Brooks-Lotello Collection

by Ronald S. Barak

  “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.”

  He turned a bit toward the gallery and extended his arm, as though to include the spectators in his next remarks. “Today, we are spread far and wide. There are three hundred million of us, if I may borrow Mr. Esposito’s calculus. A true majority today is no longer manageable. If our framers meant a true majority for all time no matter the circumstances, then they would have been guilty of providing for the certain demise of the very right of the governed to chart our course. As clearly they were advocating.”

  He returned face-front and gripped the lectern. “However, one of the primary cornerstones of our Constitution is elasticity. Our Constitution is meant to be sufficiently flexible to serve over time as circumstances logically warrant.”

  “That’s hardly a settled question,” said Chief Justice Trotter.

  Brooks had anticipated such an interruption at this juncture. “For purposes of the issues now before this Honorable Court, I believe it is settled. As I will endeavor to demonstrate if I might first be permitted to conclude my remarks?”

  Trotter waved for Brooks to proceed.

  Brooks continued. “We must remember: We are a republic, not a democracy. Majority means fair representation, not one for one. So, we use an electoral college to elect our Presidents. And we have but 435 members of our House of Representatives and 100 members of our Senate to run Congress—the plaintiff in this lawsuit. They don’t like that 50,000 delegates adopted and ratified the 28th Amendment to the Constitution. But they are quite content for 535 individuals to file suit to strike it down.”

  Finally, Hirschfeld circled and moved in. “That’s all well and good, Judge Brooks, but aren’t you just crafting all of this out of whole cloth?”

  Brooks wondered how long Hirschfeld would be able to contain himself. He was visibly agitated. Given his circumstances, how could he not be? This was the moment Brooks had dreaded. “Not at all, Justice Hirschfeld.”

  “How are you so sure of all this?”

  “It’s right there in the history books.”

  “What are you talking about?”

  “The vote to adopt our Constitution.”

  “What about it?”

  “It was by a vote of 30 to 27. That was the vote of the delegates to the Constitutional Convention of 1787.”

  “Yes, but how were those delegates selected? Weren’t they selected by a majority of the voting population?”

  “No sir. They were selected by the legislative bodies of the states that then comprised the union.”

  “Correct, by a majority of we the people of the United States.”

  “No sir. By a majority of each state. We the people of the United States never elected those delegates. Just like they don’t elect the President today. The fact is that the term ‘majority’ as we have used it throughout American history, is quite different than the common meaning of that term.

  “Under our Constitution, each state receives two seats in the U.S. Senate. So, New York, which has 33 times the population of its neighbor, Vermont, receives only the same representation in the Senate as Vermont. Yet the notion of ‘majority’ still predominates our sense of representation. And if a majority of the governed were not okay with this approach, they’d do something about it.”

  Hirschfeld shifted in his seat, his expression darkening.

  “Haven’t you just disproved your very argument? The gov erned have very little to say in how they’re governed. And yet they soldier on.”

  “Only to the extent, and for so long as, they choose to delegate to their representatives. But from the very formation of this extraordinary republic, they have preserved their right at all times to intervene when not satisfied with how their representatives are performing.”

  “That’s anarchy,” Hirschfeld barked. “You’re talking revolution, not the rule of law.”

  “If our country did not allow for some degree of what you speak of as revolution,” Brooks countered, “our country would not be here today. We’d still be an appendage of Great Britain.”

  He glanced at his watch. Time was short.

  “Justice Hirschfeld, do you doubt for a minute that a majority of our governed are disenchanted with our Congress today, and support the 28th Amendment?”

  “That isn’t the point.”

  “Ah, but it is. NoPoli took great pains to come up with 50,000 delegates from all around the country genuinely representing a fair cross-section of our country. NoPoli didn’t need to hunt those delegates down. They freely volunteered. The only requirement NoPoli imposed was eligibility to vote in federal elections. And each state chapter of NoPoli selected its delegates—and this is the key point—in the very same way that, once upon a time, we selected our delegates to replace the Articles of Confederation and adopt the Constitution we enjoy today.”

  Hirschfeld wasn’t budging. “There’s a crucial difference, Judge Brooks. Citizens of each of the states voted for their representatives who in turn voted for their constitutional delegates. That did not happen here. Citizens of each of the states did not have the opportunity to vote for the NoPoli delegates.”

  “I must respectfully disagree with you, Justice Hirschfeld. Every citizen in every state was just as free to join NoPoli and vote for the NoPoli delegates from their state as they are free to register to vote in their state.”

  “But did they know that?”

