The Constitution Gets the Broadway Treatment (ep. 57)

July 25, 2019
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Heidi Schreck is the writer and star of Broadway’s “What the Constitution Means to Me.” The play, which was nominated for two Tonys and was a Pulitzer finalist, was inspired by Schreck’s experience as a teenager competing in debates about the Constitution at American Legion halls across the country. As an adult, she revisits her personal connection to the document to see how her relationship to it, and American democracy on the whole, hold up in new light.

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EMERSON SYKES
[00:00:05] From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney at the ACLU and your host.

A surprise hit from the last Broadway season is an original play that's uniquely relevant to the ACLU’s work. It's called “What the Constitution Means to Me.” Our guest today is Heidi Schreck, the writer and star of the play, which was nominated for two Tonys and was a Pulitzer finalist. It's inspired by Heidi Schreck’s experience as a teenager competing in debates about the Constitution at American Legion halls across the country. As an adult, she revisits her personal connection to the Constitution to see how her relationship with the document, and American democracy on the whole, hold up in new light. “What the Constitution Means to Me” wrestles with big questions like, who's included in the phrase “We the People”? And how do we reckon with the complicated role the legal system plays in advancing social progress and equality?

Heidi Schreck, thanks very much for joining us in the studio. Welcome to the podcast.

HEIDI SCHRECK
Thank you for having me. Thank you.

EMERSON
It's a real pleasure to have you in the studio. I have seen your play not just once, but twice. And so just for those who haven't had the chance to see the play yet, it's kind of three shows in one. It starts out with a reenactment, where you're in character as teenage you. And then there's more of a monologue in your present-day voice.

HEIDI
Yes.

EMERSON
And then it ends with a debate. So it's got a few moving parts, but for those who haven't seen it, can you just describe what the play is really about?

HEIDI
Sure.The play started as a recreation of this contest I did as a kid, as a teenage girl, where I traveled the country giving speeches about the Constitution at American Legion halls. They have a contest called the “American Legion Oratory Contest” where you can win tons of scholarship money. And so my mom had this idea to have me do this contest so I could go to college.

[00:01:57] So I, about 10 years ago, thought it would be interesting to revisit that time, it was a very obviously formative time for me. I started doing the contest when I was 15. And in doing so, I decided to make a play based on the idea of taking the prompt of the contest seriously, which is to find a personal connection between your own life and the Constitution, which I wasn't very good at when I was a teenager, but I thought, “What if I tried to do that now when I'm in my 30s?” and it yielded a very interesting play and also an interesting sort of deep dive into the history of my own family, particularly the history of the women in my family.

So, basically it's a reckoning with this document, this document that I kind of worshiped as a kid. Over the course of the play I sort of grow up from a 15-year-old to a 47-year-old and reckon with my own life as a woman in this culture and my own legal status as a woman in America.

EMERSON
Well, I want to come back to some of the personal stories and how you chose those stories to include in the play, but as a basic point I mean, I think, you know, the theme of the show in many ways is your sort of ambivalence towards the Constitution and the complicated role it's played. And for myself as a constitutional lawyer, what the Constitution means to me is actually a question that I also wrestle with on a day-to-day basis.

HEIDI
Sure.

EMERSON
So I'm curious how your relationship has changed, and even since you started producing the play, what the Constitution means to you, present-day, now.

HEIDI
Well, I think the ambivalence came about during the act of making the play. I really, to be quite honest, hadn't thought about the Constitution a lot in the time period between doing the contest and becoming an adult.

EMERSON
You were busy doing some other things.

HEIDI
[00:03:46] I went into a theater, I became a playwright and an actor and I wasn't busy studying the Constitution. So when I went back to look at it and to really try to find where my life, my body intersected with the Constitution, that is when the deep source of my ambivalence began, when I started to realize how, at least I've come to feel over the 10 years of making it and the year of performing it, how unprotected many people are by this document. How it actually, in my opinion, protects very few people, even now.

