The Amendment Killer (Brooks/Lotello Thriller)

by Ronald S. Barak

  CHAPTER 72

  Thursday, May 8, 1:00 pm

  BROOKS LOOKED on as Chief Justice Trotter welcomed everyone to the fourth and final session and invited Esposito to begin his presentation. Brooks knew it would all come down to this session. And whatever developed concerning Hirschfeld’s granddaughter.

  Esposito spread out several notepads on the speaker’s podium in front of him and looked up at the Justices. “If it please the Court,” he began. “NoPoli asks this Court to believe that Article V limits only the way in which the government can amend the Constitution. While the governed are free to amend the Constitution however and whenever they wish. Isn’t that mighty convenient?”

  Esposito’s opening hardly surprised Brooks. It was an old but sophomoric ploy. When you’re worried about an opponent’s position, restate his argument in an exaggerated and more vulnerable way—create a straw man—then attack the fabrication. It worked better in politics than in courtrooms, especially this one, but Brooks couldn’t leave it to chance. He began scribbling notes as Esposito continued.

  “The Congress of the United States sees it differently,” he said. “First of all, ladies and gentlemen, NoPoli’s contention is simply not what Article V provides. In plain, straightforward English, Article V—”

  “You lost me there, counsel,” Taser said. “Article V may be brief. I’ll give you that. But plain and straightforward? You’re kidding? Right? Just saying. Carry on.”

  “Yes, Your Honor. Article V sets forth two, and only two, ways to amend the Constitution. It does not distinguish between who proposes the amendment. It does not contain one word about that. Not one court decision in the history of the United States has ever drawn such a distinction. Ever.”

  “Excuse me, Mr. Esposito,” Gaviota interrupted. “Didn’t Ms. Klein already argue, and rather effectively I might add, that this Court does not require a prior published precedent in order to advance a supposedly new point? As she eloquently put it, if that was necessary, the law would be rather static. And, how would the point have been made the first time?

  “Point taken, Justice Gaviota.” Esposito smiled. “Nevertheless, wouldn’t you think that if the framers of our Constitution had intended such a novel thought, they would have said so— spelled it out—right there in Article V? However, they didn’t. Not. One. Word.”

  Brooks smiled at Esposito’s exaggerated attempt at dramatic effect, then glanced up at the Justices. None of them seem to share his amusement. Nor did any of them counter Esposito’s argument.

  Seemingly encouraged by the silence, Esposito moved on. “Without more, such observation requires this Court to invalidate the 28th Amendment. But there is more. Much more. It’s true that our constitutional framers engaged in some limited colloquy about a theoretical broader power of the governed to amend the Constitution. However, in addition to the fact that they decided, after such discourse, not to incorporate a single word to that effect in Article V—”

  “Is it not possible, Mr. Esposito,” Lukesh asked, “that the drafters of the Constitution considered this so fundamental as not to require that it be spelled out?”

  “Respectfully, not in my opinion, Justice Lukesh. But it is clear that any notion of amending power on the part of the governed was expressly and consistently alluded to in terms of requiring a majority determination of the governed. In sharp contrast, the 28th Amendment was ratified—using that word ever so generously—by only 50,000 members of NoPoli, a rather modest number in comparison to more than 300 million Americans. In fact, that represents less than two one-hundredths of one percent of the population. If my math is correct, that’s a little bit short of a majority.”

  Trotter leaned forward. “Just a minute, counsel. Are all of those 300 million Americans of voting age, and registered to vote?”

  “I should, but don’t, have that number at hand, Chief Justice Trotter. Still, there is no denying that NoPoli’s 50,000 delegates comes up a far cry short of a majority of the number of Americans registered to vote. And the lack of any semblance of a representative majority is worse. This modest 50,000 vote was open only to those elitist card carrying members of NoPoli. I’m reminded of sadder times in our history when you had to be a white male to vote.”

  Well done, Brooks thought. Play the race card. But the elitist card? You’ll regret that one, Raul. Actually, you’ll regret the race card too.

