to treat the matter as one of "hope." There is, however, more to it, or there had better be. So that's the next draft, it seems to me.

Something I Learned In My 1L Constitutional Law Class

-- By ShianneWilliams - 16 Feb 2023

"Adult Advice"

Growing up in Dorchester, Massachusetts, meant that my parents sat me down at a very young age to start giving "adult advice," as they used to call it.

"Don't talk to strangers."

"Respect your elders."

"Definitely don't talk to strange men."

The advice I received became more specific and firm as I got older.

"When you go out, never put down your drink."

"Always check the license plate of the uber you are getting into."

"Never fight back with the police, but make sure you know your rights."

My 9th grade US history class was the first time I read about the Bill of Rights, and it seemed to make a lot of sense at the time. I saw the right to free speech, the right not to be unreasonably searched, the right to a jury, and that there may have been some other rights not written down. I did not really think much more about it, and at the very least, I thought my parents would stop nagging me because I could finally say that I "knew my rights." While I did not bother to put them to memory, I went on in life assuming that the worst-case scenario was having to conduct a quick google search. I never questioned whether I knew what my rights were because how could I not? It was unfathomable to me that the only place I would be able to find my basic rights as a United States citizen was shoved into legal opinions that most people never even read.

The Cold Call

I will never forget one of my most difficult cold calls. My Constitutional Law professor was kind enough to email us at 9 pm the night before we were on call, so it was only half a jump scare when I heard my name called. This is more or less how it went:

Professor Greene: "Shianne Williams. Is there a constitutional right to education?"

Inner thoughts: What an easy question. We had just read San Antonio Independent School District v. Rodriguez, which told me that education was not recognized as a fundamental right under the 14th amendment.

Me: "Nope."

Professor Greene: "Are you sure about that?"

Inner thoughts: What is he talking about? I'm pretty sure I did the right reading, and I'm definitely sure that the supreme court held against education as a fundamental right.

Shi: "I could be wrong, but I was pretty sure that the reading from last night said that it is not explicitly mentioned in the Constitution and not necessary for the exercise of first amendment rights."

Professor Greene: "So how do we handle Brown v. Board of Education."

Inner thoughts: Game over.

I wrestled back and forth with the right to education versus the right to exist in the same space as white people. I was angry with my own conclusions because they did not make any sense. How could there be no right to education when this is what people have been fighting for decades? After my cold call ended, I returned to the San Antonio case for a second read. One glance at Thurgood Marshall's dissent that was carelessly skipped over on my first read informed me how dire the consequences of this opinion truly were. As Kimberlee Crenshaw so gracefully put it this semester in her critical race theory lecture, "reform and retrenchment." While Brown may have been reformative, San Antonio was the retrenchment waiting to happen.

Dobbs

Sadly, the right to education was just the tipping point. Not long after this class session, we started reading the string of landmark abortion cases, which confused me even more. In Roe v. Wade, the Supreme Court told me I had a fundamental right to get an abortion in the first trimester. However, within 24 hours of reading Roe, I was slapped with Dobbs, and the sliver of a right to my body that I thought I had was gone. How could the Supreme Court tell me I had a right and then take it back?

The day we had our lecture on Dobbs confirmed once and for all that I had no idea what my rights were. Even worse, I found out that I would only know my rights if the Supreme Court decided to extend the kindness of informing me. And if you thought it could not get worse, the Supreme Court has decided that they can declare fundamental rights and then take it back like a child who says something they did not mean.

What I Learned

The first thing I did after realizing my rights were hidden in the minds of the Supreme Court justices was call my parents. Boy, was I ready to tell them how unhelpful their advice had been! The conversation went something along the lines of, "Mom, Dad, I am sorry to inform you that I will never be able to know my rights because some white men decided to make the 9th amendment extremely vague." There was never any google search that could help me, and seeing my cold call question regarding the right to education as "Question #1" of my professors' 2020 exam made me feel better about not knowing what to say that day in class.

The last day of Constitutional Law was weirdly frustrating to me. I still had so many questions about why we interpreted the constitution in particular ways and where we were supposed to go from here. The last question I posed to Professor Greene was simply, "Are you hopeful?" His answer was simultaneously honest and heartbreaking. He was not hopeful but also made sure to leave me with several tangible first steps toward progressive change. He urged me to think about all the good state governments can do for protecting fundamental rights, all the people who are still actively fighting for the rights of minorities, and how much time I have in my legal career to make a difference. I may not know my rights, but hey, at least now I know.