Pod Insights Throughline The genius and murkiness of the Constitution About this episode What does the Constitution mean to me? That’s a question writer and actor Heidi Schreck asked herself years ago, when she started working on her one-woman play about the Constitution — a document that she loved deeply. Today on the show, we ask the same question as we explore what the historical document means, and how it’s impacted generations of Americans.
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Transcript Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:00 Speaker 00 This message comes from the Southern Environmental Law Center. No one voted for dirty air and water. That's why S E L C is fighting back to defend the healthy environment everyone depends on, because it's not political, it's fundamental. Learn more at S E L C dot org.
0:19 Rund Abdelfatah? This is America in Pursuit, a limited run series from NPR and Throughline. I'm Randa Abdelfatah. Each week, we bring you stories about life, liberty, and the pursuit of happiness in the U.S. that began 250 years ago. Today, I want to tell you about a woman named Heidi, Heidi Schreck.
0:40 Speaker 02 I am an actor, writer, performer, creator.
0:44 Rund Abdelfatah? When Heidi was a teenager in the 1980s, she did something not a lot of kids were doing.
0:50 Speaker 02 When I was 15 years old, I would travel the country, giving speeches about the United States Constitution for prize money.
0:58 Rund Abdelfatah? Heidi loved the Constitution. She believed it was the greatest political document ever written, and she was damn good at talking about it. Back then, she wore a blue power suit, had very large permed hair, a lot of makeup.
1:14 Speaker 02 I would travel to big cities like Denver, Fresno. I would win a whole bunch of money, bring it back to put in my little safety deposit box for later. I was actually able to pay for my entire college education this way. Thank you, thank you so much. It was 30 years ago and it was a state school, but thank you.
1:33 Rund Abdelfatah? That's Heidi on a Broadway stage some years ago, performing her hit play, What the Constitution Means to Me. It's a show Heidi wrote about her experience participating in those debate clubs when she was a teenager. For most of the play, Heidi is onstage by herself. She goes back and forth between the current Heidi, a woman in her late 40s, and the 15-year-old version of herself. The set is a recreation of the American Legion Hall, where one of those debates took place decades ago. She stands alone onstage. Behind her is a wall covered with the faces of hundreds of men, framed photographs of competition judges and war veterans.
2:13 Speaker 02 Our Constitution can be thought of as a boiling pot in which we are thrown together in sizzling and steamy conflict to find out what it is we truly believe. That is why it's such a radical document.
2:26 Rund Abdelfatah? And it's from this so-called radical document, from those years spent deliberating over the Constitution, that things started to click and to change in Heidi's worldview.
2:39 Speaker 02 I would say the biggest thing that happened
2:45 Speaker 02 was that I learned some things about my family history, but I didn't quite connect it to the Constitution at the time. I didn't know how to make those connections.
2:57 Rund Abdelfatah? Heidi learned about this legacy of abuse in her family during those years. But it took nearly two decades for her to really start to understand how it all fit together. And in that understanding, all of her ideas about the Constitution were challenged.
3:14 Speaker 02 I don't even know where to begin, except to say that the Constitution has profoundly shaped my life. I feel like it's a document that has protected me and completely failed me and so many other people in this country.
3:27 Rund Abdelfatah? And so she turned that profound engagement with the document into a play to share with thousands of people, whose dialogue explores what exactly the founding fathers created and meant to create back in 1787.
3:42 Speaker 02 A group of magicians got together on a sweltering summer day in Philadelphia, and they wanted to kill each other. But instead, they sat down together, and they performed a collective act of ethical visualization. Or as I like to call it, a spell.
4:06 Rund Abdelfatah? Today on the show, we're talking about the Constitution of the United States with Heidi Schreck, someone who's spent a lot of time sorting through the promises of the Constitution, how it works, and how it's impacted subsequent generations of Americans. That's coming up after a quick break.
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5:34 Rund Abdelfatah? When Heidi Schreck started writing What the Constitution Means to Me, she thought she was writing a lighthearted, comical play, maybe even something fun.
5:43 Speaker 02 You know, one of those like great movies about like girl debaters. That's sort of uplifting and really fun and funny.
