The U.S. Constitution is a mess. Important, revolutionary, bursting with good intentions — but still a mess.
It is a fallible document, created, interpreted and enforced by fallible humans. Though its equal protection clause guarantees rights to all Americans, the Constitution often fails to protect those rights — sometimes with lethal consequences. Is its messiness intrinsic, and too faulty to be redeemable? Or can it be fixed?
Heidi Schreck’s play, What the Constitution Means to Me, now streaming on Amazon Prime, offers a chance to debate those questions by focusing on the many ways the Constitution fails women. Despite its wonky title, the show was a hit when it ran on Broadway from March through July last year, netting a Tony nomination for best play and making Schreck a finalist for the Pulitzer Prize for drama.
“The Constitution is a living document,” Schreck proclaims in the show. “That is what is so beautiful about it. It is a living, warm-blooded, steamy document. It is not a patchwork quilt. It is hot and sweaty. It is a crucible. … [A] pot in which you put many different ingredients and boil them together until they transform into something else. Something that is sometimes magic. So you see, our Constitution is like a witch’s cauldron.”
For all of the reverence embedded within that statement, Schreck spends the remainder of the play subjecting that sweaty, boiling crucible to intense scrutiny. The result is a show that helps us realize that the founders who created this witch’s brew left out some important ingredients. And that maybe, just maybe, we might need to rewrite the thing from scratch.
The run of What the Constitution Means to Me on Broadway coincided with the controversial nomination of Brett Kavanaugh to the Supreme Court, the body charged with interpreting the Constitution. Its arrival on Amazon coincides with another bitter debate about the membership of the court and how that will affect women’s rights. The issues it wrestles with spread far and wide in American culture, from figures as seemingly disparate as Frederick Douglass and Megan Thee Stallion. Even in the more limited circles of New York theater, two other shows last year — Dana H. by Lucas Hnath and Gloria: A Life by Emily Mann — were posing similar questions: Who really counts as a citizen? Who truly enjoys the comforts of privacy and protection? Whose rights are truly inalienable?
In the play, Schreck reflects on her experiences as a teen, when she traveled the country competing in debates about the Constitution for prize money that funded her college education. Her charge, in these debates, was to connect the Constitution to her personal life and history. In the first act, Schreck, now 49, dons a yellow blazer that magically allows her to revisit her 15-year-old self — earnest, boy crazy and eager to please her audience of male American Legion debate judges.
As the play moves into the history of sexual and gender violence within Schreck’s family and the women of her home state of Washington, she eventually abandons the blazer so that she may speak with the wisdom and authority of a grown woman who has spent hundreds of hours listening to Supreme Court justices deliberate cases, and more hours consulting constitutional scholars. Schreck wields the show’s tragicomic tone with devastating precision. She can elicit laughs, like when, in her insistence that men are valuable, she proclaims, “I’m the daughter of a father!” But it’s impossible to watch without feeling tears well up when Schreck describes her Grandma Bette’s second husband, Dick, who raped Schreck’s aunt (her mother’s older sister) and impregnated her — twice. Schreck’s mother, then 14, reported her stepfather’s abuse to police. Bette eventually took her children and ran when Dick threatened to kill all of them with, Schreck wrote, his “constitutionally protected gun.” While the court’s decisions may lurch toward codifying basic human rights, they can also, depending on the interpretations of its nine members, dilute those rights or take them away entirely.
After laying out the many disappointments of the court and the document with which it concerns itself, Schreck engages in a parliamentary-style debate with a New York teen — one who is the same age as Schreck when she was barnstorming American Legion halls in high school — about whether to abolish the U.S. Constitution and start anew, or retain it. Rosdely Ciprian and Thursday Williams, who are not actors, but students trained in constitutional debate, played these roles on Broadway on alternating nights. In the Prime version of the show, we see Ciprian. (Schreck’s debate with Williams is included as a bonus feature.)
The play concludes with an audience member, chosen at random, deciding whether the Constitution ought to stay or go. In 123 instances, the audience member chose to keep it. At the other 57 shows, the audience member voted to abolish it. I’ll refrain from saying which option is taken in the filmed performance.
The sorcery of What the Constitution Means to Me is that it defies the wonkishness of the court by illustrating just how personal the political really is. There’s a moment when Schreck plays audio of the all-male justices deliberating Griswold v. Connecticut, the 1965 case that decided women could legally obtain contraception, and the justices’ obvious bumbling discomfort is equal parts horrifying and hilarious.