I also rediscovered what is extraordinary about it. I rediscovered the genius of it. But I also just realized how profoundly left out of it I had been, and many others.

EMERSON
Yeah and I mean, as an African-American working on the First Amendment, this is a sort of central tension in my work as well where you know the free speech is, certainly now, has been weaponized against many of the communities that I care about, but also realizing that many of the victories from the civil rights movement and going back even further, were facilitated by that same First Amendment. So it's been used both as a tool for progress but also as a weapon of oppression in many ways.

HEIDI
Right, right. So as you know at the end of the play we debate whether or not to abolish the Constitution and, which is in many ways a theatrical conceit. Like, how far can you take this play which begins with a young teenage girl worshipping the Constitution. Like, how far in the opposite direction can you go?

So one of the things we argue about, because this document was made by white men, white male property owners, many of whom were slave holders, and these are the people we consider to be the founders. But recently I've been doing a lot of reading into this idea of who the founders of this document actually are. And when you talk about the civil rights movement, the idea that the people-- that those are also the founders of the Constitution. Right, that Thurgood Marshall is also a founder of the Constitution, that Bayard Rustin is a founder of the Constitution, all the people that have used this document to actually push us forward and understood this document and worked with it in such a way to create progress, we can also talk about them as the founders of the Constitution and and now, in our debate, one of the younger debaters, Thursday Williams, who's a genius debater, names herself as a possible founder. Like where there's this idea which we could all be founders of this document, if we actually engage with it, and actually try to use it to move this country toward becoming a more humane place to live.

EMERSON
[00:06:17] Well, the young debaters that you engage at the end of this show are, you're very courageous to include them because they threaten to steal the show at the very end.

HEIDI
They do steal the show. Let's be clear, yeah.

EMERSON
But it's interesting because there is an element of audience participation. And there’s also a sort of, throughout the play is trying to seem improvised or at least extemporaneous.

HEIDI
Yes.

EMERSON
But having seen it twice it definitely is not. I can vouch for the fact that it is very tight and consistent. But the audience does change, and at the end of the debate, the audience is asked to react to how the debate went and to decide whether or not to abolish the Constitution. So I'm interested, even though it seems as though the play itself doesn't shift night to night, I did notice that different lines were more powerful on different nights depending on the day's news. Can you talk about how the show has evolved over the time in terms of the reception of the audience?

HEIDI
Sure. I think, so the show changes very little, although we do keep evolving the debate. I think as we learn new things and also as the news changes, I don't know if this was true when you saw it, but we switch sides now, so we can each argue either side. But I find what's fascinating is that while the content doesn't change, and I don't tailor it to react to the day's news, because the whole show is an exploration of the 14th Amendment Section 1 and the 9th Amendment and also an examination of 230 years of history, there's always something in it related to what is happening on that day.

[00:07:54] And so what I've discovered is that the play just changes depending on what the audience is bringing in with them and what I'm bringing in with--with me. The subtext of the show changes because we're all reacting to what's going on in the country on any given day. And so I have had people come to the show and say, “Oh the play. Did you make it all about abortion because you know what's happening in Alabama and Ohio?” and I'm like, “First of all, it's not all about abortion. And second, no I didn't change it in response to that,” or they'll come and say, “Is this because of what's happening on the border with the camps? Is this why you're talking about citizenship? Is this why you're talking about the Due Process Clause?” and I say, “No, that's always there,” but I think depending on what's happening at the moment different parts of the show become more vivid for people. And people also become more emotional. I certainly do. My emotional trajectory of the play changes depending on what's happened that day or what I'm reading about or hearing about and that feels true for the audience, too.

EMERSON
Yeah, it was a really powerful experience. I think the headlines the day I saw it were about family separation. So the talk about immigration and citizenship and families was really stirring in particular. But I'm interested in how you chose the parts of the Constitution and the themes that you wanted to pick up. Obviously it's a pretty unwieldy document.

HEIDI
Yes.