5:52 Rund Abdelfatah? That was the original idea. Take the prompt of the actual contest she used to do as a teenager, which was to draw a personal connection between her own life and the Constitution, but do that with the wisdom and hindsight that only adult Heidi could bring to the table. Because when she was 15, drawing those personal connections sounded like...
6:13 Speaker 02 You know, I protested my school's ban on girls wearing shorts, and that's me expressing my First Amendment right.
6:21 Rund Abdelfatah? And then she decided to take it more seriously.
6:24 Speaker 02 That immediately took me to birth control. That took me to Roe v. Wade. That took me to the 14th Amendment and the Ninth Amendment. And then it took me to domestic violence.
6:39 Speaker 02 So when I was like, these are all things that have affected my life. Why don't I dig into what the Constitution has to say about them? What the Supreme Court has had to say about them? I would say making the play kind of forced a reckoning. Maybe because of my own family history of this kind of violence, I just, I needed to make sense of it. So I talked to several constitutional scholars.
7:02 Speaker 04 Heidi learned a few things. And part of that learning process was unlearning. She grew up thinking and defending the idea that the Constitution was meant to protect us, the citizens. But then she learned, that's not exactly true.
7:19 Speaker 02 It's actually not designed to protect us, right? It's designed to first outline how government will function, the co-equal branches of government, the separation of powers. It's designed to like, put a system in place. And then it's designed to protect us from encroachment by the government, right? From allowing like tyranny to take over. So it, so it, like the due process clause, which says the government cannot lock you up, take your stuff, or kill you without a good reason.
7:49 Speaker 04 15-year-old Heidi loves this clause. It states...
7:53 Speaker 02 Nor shall any state deprive any person of life, liberty, or property without due process of law.
8:00 Speaker 04 This brings us to another thing Heidi learned from the constitutional scholars. She learned about two kinds of rights.
8:07 Speaker 02 Negative rights and positive rights.
8:10 Speaker 04 The due process clause falls into the category of negative rights, rights that protect us from something, like the government. While positive rights are active rights, rights that the government or other people have to actually provide.
8:25 Speaker 02 They include things like, like the right to a fair trial, to an attorney. In some countries, the right to healthcare.
8:36 Speaker 04 Our constitution, for the most part, is full of negative rights.
8:40 Speaker 02 And one of the things that I discovered when I was researching the play was I just read a lot of other countries' constitutions and I was interested in what modern constitutions look like because ours is the oldest, active constitution.
8:53 Rund Abdelfatah? That's because many other countries over time have scrapped their original documents and replaced them with more modern constitutions. South Africa and Germany have both done this.
9:03 Speaker 02 And seeing the constitutions created in the 20th century and constitutions that were created in the wake of genocide, in the wake of great governmental crimes, those constitutions contain positive rights, right? Contain active protections for people who say like, they say like, "We will guarantee that you are a protected class of citizen so that you will not be discriminated against on the basis of race, sex, gender, ability." They say, "We will guarantee a clean planet." Now, whether these are effective or not is up for debate, but they have active, positive rights, things that the government is supposed to do, right, to protect you and take care of you as a citizen.
9:48 Rund Abdelfatah? Heidi first saw how a constitution made up of mostly negative rights, those liberties outlined in the Bill of Rights in our constitution, specifically failed to protect the abused women and her family and thousands of others through the Supreme Court case Castle Rock versus Gonzalez.
10:05 Speaker 02 Which is about whether the police are required to enforce restraining orders.
10:12 Speaker 05 This is case number 04278, Town of Castle Rock versus Gonzalez.
10:18 Rund Abdelfatah? This is the late Supreme Court Justice Antonin Scalia, delivering the majority opinion on June 27, 2005. Despite the nature of the case, Scalia kicked things off with a joke.
10:30 Speaker 05 I thought Castle Rock was a 1920s dance, but it's also a town in Colorado.
10:39 Rund Abdelfatah? Then he cut to the chase.
10:40 Speaker 05 The facts are truly horrible. Jessica Gonzalez, the respondent, sued the town of Castle Rock in federal district court alleging that the town had violated her rights under the Fourteenth Amendment's due process clause.