  “For any or all of the above reasons,” Esposito concluded, “Congress respectively contends that this document which NoPoli contends is the 28th Amendment to the U.S. Constitution is an insult, not only to all of America’s public representatives, but to all Americans who were not entitled to vote on this matter and who believe in our Constitution as it was enacted more than two hundred years ago. Thank you for your attention.”

  Esposito started gathering his papers. A voice from the bench stopped him.

  “I’d like to ask you a question, Mr. Esposito, if I may.”

  Esposito glanced up and respectfully smiled. “Of course, Justice Nettleman.”

  “Do you think the views of the plaintiff here—Congress—deserve any more weight than the views of any other plaintiff would?”

  “Thank you for asking, Justice Nettleman. I do. After all, Congress is one of the three branches of our federal government.”

  “Yes, I understand that, but is that relevant when they are not legislating, but merely bringing a lawsuit as any other plaintiff might? If a member of Congress slipped on a banana peel and brought suit for damages, would that Congressional plaintiff deserve any more favorable consideration than a private citizen bringing such a lawsuit?”

  “Perhaps not in that instance, Your Honor. But this isn’t a lawsuit brought by one member of Congress in his or her private capacity. It’s brought by the entirety of Congress in its constitutional capacity.”

  “Interesting. Thank you, Mr. Esposito.”

  “Thank you, Justice Nettleman. My thanks as well to all of the Justices for hearing me out.”

  Brooks glanced up at Hirschfeld, who seemed lost within himself. Stone-faced. He’d not said a word during Esposito’s presentation. Brooks wondered if his friend weren’t lying back there in the weeds, setting a trap for him. Forcing Brooks to go first so Hirschfeld could gain the last word. Especially if Brooks blundered. Brooks recalled the premise of his remarks to Arnold that very morning: He who goes first loses. He grimaced at what there was to lose: The young girl? The 28th Amendment?

  Trotter returned Brooks to the present. “We’ll be in recess for ten minutes, after which we’ll hear from Judge Brooks on behalf of NoPoli.”

  CHAPTER 73

  Thursday, May 8, 1:45 pm

  NISHIMURA TURNED to her two talking heads. “Chris. Steve. It’s not hard to understand why Esposito has the track record he does. I was so impressed. How do the two of you see his performance?”

  “Esposito held up well,” Elliott said. “That will be a hard act for Brooks to follow. But it sometimes comes down to who has to go first and who gets to go last.”

  Nishimura turned to Kessler. “What about you, Steve? Your turn to go last. For now.”

  Kessler offered his customary smile, but Nishimura couldn’t help but notice the apparent concern in his eyes. “Well, Anne, I don’t have much experience when it comes to grading oral argument in the U.S. Supreme Court, but I think Esposito did do a nice job.”

  “Nice?”

  “Well, he is engaging. I’ll give you that.”

  “So is Charles Manson. But do you think Esposito made a positive impression on the Justices, convinced them of Congress’s position, that enactment of the 28th Amendment was unconstitutional?”

  Kessler took a moment to respond. Buying time, Nishimura thought.

  “I agree with Chris. Esposito’s performance was very . . . Goliath-like. We’ll just have to wait and see what the Justices think. My money’s still on . . . David.

  * * *

  Hirschfeld thought Esposito had acquitted himself qui
te well. He was relieved he didn’t have to come to his rescue. This way, Cyrus has to go first—at least as between he and I.

  * * *

  Cassie was trying to be as diligent as she could to manage her fear—to lower her stress and her blood sugar. She was trying so hard to make the most of a difficult situation. It wasn’t easy. Her fear lingered like an all-pervasive cloud hanging over her head.

  To calm her nerves, she had reorganized the location of some of the furniture in her prison cell to create a mini circuit training course, sprinkling in some stretching, push-up, and core and glute stations in between the circuit power walking. She preferred the variety of mixing in this circuit training with just sprinting laps in a straight line back and forth from one end of the room to the other. At least it gave her something else to think about.