EMERSON
And there's plenty to choose from in terms of interesting stories and relevant pieces that speak to our present day. But you focused on the Ninth Amendment, which was critical in terms of saying that there are other unenumerated rights, there's a prenumbra of rights wherein we find the right to privacy, wherein we find the right to an abortion, and then the 14th Amendment was also a big focus. Can you talk about sort of how you picked the issue areas as well as the cases and the amendments that you went for?

HEIDI
Sure. Well, first of all, my big ambitious idea at first was to create a show in which I was somehow able to tell a personal story related to every single amendment, which as you know, as someone who focuses on the First Amendment, that’s-- really was a crazy idea. I guess that would be like, a, I don't know, a month-long show.

EMERSON
[00:10:01] At least. At least. It would be an epic to say the least.

HEIDI
I quickly discovered that that was not going to be viable. For the contest, when as a teenager, you had to learn, actually you had to study six amendments every year, and you had to be ready to speak on any of them. And the idea is, to win, you find some personal connection to each of those. So that was my grand plan; that didn't work out, so I decided to start over and say, “OK, what are the Supreme Court decisions that have most directly affected my life?” And because I was starting with myself as a teenager, I started with my own body. So, Griswold v. Connecticut, which legalized birth control I was the first case I started with. So, I looked at which amendments were involved in that case. And as you know the Ninth Amendment plays a very big role. And that took me to Roe v. Wade, which took me to the 14th Amendment because of due process and because of equal protection under the law, which of course they tried to bring a woman's right to choose into the forefront using Equal Protection Clause. But nobody was able to do that.

And then when I went further into the history of my own family, and I have, as you know from the play, a history of domestic violence and sexual violence in my family. That's when I discovered Gonzalez vs. Castle Rock, which is the story of Jessica Lenihan. It's a very tragic story of what happened to Jessica Lenihan and her daughters, and that was a huge discovery for me, how little protection there was, for her, in the Constitution, and that led me to the 14th Amendment Section 1.

EMERSON
Yeah, I mean we were- we were honored that it was a couple of ACLU cases that were featured dominantly in Griswold and in Gonzalez. And in Gonzalez, basically the court found that there was no constitutional right for the police to enforce a restraining order against this woman's ex-partner who then took her children and brutally murdered them.

HEIDI
Yes.

EMERSON
[00:11:58] And the Supreme Court basically said, “Well, the Constitution doesn't have much to say about this.:

HEIDI
Yes, yes. The Constitution doesn't have much to say about this. And, what's more, she had sued the city of Castle Rock in Colorado and won her lawsuit actually and they actually overturned a decision by the state. The state of Colorado said that the police had, in fact, an obligation to show up, that they were required to enforce a restraining order. And Scalia who was heavily invested in state's rights, actually overturned their decision.

EMERSON
You know, the ACLU, we win a lot of cases, but we also lose a heck of a lot of cases. And then the Gonzalez decision, we actually were able to get some vindication in the regional court the Inter-American Court for Human Rights.

HEIDI
Yes.

EMERSON
But in any case you know we lose a lot of cases and you'll go down to the 17th floor and hear a lot of people saying. “Well, all hope is lost, why do we even do this? What's the point of going to the courts, they're all a bunch of you-know-whats.” Now, I'm glad to say that usually we wake up in the morning and we go back to our desk and we keep pounding. But as you sort of went through this journey, I was interested in hearing, as a part of the play that you were pre law.

HEIDI
Yes.

EMERSON
As an undergraduate.

HEIDI
For a very short time.

EMERSON
Well, I could see you you know---

HEIDI
As soon as I got cast in the play I was like, “Ah, forget the law.”

EMERSON
Well, but it was interesting because I could totally see you as a ACLU attorney in an alternate universe, so I'm wondering if, if it was just clearly about following your obvious passion towards the theater or if there was some early inclination that actually a life of fighting these battles in the courts is actually not going to be an easy one?

HEIDI
I mean, first of all, I'm honored that you would even consider me a possible ACLU attorney.

EMERSON
You’d be a wonderful colleague, I am sure.

