Con Law Read Free Page A

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.’
    ‘Andin
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 largeBoston 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