Abortion, Academia, and Other Factions

Diary Entry: September 24, 2024

The national pastime of this 400-million-person country seems to be debating what a thin, 30-minute-read from the 18^th century says about abortion. It’s all marketed as a great and complex legal question, of course. Every year, a fresh mountain of articles and books is published on the latest doctrinal shifts, conferences are held, and new theories are manufactured out of thin air. During a JSD seminar, I made the mistake of expressing a moment of clarity on the subject. I declared that if a lawyer can’t say with confidence what the constitution says about abortion after actually reading it, he should probably go back to law school. Or maybe take up a new profession entirely. This was not, it turns out, the popular opinion in the room.

This entire national neurosis is fueled by what the founders called “Factions,” a fact I was reminded of at tonight’s faculty dinner for students. I was late. When I confirmed my attendance, I’d somehow missed that it conflicted with a class. Fortunately, an assistant to Professor Pigou, the event’s organizer, graciously granted me a magnanimous ten-minute grace period. The generosity is still overwhelming.

I made the journey on my prehistoric bicycle, a rolling piece of Cold War history reminiscent of an old Russian Desna, complete with foot-brakes and a profoundly ugly frame. It’s my sole means of transport because every other bike I’ve owned has been stolen in this little city. Upon arrival, I slipped into a seat directly across from my old LLM Constitutional Law professor. We made small talk. I offered that Europeans don’t treat their constitutions with the same religious reverence as Americans. He hesitated, then countered with “Germany.” I didn’t say that Germany’s Federal Supreme Court seems to be minting new rights on the fly, but I thought it. I picked at my food, consumed by the question that’s been gnawing at me all year: what on earth am I doing here?

My mind drifted back to his class. The topic of the day had been Roe v. Wade. Our professor had brought in a guest speaker: a judge from California, Chinese-American, thin as a legal brief, somewhere between 40 and 50, and staunchly conservative. He proceeded to dismantle Roe, criticizing its lack of any consistent underlying theory. He explicitly stated it had none. It was a masterclass in legal criticism, and, as it turns out, a preview of the public opinion engineering that would lead to a justice with seven children reversing the case years later.

But at the start of the lecture, the judge had lobbed a softball question that left the room silent. “What are factions,” he asked, “and why did the Founding Fathers warn against them?” Nobody moved. Maybe they didn’t know, or maybe they just didn’t want to be the one to answer. I’d read the Federalist Papers, so my hand shot up. I gave the textbook answer, citing James Madison’s take in Federalist 10. I thought I did alright. And just like that, my speaking career in Constitutional Law was over. The judge never called on me again.

I wondered why. Was it my accent? A quiet policy of disfavoring non-Americans in class discussions? The irony was particularly sharp coming from him. So, I stopped raising my hand. While the class went on debating the great and complex legal question of abortion, I just watched football on my phone.

A voice pierced my memory. “So, what are two interesting stories about you?” I’d been caught by the dreaded team-building exercise. I mumbled something, I don’t even remember what, only to be shot down by my own professor. He claimed he already knew those stories about me. This was fascinating, given that he seemed to struggle with my name just moments before, yet was now an expert on my personal anthology. If only he’d audited my life with the same meticulous care he later used to scrutinize the dinner check after bravely offering to pay.

Then, a plot twist. The professor, the one I’d been chatting with, offered his own two interesting facts. First, he used to deliver pizzas to Supreme Court justices. Second, he came here from New York for a reduced salary. God knows what possessed him to share this in front of his peers. The American academic style is to stay quiet, maintain a poker face (or, these days, a ChatGPT face), lest you be ousted from the circle. But maybe he was just as fed up with the lawlessness of this place as I was.