  “Respectfully, Justice Hirschfeld, the impending NoPoli convention did not take place on the dark side of the moon. There were press releases, flyers sent out by snail mail, email, Twitter, Facebook, and virtually every other social media platform you can think of. There were television and radio advertisements, interviews, editorials in local and national newspapers. The ability to participate in the adoption and ratification of the 28th Amendment was publicized every bit as much as any other aspect of our electoral process.”

  “That evidence is entirely anecdotal,” Hirschfeld said.

  “I beg to differ, Your Honor. The supporting details are in our briefing papers.

  “I see my allotted time is almost up. Please allow me to sum up. If the government is to serve the governed, and not the other way around, and if this Court is not to lose its compass and intrude on we the people—as our elected representatives have certainly been doing—then the 2
8th Amendment, long the missing amendment to our Constitution, must be allowed to stand. Judgment in this case should be entered for NoPoli. We the people thank you.”

  Brooks heard a smattering of applause as he turned away from the lectern and headed for his seat in the well. Chief Justice Trotter banged his gavel to quiet the crowd, then said. “Thank you, Judge Brooks. We are adjourned until the scheduled announcement and reading of our decision or decisions on Monday.”

  It seemed everyone in the Courtroom rose at once. Except Hirschfeld. Brooks watched his old friend, as he had done on Tuesday, visibly hold up the universal “call me” signal to his cheek and ear.

  CHAPTER 75

  Thursday, May 8, 3:30 pm

  THOMAS RETRIEVED the van and headed back to the cabin. He tried to use the video app to check in on the girl, but she and her shoe had apparently fixed that for good. He admired her gumption, yes, but that didn’t matter. He could not let her insulting remarks go unchallenged. She doesn’t know about my relationship with Mother. Or Father. How could she? Especially since Mother is no longer able to tell anyone about that.

  He was also troubled by the number of people in Court today who seemed to be looking for someone. He pondered whether that someone could be him, whether someone had outed him. The old man? Reyes? Someone else?

  His mind returned to the girl. He had to keep his guard up. Don’t let her shake you. As much as Thomas desperately wanted to be in Court Monday to personally witness the outcome of his efforts, that could prove dangerous if Reyes and his FBI gofers were there again, possibly looking around for him. That would require more thought.

  He hadn’t missed Hirschfeld’s signal to phone him. He thought it best to let Grandpa stew overnight, to remind him again just who was in control. The call he had to make today was to Reyes.

  * * *

  Brooks answered the incoming call from Lotello. “Detective,” he sighed, “does everything have to take so long?”

  “He wasn’t able to see me until 12:30. By the time I finished there, you were already back in Court. I had to wait until you were out.

  “And?”

  “I was impressed. He’s done this kind of work before. He’s sharp, knows what he’s doing. He’ll take the job if everyone agrees on the terms.”

  “Who’s everyone?”

  “He and his lawyers, Cassie’s family and the kidnappers.”

  “Did he offer any thoughts about getting them on board?”

  “He said it would all come down to their vetting him, assessing his integrity. He’s sure they’ll insist on some ‘come to Jesus’ meeting with him before they decide. I think he’ll be able to handle that if these people are rational.”

  Brooks heard the satisfaction in Lotello’s voice. And a residual bit of nerves as well. “Let’s back up. Please take me through your full conversation with Lance. From start to finish. Don’t leave anything out. Put me in the room with the two of you.”

  “Okay.” Lotello paused.

  Brooks could hear Lotello flipping through the pages of his trusty notepad. He didn’t say a word until Lotello finished. “That’s about it,” Lotello said.

  “Interesting man,” Brooks said. “His lawyers email us a draft agreement in the morning. We work through any changes we want with them. When we’re agreed, Hirschfeld gets the papers to the kidnappers for their reaction. Once we’re hopefully all in accord, they deliver the girl to Lance. How soon do you anticipate we can get Cassie away from them and into his hands?”

  “Hard to say yet. It depends on how long it takes to get signed copies of the agreement exchanged. Even then, my guess is that they’ll want to hang onto Cassie until the last minute.”

  Brooks exhaled. “Probably so. I’ll speak to Hirschfeld tonight.”

  “How will he reach them,” Lotello asked, “now that Court’s dark until Monday?”

  “Not sure,” Brooks answered. “Hirschfeld signaled them to call him at the end of the Court session this afternoon. I assume they saw the signal too. I don’t know if or when they’ll respond.”

  “By the way, Judge, Lance said you would explain to me the two dollars he required me to leave with his receptionist, one dollar for each side.”