  As she stretched to cool down from her latest workout, her mind wandered to what she and Madison had missed in the Supreme Court on Tuesday. Well, what she had missed. Madison no doubt had gone with her dad anyway. Now that Cassie was older and smarter, her poppy had been discussing the case with her, getting her ready for the big field trip. Not being there to see her grandfather in action after their preparation together only made her feel worse than she already did.

  And then . . . it hit her.

  * * *

  Thomas nursed his beer and thought about what he’d just watched. So far, so good. Maybe Esposito had turned a vote or two on his own. That would make life a lot easier for the old man. With his own flipped vote in the bag, that’d seal the deal.

  His mind drifted to the girl. He slipped a twenty beneath his glass and signaled to the bartender that he was stepping outside for a moment. Out on the sidewalk, he launched his video app. She must have heard the camera because she immediately looked right into the lens. She got up off the bed, walked closer, and spoke into the hidden microphone.

  “I know what you’re trying to do. You think you’re going to use me to get my poppy to do something you want in Court. That’s why you got my insulin from him and not my parents. You’ve been talking to my poppy. You can’t do that. It’s not right. You’re terrible. Worse than terrible. I bet even your mom can’t stand you.”

  Thomas could hardly believe what that little bitch was saying to him. How dare she question Mother’s relationship with me? Mother always loved me. Even if she didn’t always show it. Same with Father. There was no question about their love—or respect—for me. Who does she think she is, talking to me like that?

  “Here’s what I think of you and your camera, creep.” She reached down, tugged off her shoe, and threw it straight at the camera.

  There was a loud clank, a blur of static, and then both the video and audio went dead.

  Thomas was pissed, completely out of control, throwing all caution to the wind. Fuck it. I don’t care who might be looking for me. I’m going back in that Courtroom and watch the exchange between Brooks and Hirschfeld in person. End of discussion.

  CHAPTER 74

  Thursday, May 8, 2:00 pm

  “BREAK A LEG, Judge,” Klein whispered as Brooks rose.

  He smiled in response and walked unpretentiously to the podium. He carried not a single note or sheet of paper. Ignoring the cameras in his face, and the anticipatory buzz emanating from the gallery behind him, he took one deep breath and acknowledged the nine Justices.

  “Honorable Justices, thank you for your attention and for allowing me to assume the burden of carrying NoPoli’s—if not the people’s—message to you today concerning both the importance and the integrity of the 28th Amendment to the U.S. Constitution.”

  He ventured a glance at Hirschfeld, but received only a steely glare in response.

  “First, I would like to thank my esteemed colleague, Mr. Esposito, for assuming NoPoli unable to state its position on its own, and kindly volunteering to assist it in that regard. Seldom today do we experience such chivalry extended by one’s opposition. No doubt solely through innocent inadvertence did Mr. Esposito not quite correctly paraphrase NoPoli’s position, gracious and well-intended as I know he was.”

  Chuckles arose here and there in the gallery. Careful, this isn’t the time to play to the cheap seats.

  “Mr. Esposito attributed to NoPoli the ill-defined position that the governed are free to amend the Constitution quote however and whenever they wish. I didn’t bring any notes with me to the lectern, but I do believe nonetheless that those were his exact words. NoPoli has never taken such a position. If the Court will permit, I will endeavor to recite and present NoPoli’s actual three-part thesis, the very same that is set forth in its papers on file with the Court. And previously served on my esteemed colleague.”

  The chuckles had turned to murmurs. I’ve beaten that dead horse. Time to move on.

  “One, Article V sets forth two means by which the Constitution may be amended. Article V is barely a few sentences long, as Justice Taser correctly noted.” Brooks caught her smile out of the corner of his eye. “Nowhere does Article V state that its alternative two procedures are exclusive.