HEIDI
[00:13:44] I am very grateful to the ACLU and in creating the play have become more and more impressed by the work that you all do, the people I've met. You know, we just had a reunion for Jessica Gonzalez and all the attorneys who have worked on her case, both with the Supreme Court and with the Inter-American Human Rights Commission, and I was incredibly moved by the number of attorneys who worked for the ACLU who have been with her case for 10 years, who have, like, devoted their lives to getting justice for her and her daughters. I just think the work that you do is incredible.

So, I entertained the notion of being a lawyer for a very short time. I think it came out of my, my love of history and also my-- the fact that I was the debate kid all through high school. But I think my interest, even at that time was mostly in storytelling and in theater and performing and I know that the two can intersect. But it became clear to me that my interest is in storytelling.

EMERSON
Well, again as you've said, storytelling is a lot of what we do. And one of our--our most frequent guests is one of our attorneys who works on voting rights who’s former actor and so this sort of performative aspect of the law also makes its way into the play where you play some audio from the Supreme Court, and it's not so much that you're questioning their legal argumentation or anything about the reasoning, or even the facts of the case per se, but there's something about the human quality of how these people were interacting during the Griswold case that really speaks volumes about where the country was at at the time. Can you just describe -- this is an unforgettable part of the show.

HEIDI
Yes. So, when I first started doing my research, I, of course discovered Oyez.org, which is an incredible resource; I highly recommend it. It's a recording of pretty much every Supreme Court case that has been argued since recording began, I believe. It's an incredible resource. And so I was reading about Griswold v. Connecticut and thought, “I'll go listen to it.”

[00:15:44] And the first thing I noticed, and I think this is because I'm an actor and a writer, was not the legal arguments anyone was making but the fact that the men who were--it was all men of course on the court and all men arguing it-- is that they just were--they kept clearing their throats. They would start an argument and then go like “(coughing, clearing throat noises), an IUD, women’s bodies.” And I was like, “This is absurd.” And I really listened to the whole thing and it truly is the first thing-- the thing I would-- the frequency I was listening to was the-- was how these men were feeling while they were talking about this, and they were clearly deeply uncomfortable with the whole situation, deeply uncomfortable considering, talking about, arguing about women's bodies. So, then that became the way I listened to all, all the cases. The first thing I wanted to listen to it was like: What are these people feeling when they talk about this? Like, how do they talk about this? What's the subtext here? Which became just as fascinating to me as any of the legal arguments.

It's funny too because a Constitutional scholar came and said, “How long did it take for you to discover that clip where the where the justices are clearing their throats? I've listened to this case, and I've never heard that.” He's a man, and I was like, “It's the first thing I noticed and it happens through the entire argument. I don't know how you can miss it. But yeah, clearly I'm listening for different things maybe because my occupation is different than yours so…”

EMERSON
Well I had a similar experience listening to Oyez for a case on the First Amendment where we were defending a Nazi sympathizer, essentially, which we've done on more than one occasion.

HEIDI
Yes.

EMERSON
I assure you it's not most of what we do, but it is what we do occasionally.

HEIDI
I know that.

EMERSON
And what was notable to me was, sort of, at the very end, the person who was arguing the case basically just threw in as a footnote, “Oh, and of course we think that his ideas are silly and stupid.” But you can imagine if someone were arguing that case today, those type of sentiments would probably be a lot more front and center than the addendum at the end: “Oh, by the way we actually don't agree with this guy.”

HEIDI
Right. Right.

EMERSON
[00:18:00] And so thinking through like, why, or how gender has evolved through the Constitution, obviously women are not included: there are no female pronouns in the Constitution, and they were explicitly excluded on a number of occasions.

HEIDI
Yes.

EMERSON
And I'm just curious how you see the current moment, especially in terms of of gender, gender based violence, and abortion rights in the current moment, in light of how you've done this research over the last 10 years. How does that inform how you consume the day's news on these issues?

HEIDI
First of all, I think we need an Equal Rights Amendment. I am personally for a very broad Equal Rights Amendment that specifically, explicitly states that there cannot be discrimination based on gender, sex, race, sexual orientation that doesn't just cover women or, you know, the quote-unquote “she/her pronoun.”