  Brooks thought about that for a moment. “Required no doubt by his lawyers, to protect Lance from being characterized as an ‘officious intermeddler.’ One who voluntarily comes to the aid of another actually has a greater liability if something goes wrong than if he was hired to help. You said you paid the two dollars, right?”

  “Madison did.”

  “As in your daughter, Madison? You didn’t mention she was there with you. Explain, please.”

  “Sorry. No, of course Madison was not there. But she’s pretty much sorted things out on her own. First, Cassie didn’t show for their long-planned Court outing together. Now, Cassie’s not answering any of Madison’s calls or texts. Nor is Cassie’s mom. Cassie and Madison are best friends. Madison knows Cassie wouldn’t just ignore her. Madison wants to help. I understand, but Madison’s been driving me nuts. I’m not about to involve her, but I thought I’d subtract the two dollars from her allowance, let her think she’s helping.”

  “And what if things don’t turn out so well?”

  “I won’t consummate the subtraction unless and until we first get Cassie back safe and sound.”

  “With everything going on, you have to worry about this too?”

  “Not a problem. With a pre-teen daughter and a wife who’s a lawyer, I’ve learned to multi-task.”

  “You’re sure you can?”

  “Didn’t say I was good at it.”

  “Better you than me. I have my hands full with just a wife. And a dog and a cat.

  “Good work, Detective, but it’s just a start. We’re going to be very busy the next few days. Hopefully.”

  “Your Honor. What if we’re not able to persuade Hirschfeld and his family to go this route? Or if Hirschfeld’s not able to persuade Cassie’s captors to do so?”

  “At the moment, I don’t have a clue. Keep your fingers crossed that we don’t have to answer that question. Email the agreement to me in the morning as soon as you receive it. I’ll be in touch right after I speak with Hirschfeld.”

  * * *

  Nishimura knew that Reyes had a reputation for generally cooperating with the media. And for chasing the pretty ladies. She didn’t know him well, but she’d wangled a meeting with him a couple of times on prior stories. It was hard getting the first meeting, but when she didn’t shy away from his thinly-veiled innuendos, the second one came easier. Along with his private cell number.

  She left a message as soon as Court adjourned. She didn’t say what it concerned, only that it was urgent. If she didn’t hear back by the end of the day, she’d try again in the morning. This time she’d raise the ante, mention that her calls concerned his interest in Congress v. NoPoli.

  If she were correct, he’d return the second call, if not the first. If he didn’t, she’d have no choice but to then play her Webber card. She reminded Joey to get used to living out of his car for the next several days. And sticking to Webber like glue.

  CHAPTER 76

  Thursday, May 8, 3:50 pm

  SO FAR, Reyes had nothing to show for his suspicions concerning Thomas. Neither he nor the FBI had spotted him in the Courtroom. If he were ever there. But, of course, it had been years since he had seen Thomas. And he remembered Thomas’s special ops skill when it came to disguises.

  Reyes had also been disturbed by the incident with that oddball Webber outside the Courthouse. The man had instantly morphed from aggressive to flustered. It was strange enough that Reyes had asked the FBI to do some background on Webber. When they reported back that Webber was the son-in-law of Supreme Court Associate Justice Arnold Hirschfeld, Reyes had become even more uncomfortable.

  First, a vague message from someone almost certain to have been Thomas. Now, out of nowhere, he had been approached by the son-in-law of a Supreme Court Justice.
He wanted to turn the FBI loose, find out if Hirschfeld’s family were going through anything out of the ordinary, but he decided that might be unwise. The FBI was already wondering about his interest in Thomas.

  And now this nondescript call from that looker over at NBN-TV. His instincts told him to put her off. At least for now. Meanwhile, he had to think about bringing this up to POTUS again.

  He decided to sleep on it for the night. If he could sleep.

  * * *

  Hirschfeld was scrambling to figure out his next move.

  Whatever had prompted the call from the hijackers asking him about the White House Chief of Staff? He hardly knew the man.

  He also had to work around the schedule Trotter had set for the Justices through Sunday: A roundtable discussion Friday morning to poll the Justices to see where they each stood, at least preliminarily; with a follow-up meeting Saturday morning to see if anything had changed. Majority, dissenting and possible concurring opinions had to be assigned, written and shared. What normally was allowed around three months had to be completed in this instance in three days.

  Obviously, Hirschfeld would have to attend each of these sessions, impinging on everything else he had going on. Had the kidnappers spotted his signal for another call? Would they respond? How quickly? What exactly would he say? As yet, he had no idea. And right now his family was waiting for him at Jill’s home. He didn’t know what to say to them either.

  * * *

  Webber was upset when he left the Courthouse. He needed to clear his head. He started walking.