  “If the framers of our Constitution had meant Article V to be exclusive, I can only presume they would have said so. The written historical data is clear—if not simple and straightforward: our framers informally and formally debated Article V for six long months before agreeing on its language.

  “It would have taken them just a few seconds to add a short sentence to Article V stating that it provided the only two ways by which the Constitution could be amended, either by the government or the governed. If indeed that had been their intention.”

  Except for the creaking of seats and the whirring clicks of cameras, the gallery had fallen silent again.

  “Two, the same record, documented in the Library of Congress, the very same Congress that initiated this lawsuit, makes perfectly clear that a majority of the governed—we the people—can amend the Constitution with the same fundamental authority by which they originally adopted it. This is not a huge leap. It is the governed who created it. If they could make it, then they could also fix it. Amend it. Respectfully, that logic is not complicated.”

  “Excuse me, Judge Brooks.”

  “Of course, Justice Stone.”

  “My apologies for cutting in before you get to your third point, but I’m troubled by something you just said, and I don’t want to lose the moment.”

  “Certainly, Your Honor.”

  “You say that if the governed could make the Constitution, which no one questions, then it follows that they could also change it, amend it. Do I understand you correctly?”

  “You do.”

  “Well, how do you know that when they made it they didn’t intend a sense of permanence, and reliability, that even they couldn’t alter? In other words, how do you know they didn’t waive their right to amend the Constitution? Are you not engaging in rank speculation?”

  “Hmm…” Brooks could feel all eyes in the Courtroom on him. Perfect. He who goes first loses. After another few seconds of theatrical pause: “I think not.”

  Justice Stone sat back in his chair, looking puzzled, perhaps even a little irritated. “Sorry. Are you now acknowledging that we don’t in fact know that the governed can amend? The opposite of what you said just a moment ago?”

  “Not at all, Justice Stone. My apologies if I confused you. What I intended to say was that I didn’t think I was engaging in rank speculation. I firmly believe the governed never waived their fundamental right of amendment.”

  “And you know that how?”

  “As you, of course, know, Your Honor, our present Constitution is the second constitution in the history of our great country. It was adopted in 1787 and ratified in 1788. Our first Constitution, labeled the Articles of Confederation, was adopted in 1777. It lasted less than eleven years, at which time the governed decided to amend it by restating it in its entirety, with some notable changes, in the form of our present Constitution. Given that famous—or infamous, depending on your point of view�
�precedent, I submit that the governed would have spoken up loud and clear had they meant to waive any further right on their part to amend the governing documents of we the people— the governed.”

  “Touché, Judge Brooks.” Justice Stone’s air of puzzlement lifted. He now wore an appreciative smile. “I believe you were about to share with us the third leg in NoPoli’s thesis when I rudely inter rupted you.”

  “I was, thank you, Justice Stone. And my third point. Yes. Um, let me think.” Brooks feigned uncertainty, and drew the laughter he was after.

  “Ah, yes. Three, NoPoli is not a hypocrite. Just as our framers did not say Article V was the only way the governed can amend, it is true that they also did not say Article V was the only way that the government can amend.

  “However, the question of whether the government can amend outside Article V is not before this Court today. If and when such a question is raised, no doubt this Court will, in its wisdom, answer that question. After, hopefully, first taking into account this humble student’s observation that the government is supposed to work for the governed—not the other way around—and that our framers had that notion firmly in mind when they drafted Article V.”

  Brooks, readying for his finale, clasped his hands behind his back and straightened his shoulders. Hirschfeld still refused to look at him. “This brings us to the remaining two questions: What definition of majority would our framers have had in mind when they enacted our Constitution? And, with apologies to Justice Stone, would they have meant for that definition to have been set ‘in stone’ for all time?”

  He waited out the resulting laughter. “When our Constitution was enacted we were a relatively small nation by today’s standards—a relatively small populace situated in a relatively small geography. Arguably, the idea of a true majority, one vote per one citizen assembled in one venue for a one-time vote, was manageable. I hasten to repeat, arguably.”