10:55 Speaker 04 Jessica Gonzalez had three daughters with her husband and a restraining order against them. She filed for one in 1999 after a long history of violence and abuse. A month into that restraining order, her husband kidnapped their three children. Gonzalez called the Castle Rock Police Department for help. It was around 7:30 PM.
11:18 Speaker 05 When officers came to her house, she showed them the restraining order and asked them to enforce it and return her children. They told her to call back if the children did not return by 10 PM.
11:30 Speaker 04 She called an hour later, saying she had heard from her husband and knew where they were.
11:34 Speaker 05 Again, they told her to call if the children were not returned by 10 PM.
11:39 Speaker 04 She called again and again until nearly 1 AM, when she got back in her car and went to the station to file a report. An officer took the report and then went to dinner.
11:52 Speaker 05 Finally, at 3:20 AM, her husband showed up at the police station, shooting a semi-automatic handgun. The police shot him dead and discovered in his pickup truck the bodies of all three children whom he had already murdered.
12:19 Rund Abdelfatah? Jessica Gonzalez, who's actually now Jessica Lenahan, her maiden name, sued the town of Castle Rock for violating her rights under the due process clause of the Fourteenth Amendment by refusing to enforce her restraining order and therefore failing to protect her family. Remember, the due process clause is a prime example of negative rights.
12:42 Speaker 02 Which is in part how they came to decide that Jessica Lenahan was not entitled to any active or positive protection from the police.
12:50 Rund Abdelfatah? She lost.
12:52 Speaker 02 I just, I've listened to this case so many times.
12:58 Speaker 02 And the thing I notice when I hear the justices speak.
13:04 Speaker 02 The thing I notice is that they spend very little time talking about Jessica Lanahan as a human being. They don't talk about her daughters.
13:14 Speaker 02 Instead, they spend a very long time arguing about the word "shall", as in the phrase "the police shall enforce a restraining order".
13:33 Speaker 02 Scalia ultimately decided that "shall" did not mean "must", which I actually find very confusing because Scalia was a devout Catholic.
13:47 Speaker 02 Some constitutional scholars have called this decision "the death of the 14th amendment for women". It basically shuts down the possibility to look to our federal government, to our Constitution, for protection from physical and sexual violence.
14:08 Rund Abdelfatah? Castle Rock versus Gonzalez was a constitutional test that helped adult Heidi understand her own family history in relation to the Constitution in a way she never could have as a teenager, back when she viewed the document essentially as scripture.
14:25 Rund Abdelfatah? This ruling brought into clear focus this tug and pull between positive and negative rights, and it shined a bright light on those shadowy rights that lie somewhere in between.
14:41 Speaker 02 A penumbra.
14:53 Speaker 02 Here I am, standing in the light.
14:56 Speaker 02 And there you are, sitting in the darkness. And this space between us, this space right here of partial illumination, this shadowy space right here, this is a penumbra.
15:13 Speaker 02 The word itself means the space between like the full light and the darkness, right? Or it's actually between the full light and the kind of shadow. So it's this kind of half-light, half-dark, very shadowy, murky place.
15:29 Rund Abdelfatah? Penumbra, a kind of metaphor for the juxtaposition of what's explicit and implicit in the Constitution. Heidi discovered and then became obsessed with the word penumbra when learning about another Supreme Court case.
15:44 Speaker 02 Griswold versus Connecticut, which is the case that made birth control legal for all people in this country in 1965. Pretty late.
15:55 Speaker 04 In 1961, Estelle Griswold and Dr. Charles Lee Buxton were arrested for giving information about contraception and writing prescriptions for IUDs to women at a Planned Parenthood in Connecticut. They took their case to the Supreme Court. This is the case where Heidi's favorite parts of the Constitution join hands and take center stage. The due process clause of the 14th Amendment and...
16:20 Speaker 02 The most magical and mysterious amendment of them all, Amendment 9.
16:28 Speaker 02 Amendment 9 says, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Basically, that talks about unenumerated rights. It says, "Just because a right isn't listed in the Constitution, it doesn't mean you don't have that right." The fact is, there was no way for the framers to put down every single right we have. I mean, the right to brush your teeth. Yes, you've got it. But how long do we want this document to be?
17:01 Speaker 02 Think about it for a moment. Our Constitution doesn't tell you all the rights that you have because it doesn't know.
