Deconstructing the Constitution at the 92nd Street Y

Each night before the curtain goes up on What the Constitution Means to Me, the critically acclaimed Broadway play written by and starring Heidi Schreck, ushers walk up the aisles of the Helen Hayes Theatre handing out pocket-sized U.S. Constitutions provided by the American Civil Liberties Union. It’s astonishing the booklet covers aren’t soiled with Donald Trump’s footprints, given how the current occupant of the White House has trampled all over our country’s most sacred text since becoming President. Not only is it likely he doesn’t revere it, let alone comprehend it, he also probably hasn’t read it. 

Three people who have definitely read it, comprehend it, revere it, AND obsess over it are Schreck, Professor/Author Laurence Tribe, and Dahlia Lithwick. Constitutional scholars in their own unique ways, the trio recently engaged in an enlightening “Conversation” on the Constitution at the 92nd Street Y. Lithwick, who has been covering the Supreme Court for 20 years, is a senior editor at Slate, and is MSNBC host Rachel Maddow’s go-to expert on our highest court. She moderated a pithy, perceptive, and passionate panel with Schreck (whose play is a Pulitzer Prize finalist and who received Tony Award nominations for Best Play and Best Performance by a Leading Actress) and Tribe (who has taught Constitutional Law at Harvard Law School since 1968, written 115 books and articles, and has become one of the most outspoken voices on Twitter advocating for the impeachment of President Trump). 

Dahlia Lithwick, Heidi Schreck, Laurence Tribe

But this discussion was not focused on Article II, Section 4, which is the Impeachment Clause of the Constitution. It was more a big-picture assessment about a document that for all its brilliant articulation of Democracy, millions of Americans now view it as imperfect, flawed, and in many ways an anachronism. The utopian idealism of the Constitution’s preamble—“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity . . .—has through American history been weakened by compromises (that allowed slavery and created the Electoral College) and partisan extremism that has led to the denial of millions to exercise the right to vote. Not to mention how the Constitution’s Second Amendment continues to give Americans the right to bear assault weapons that kill thousands each year, as the recent mass shootings this past weekend tragically displayed for what seems like the zillionth time.

In Schreck’s play, the final section features a mock debate between her and a high school student over whether America should keep or abolish the Constitution as it currently exists. After hearing the arguments an audience member gets to chime in with a vote. When Lithwick asked about which way audiences were leaning, Schreck revealed that in three successive recent shows, the vote had been to abolish the U.S Constitution. Which begs the question: Replace with what? 

Laurence Tribe, Heidi Schreck, Dahlia Lithwick

In Schreck’s play, which Tribe called a “pulsating experience,” she characterized the Constitution as a “caldron,” a “witches brew,” and a “test of patience or belief.” During the conversation at the Y, she and Tribe both reiterated their love-hate relationship with the document and Schreck offered her view that America needs a more “positive rights” constitution, as opposed to the “negative rights” version we live under now. Examples of “positive rights” would include the argument being made by many of the current Democratic Presidential candidates that heath care should be a human right, or the long-delayed passage of the Equal Rights Amendment, which would guarantee the equality of rights under the law not be denied or abridged by the United States or by any state on account of gender. Constitutional “originalists” and “negative rights” advocates (such as the late conservative U.S. Supreme Court Justice Antonin Scalia) are against passage of the ERA, arguing that the equal protection clause (No. 1) of the 14th Amendment to the Constitution does not protect against discrimination on the basis of gender.

“The equal protection clause is not interpreted the right way,” offered Tribe, and as Schreck emphasized both in her play and on the panel, the clause certainly hasn’t recognized women. “The word ‘woman’ appears nowhere in the Constitution,” said Schreck, who observes—and rightly so–that the Constitution was created basically by privileged, propertied white men FOR people like themselves. Recognizing the rights of women, whether in the Constitution, by the Congress, or by the Supreme Court, has long been an afterthought—if a thought at all. And today even a women’s right to an abortion—as secured in the landmark Roe v. Wade decision—is in danger of being overturned by a conservative, originalist-dominated Supreme Court, which as Lithwick reminded (to applause from the decidedly left-leaning audience) would have a much different makeup had Republican Senate Majority Leader Mitch McConnell not engaged in his own trampling of the Constitution in 2016, specifically Article II, Section II, when he stifled President Barack Obama’s power to nominate moderate Judge Merrick Garland to our highest Court. “The people we trust to enforce the Constitution are not always the greatest people,” said Tribe. 

As she revealed in her play and again at the 92nd Street Y, Schreck has long had “a love affair with the 9th Amendment, and Tribe clearly proved her soul mate when it comes to the short, sweet, but powerfully meaningful and often interpreted section that reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Framers believed that all rights belonged to the people and the 9th Amendment basically means that even if a right is not specifically mentioned in the Constitution, it still belongs to the people. For example, the right to privacy is not noted in the Constitution, but it is still a right that the government cannot take away. So as Schreck and Tribe point out, if all Americans have a right to privacy, why are mostly male elected officials—both in Congress and state houses—constantly trying to legislate against a woman’s right to decide what to do with her own body?

“Tyranny happens by the slow drip, drip, drip process we are now witnessing,” said Tribe, in reference to what he believes is a lawless current Presidency and potential destroyers of the Constitution run amuck. “But,” added Schreck, “there is hope if we are willing to do the work of Democracy. Everybody has a boss and WE THE PEOPLE are the bosses of the Constitution. The Framers are us.” 

If there was any downside to this compelling seminar it’s that it wasn’t longer. One hour for these distinguished and ultra-knowledgeable guests to engage in such an important and timely discussion didn’t seem time enough. And given that ushers took question cards from hundreds of audience members, there should have been at least 20 minutes devoted to the audience Q&A on top of the hour-long conversation. 

Stephen Hanks is a veteran magazine editor and writer who has long been involved in politics as a campaign volunteer and speaker. In 2018, he produced five cabaret variety shows in New York to raise funds for Democratic candidates running for Congress in the midterm elections. His political opinion blog “2020 Vision” can be found on Facebook.

Photo Credit: Rod Morata
Top: Heidi Schreck, Laurence Tribe, Dahlia Lithwick

Title: What the Constitution Means to Me: Heidi Schreck and Laurence Tribe in Conversation with Dahlia Lithwick
Featuring: 
Dahlia Lithwick (Moderator), Senior Editor at Slate
Heidi Schreck, Playwright and Actor
Laurence Tribe, Constitutional Law Professor at Harvard University
92nd Street Y
1395 Lexington Avenue
Sunday, July 28, 7:30 PM