As I'm sure you know, I talk about on the show: 179 constitutions have explicit gender protections written into them. Ours is not one of them. And when I read the news now, or when I read about cases I often think, “Would we be able to address this through law, if we had explicit gender protections written into our Constitution? Would this be an easier problem to solve if we had that?” I think yes. Because I'm not a Constitutional scholar, and I really did come at this as an artist, I hadn't read other countries constitutions before I started making this and I--you know, I was surprised to read modern, as I say in the play, modern positive rights Constitutions: Constitutions that have human rights explicitly enshrined in them. And, I say this with humility in front of you because you know much more about this than I do but I do the play eight times a week and, so I think about these things over and over and over. And lately I've just been thinking, “Why, why don't or can't we have a Bill of Human Rights? Like, why can't we pass amendments that explicitly state the protections for, for the people who are marginalized in this country, who are discriminated against, against whom violence is routinely enacted.

[00:20:23] I don't think we should abolish the Constitution but I wonder if we could amend it to explicitly protect human rights.

EMERSON
Well, and my background is actually, before I came to the ACLU was working in international human rights and was working in a lot of countries in sub-Saharan Africa that have much newer constitutions, including South Africa, which is sort of the paradigmatic example of a positive rights constitution. And having worked in South Africa a great deal over the last decade, one is struck by the fact that having a positive rights constitution doesn't necessarily cure all that ills--

HEIDI
Yes.

EMERSON
within the society. That's not to say one shouldn't have it.

HEIDI
Right.

EMERSON
But it gets to the question of sort of, if what we really are interested in, you know, I am a staff attorney at the ACLU, but I don't necessarily consider myself a law nerd per se, like what I'm really interested in is positive change in the world, right?

HEIDI
Right.

EMERSON
Like we want to see people suffer less. We want to see people's rights respected. And if we can do that through constitutional amendments, through statutory victories, through case law--

HEIDI
Right.

EMERSON
But also through the political process and also through art and also through all these other mechanisms by which people change and societies change. So, how do you see the impact or the mission of your work? I know it's art in and of itself; it doesn't need to explain itself.

HEIDI
Right.

EMERSON
But given that there are all these different ways that different people are trying to push for a more just, a more equal world, do you see yourself as a part of that more general movement, or are you really just from an artist's perch commenting from the side?

HEIDI
[00:21:58] I didn't make the play out of a desire to be an activist or to participate in that way. I made the play like I make all my other plays by starting with, a question, an idea, an image. And for me the process of making the play has been a process of wrangling with really deep questions about, who I am, who my family is, where I am situated as an American, what it means to be American, my own history, the history of this country. Like, it's been actually a fascinating and sometimes traumatic reckoning with all of those questions.

I guess that's all to say, I went into the process from a place of innocence, like I have a lot of questions, I have a lot of things I'm trying to figure out. I want to see where this idea takes me. I want to see where this question takes me. Now, obviously, I never expected the play to have this kind of reach or certainly, I never expected it to be a piece of commercial theater. I don't make commercial theater; that's not the kind of theater I was making before this happened. So but clearly, people are connecting with these questions which makes sense to me especially at this point, in terms of what's going on in the country. So, now, I guess, I-- what I hope to do is not so much be commenting but to kind of move people and inspire people to look at the same questions I'm wrangling with and-- and if there are things I've discovered that are helpful to people or people want to take those ideas and run with them, that would be really exciting to me.

EMERSON
It's really--it's really powerful, and I'm sure no one could leave the theater without these big questions in their head, I think. I can't resist the urge to give one note--

HEIDI
Please

EMERSON
-- From a democratic and legal perspective. At least it’s more of a question than a note.

HEIDI
Sure,

EMERSON
So, we talked about the fact that there is a debate at the end.

HEIDI
Yes.