17:08 Speaker 02 And I love that amendment because it does speak to the like, uh, living, breathing nature of the document. And also, it's just a very weird, mysterious thing. Like, everything else is rather concrete, and it's very confusing, this amendment. Justice William O. Douglas, the great Supreme Court Justice, when he talked about Amendment Nine, he used the word "penumbra."
17:32 Speaker 04 In Griswold versus Connecticut.
17:34 Speaker 02 I read about how that case was partially decided with the help of the Ninth Amendment, as was Roe v. Wade, with this idea that like, okay, we don't know, given, given the tools we have with this Constitution, we don't know how to say exactly that like, a person is entitled to use birth control, or a person is entitled to have an abortion. So, we're gonna locate it in this right to privacy, which is not enumerated in the Constitution exactly, but we're gonna say it's like, um, it's there. It lives there in the shadow of the Constitution as a result of other rights that were enumerated, right? So, it's like this very murky reasoning. And this, this is when William O. Douglas brought out his beautiful penumbra metaphor.
18:19 Speaker 02 This is when he said, "One thing our Constitution surely guarantees is the right to privacy, and that this allows a woman to put in an IUD."
18:28 Rund Abdelfatah? As long as she's married. Anyway, at this point in the play, Heidi pulls up a clip from the Griswold case, of the nine justices, all men, attempting to discuss birth control.
18:40 Speaker 06 It's probably only true with respect to some, but some get by under the term feminine hygiene. And, uh, others, uh, uh, I, I, I just don't know about. But, uh, they are, they are all sold in Connecticut drugstores on one theory or another. Is there anything on the record to...
19:10 Speaker 02 To indicate to the state of the first great thematic that these would be the states that don't have such laws.
19:22 Speaker 02 I really found it fascinating that, first of all, that the justices, who at the time were nine men, had to look to this amendment that nobody really understands and decide that they found, you know, the right to birth control or the right for a pregnant person to have autonomy over their own body, that they found that in this, in the shadows of the Constitution, I guess, in this like murky, murky space.
19:48 Rund Abdelfatah? A murky space that leaves so much room for interpretation, which many argue is the very genius of our Constitution. The intentional vagaries allow for flexibility. But this very nature of the document may at times protect its citizens, but at other times, it fails them, leaving some of our basic rights hanging in the balance.
20:11 Speaker 02 People laugh at Douglas for calling it this, but I like it. I think it's a helpful way to think about the Constitution and also maybe about our lives. I mean, here we are, stuck between what we can see and what we can't. We are trapped in a penumbra.
20:33 Speaker 04 As a teenager, Heidi really believed in the Constitution. But after a decade of writing and performing this play, something flipped. Heidi could no longer ignore all the imperfections.
20:50 Speaker 02 Maybe it's not helpful to think of the Constitution as a crucible, in which we're all battling it out together, in which, in which we go in front of a court of nine people to negotiate for our basic human rights. Maybe, maybe, we could think of the Constitution as a Constitution that is obligated to actively look out for all of us.
21:34 Rund Abdelfatah? That's it for this week's show. If you want to hear the full-length episode with Heidi, check out The Shadow of the Constitution. And join us next week when we look at the story of America through music. You can look at any point in American history and understand what was happening through the sounds that were developing at that time. That's next week. Don't miss it. This episode was produced by Kiana Mogadem and edited by Christina Kim and Julia Redpath with help from the Throughline production team. Music by Ramtin Arablouei and his band, Drop Electric. Special thanks to Julie Kane, Irene Noguchi, Beth Donovan, Casey Minor,
22:15 Rund Abdelfatah? and Lindsay McKenna. I'm Rande Abdelfattah. Thanks for listening.
22:32 Speaker 00 Stay tuned for the following announcements and messages from our sponsors. This message comes from Sony Pictures Classics, presenting the acclaimed new crime thriller, The Only Living Pickpocket in New York, starring John Turturro. Only in theaters October 23 in New York and LA. Nationwide, October 30. This message comes from Rosetta Stone. Rosetta Stone is designed to make language learning intuitive. It mimics how people naturally acquire speech as children, helping users read, write, and think in a second language. More at rosettastone.com.
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