“They had to pull out this amendment nobody understands because they all wanted to make birth control legal, because, well, because it turns out that William O. Douglas, who was 67 years old, was having an affair with a 22-year-old college student! And apparently, three other justices were probably having sex with young women as well,” Schreck explains. “So, I’m thinking — right? — they really wanted to get the birth control flowing!”
In a speech delivered in Rochester, New York, on July 5, 1852, Douglass proclaimed the U.S. Constitution “a glorious liberty document,” but only when “interpreted as it ought to be interpreted.”
Like Schreck a century and a half later, Douglass was consumed with the contradictions between the words and ideas embedded within the preamble, and the fact that he was not protected by them. Still, he came to embrace the Constitution as one of the greatest arrows in his quiver when advocating for the rights of all.
“I say it with a sad sense of the disparity between us. I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us,” Douglass said in his 1852 speech. “The blessings in which you, this day, rejoice, are not enjoyed in common. The rich inheritance of justice, liberty, prosperity and independence, bequeathed by your fathers, is shared by you, not by me. The sunlight that brought life and healing to you, has brought stripes and death to me. This Fourth July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters into the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery and sacrilegious irony. Do you mean, citizens, to mock me, by asking me to speak today?”
The omission of women, Black people and Indigenous people from the original draft of the Constitution left their rights to be enumerated in subsequent amendments. This was very much by design.
The 13th Amendment mostly abolished slavery with one exception: “as a punishment for crime whereof the party shall have been duly convicted,” a loophole that eventually begat a crisis of mass incarceration. The 14th established birthright citizenship, transforming enslaved people into U.S. citizens, and the 15th gave those same people — the male ones, that is — the right to vote, while the 19th afforded suffrage to women. The 24th Amendment (supposedly) abolished poll taxes.
The biographical play Gloria: A Life, about Gloria Steinem, features Cherokee activist Wilma Mankiller explaining how the Iroquois Confederacy’s Great Law of Peace provided inspiration for the Constitution. Alas, when the Founding Fathers decided to poach the ideas of the earth’s oldest-living participatory democracy, they threw out the egalitarianism that went with it:
GLORIA: (To us.) Wait. Everybody knows democracy started in ancient Greece! Right? Then I research the Constitutional Convention and discover that Benjamin Franklin did use the Iroquois Confederacy as his model —
WILMA: — how Native nations across America convene to make mutual decisions —
GLORIA: … and also allow local autonomy for the tribes.
WILMA: Yes! Franklin hopes the U.S. Constitution will do the same for the 13 states. That’s why he invites two Iroquois men to Philadelphia as advisers.
GLORIA: (To us.) Guess what their first question is said to be —
GLORIA and WILMA: Where are the women?
I saw Gloria: A Life (now available via PBS’ Great Performances series) the night Kavanaugh was confirmed by the Senate in spite of the allegation he committed sexual assault as a teenager. At its conclusion, when the real Steinem emerged to lead the audience in a talking circle like those that typified the women’s rights movement of the 1970s, the crowd was full of anxious, weary, teary-eyed women wondering how to find the fortitude to keep trudging on. I’ve heard similar things from people who attended a performance of What the Constitution Means to Me on the same night. The audiences for both plays were filled with people, experiencing in real time just how tenuous their constitutionally guaranteed rights really were.
Schreck uses her family as examples, but also cites the case of Jessica Lenahan, formerly Gonzales, a woman who sued the Castle Rock, Colorado, police department for failing to enforce a protection order after her husband acquired a gun and killed their children. The case went to the Supreme Court, which ruled that Lenahan did not actually have the rights that were afforded to her by the 14th Amendment or the Violence Against Women Act. The court essentially ruled that police departments were not obligated to protect Lenahan, her children or other people like them.