EMERSON
[00:23:45] And you mentioned that it's about abolish the Constitution versus keep it, which as you said, is a theatrical device, and it gets people involved and the--the audience is encouraged to scream when they like something and boo when they don't. And it's great and it gets a little raucous, raucous. And then, at the end of the debate, everyone's fired up, and then one audience member has the job of deciding, once and for all, whether we abolish the Constitution. And I don't know if this was a commentary on the role of courts, where we have these unelected folks making the final decision despite the fact that we could very easily poll the audience.

So I'm interested: why have a person choose at the end rather than an audience poll? Was this a conscientious commentary on the unelected judiciary, or was it just a little easier than trying to figure out whether the yays or nays have it?

HEIDI
That's a fantastic question. I mean sometimes I do say that since we don't live in a real democracy, this one person is actually going to now decide. And I will also say this: the first idea was actually just to see what someone would do, and we actually had a woman form a committee one night. She did, she chose several audience members; they got together, they conferred, and she was like, “We don't decide. We want to keep but amend it. And I'm like, well, that's keeping, so you're keeping.

EMERSON
Right.

HEIDI
The thing is if you have the whole audience decide then nobody's actually responsible.

EMERSON
Fair.

HEIDI
And I think we did think it would be interesting to like hand over the responsibility to one other person. I agree with you: in studying, for example, the South African constitution, which I think is beautiful, I recognize the great chasm between that document and what is actually happening, how it gets enacted. And so one of the things we're saying at the end is to try to fire ourselves up and fire people up to say, “If you want a different kind of country, then you're going to have to work your ass off to make that happen.” And so I think that's one of the goals of putting into one person's hand, to say, like, “This is this is on all of us. But it's also on each of us individually.”

EMERSON
Well, I think the first time I saw it the person said to keep and was cheered. And the second time the person said keep. And they were roundly booed by everyone in the audience.

HEIDI
[00:26:00] Interesting. Wow. Did you notice a difference in the audience, like who was in the audience?

EMERSON
They were a little bit older the second time around. I think the news in that day was particularly bad, so people were really ready to burn the whole system.

HEIDI
Yes, there have been a couple points in the news cycles where it seems like the audience perceives everything as being so stuck, so, so bad that they want to burn it all down.

EMERSON
Well, from burning it all down, maybe we can think of something a little bit more hopeful. What's on tap next? I know you--The play got extended into August and then it's then going on a national tour as I understand. But what are you looking forward to most?

HEIDI
Well, we're taking the show to Washington D.C.

EMERSON
Oh, cool. Great.

HEIDI
In September, for two weeks. So I'm very much looking forward to that. I'm quite interested to see what it will be like to do the show there .

EMERSON
Who might show up in the audience.

HEIDI
Who might be there. Yes.And also, it does feel exciting and potentially powerful to take it right to where these decisions are being made. And then after that, yeah I'll-- I'll take a little vacation. I haven't had a vacation in a while.

EMERSON
Well deserved.

HEIDI
A little, a little break and then we’re casting the tour with someone else. So that's going to be fascinating. I'll be working with a new actor. And my director, my great director Oliver Butler and I are trying to figure out right now what that will look like. I think to keep the integrity of the play that person will have to eventually step out and become themselves and reveal something about their own personal story and relationship to the Constitution. So we're figuring out how to do that right now.

EMERSON
Interesting. Interesting. Well, I look forward to it and those who want to see it before it leaves New York, when does it close?

HEIDI
It closes August 24.

EMERSON
And then for two weeks in D.C.?

HEIDI
Two weeks in D.C. I think from the 11th to the 22nd or something.

EMERSON
And then coming to a city near you.

HEIDI
Yes.

EMERSON
Heidi Schreck, thank you so much for this wonderful play and also for coming to see us at the ACLU. We really appreciate it.

HEIDI
[00:28:00] Thank you for having me. Thank you.

EMERSON
Thanks very much for listening. If you enjoyed this conversation, please be sure to share it with a friend and help more people learn about At Liberty. You can also rate and review the show wherever you get your podcasts.

‘Til next week, peace.

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