How could this possibly be? Schreck explained:
Because of my personal connection to this kind of violence, I wanted to understand how the court came to this decision. I wanted to know why. So, I talked to a few constitutional scholars, and this is what I learned:
I learned about two kinds of rights: negative rights and positive rights. Negative rights protect us from the government taking our stuff, locking us up, killing us. Positive rights are active rights. They include things like the right to a fair trial, a right to counsel, the right to an education, in some countries to the right to health care. Our Constitution primarily, with some exceptions, is a negative-rights document, and [Justice Antonin] Scalia, an originalist, was adamantly a negative-rights kind of guy, which is how the court came to decide that Jessica Gonzales was not constitutionally entitled to active protection in this case. I also learned that if we had an Equal Rights Amendment, Jessica Gonzales could have been protected by our Constitution, and I understood why my mom cried so many years ago when the ERA didn’t pass.
Last year, well after I saw What the Constitution Means to Me, I went to the premiere of the off-Broadway play Dana H., a one-woman documentary show that uses as its script the harrowing first-person account of Hnath’s mother, Dana Higginbotham. The play uses audio from interviews Higginbotham gave explaining how she came to be kidnapped and eventually escaped from a member of the Aryan Brotherhood. One of the most chilling details in the story is the fact that Higginbotham escaped her captor multiple times, sought help from the police and was denied safe harbor. In at least one instance, a police officer simply gave her back to her captor because he knew the man was a member of the Aryan Brotherhood.
As I tried to process what I’d witnessed onstage, knowing it was a true story, the question that kept buzzing in my head was just who are the police actually for.
As Schreck articulates in the second act of her show, “You can’t possibly be equal in this country if you are subject to epidemic levels of violence.” In a system in which the police who killed Breonna Taylor face almost no legal consequences for doing so, Black women face a terrible conundrum, also acknowledged in What the Constitution Means to Me. They are part of a community that is overpoliced and underprotected. When they are targets of violence, they know that calling law enforcement amounts to the roll of a die when it comes to their lives, or the lives of those who harm them.
Writing for The New York Times after a Saturday Night Live performance in which she admonished Kentucky attorney general Daniel Cameron for his conduct in the Taylor case, rapper Megan Thee Stallion offered her own assessment about violence directed toward Black women, which she experienced personally. “It happens because too many men treat all women as objects, which helps them to justify inflicting abuse against us when we choose to exercise our own free will.
“From the moment we begin to navigate the intricacies of adolescence, we feel the weight of this threat, and the weight of contradictory expectations and misguided preconceptions. Many of us begin to put too much value to how we are seen by others. That’s if we are seen at all.”
“The fluidity with which rights can be bequeathed and taken away, in fact, reduces rights to privileges,” Keeanga-Yamahtta Taylor, an African American studies professor at Princeton, wrote for The New Yorker in September in a column headlined, The Case for Ending the Supreme Court as We Know it. “In a truly democratic society, civil rights should not be contingent on a fortuitous combination of Supreme Court Justices.”
It’s not crazy to despair when one looks at the many ways that women and people of color are failed by the Supreme Court and the Constitution. The key, as we’ve been told ad infinitum, is to do something with that despair other than succumb to it. This point, too, is a key part of Schreck’s play. It comes up in the third act, when she’s debating Ciprian about whether to keep the Constitution or chuck it and start over.
So how do we find hope? We march, we vote, we stand up to be counted by turning in our census forms. And yet it is difficult to have faith in those actions, even moreso when we recognize that a tiny proportion of the population pays attention to the inner workings of democracy. The program for Gloria: A Life came with a sticker bearing a Steinem quote: “Voting isn’t the most we can do, but it is the least.” Keeanga-Yamahtta Taylor reaches a similar conclusion that Schreck does, which is that to make participatory democracy work, people must participate. More often than not, they don’t. Perhaps we’ve reached a turning point in 2020. As of Oct. 26, the Washington Post reported, the number of Americans who voted early this cycle has surpassed that of the 2016 election.
So what will become of our democratic crucible? To continue with Schreck’s metaphor, dumping a bunch of herbs and seasonings into a dish that is ostensibly finished does not result in the same layering of flavor as starting with them from the beginning, and that’s what constitutional amendments often are: seasonings that can be added or subtracted depending on the tastes and discretion of the cook. In our case, there are nine cooks: the justices who sit on the Supreme Court. And the seasonings that are oh-so-important? Those would be civil and human rights for everyone who wasn’t included in the original recipe; basically, anyone who isn’t a straight, white, cisgender, property-owning male.
Removing the bitter taste that lingers within the Constitution — the one that often dances strongest on the tongues of women, Black and Indigenous people — is going to take more cooks, and a lot more work.