Preet Bharara: In honor of the 4th of July, we’re bringing you something special from Café. You can now purchase a signed copy of my book, Doing Justice, at shop.cafe.com and when you buy a signed copy of my book, you’ll receive a Café Insider membership for two months free. Café Insider helps you make sense of news at the intersection of law, politics, and justice. Insiders get an exclusive weekly podcast, a newsletter, conference calls and more. If you’re already an Insider, you can get a signed copy of Doing Justice, and you’ll still get two free months. So head to shop.cafe.com. That’s shop.cafe.com. From Café, welcome to Stay Tuned. I’m Preet Bharara.
Heidi Schreck: Pretty quickly, I started to understand that if I was going to talk about my own personal connection to the Constitution, I would have to talk about my own body in the Constitution. Supreme Court decisions that affected me most extremely had to do with of course birth control. It had to do with abortion and then in looking at Supreme Court decisions over the years having to do with women’s bodies, I realized how much violence toward women was not only not addressed by our Constitution, but also sort of enshrined in it.
Preet Bharara: That’s Heidi Schreck. She’s the star of the Broadway play, What the Constitution Means to Me. It’s part memoir, part history lesson and even part public debate. I saw the show on its opening night and found it so moving, I decided I had to get Heidi on the podcast. We discussed the inspiration for her unlikely play about the Constitution, how the personal to the universal and how the debate keeps shifting on whether to keep or rewrite our founding document, but first let’s get to your questions. That’s coming up. Stay tuned.
Preet Bharara: Pod Save America co-host, Tommy Vietor thought foreign policy was boring until he got the education of a lifetime working for President Obama’s National Security Council. His weekly podcast, Pod Save the World brings you behind the scenes. Hear about White House situation room meetings with people who were there. Every week he’s joined by formal Deputy National Security Advisor and resident analyst Ben Rhodes who was my guest on Stay Tuned a few weeks ago to talk about Iran. New episodes of Pod Save the World drop every Wednesday. Subscribe now in Apple Podcasts, Stitcher or you know, wherever you get your podcasts.
Preet Bharara: Hey folks. Welcome to a special Fourth of July edition of Stay Tuned. The interview today is I think a special one. For a lot of people in America, the Fourth of July is about fireworks and about barbecues and about getting together with your family. Maybe going to a ball game and that’s all great and that’s all good and I do that every Fourth of July also, but it’s not a bad time to think about that document that is at the foundation of ordered society in the United States of America. That document being the Constitution. And not to talk about it in a way that’s dry and academic and boring, but the way that Heidi Schreck brings the Constitution to life in her play that you’ll hear about.
Preet Bharara: What was startling to me when I saw What the Constitution Means to Me and also as I spoke to Heidi Schreck was this notion that the Constitution is not only a living document, it’s a document that contains principles that matter to our daily lives: how we treat our bodies, how we treat other people, how we get along in society, what’s fair, what’s just, what’s unfair, what’s unjust. So as you listen to the conversation between me and Heidi, think about the ways that the Constitution effects you. Think about the ways maybe the Constitution could be made better. Think about reading it again. It’s a bit shorter than the Mueller Report, that’s for sure. And think when you’re watching the debates among the thirty or forty thousand Democrats running for the nomination whether you think they’re vision of what America should be like under the Constitution fits with yours.
Preet Bharara: For this episode, rather than focus on the news that’s going on, and there’s plenty of it. I thought we’d just sort of spend this period of time talking about the Constitution, talking about patriotism, talking about what this country is about. One question I got in the last few days comes from a listener, Francis Yancy who says, “Preet, I’m curious if your parents are disappointed in the country to which they emigrated.” I am. I moved to a democracy 20 years ago. It isn’t one now and it goes on to talk about the problems that this listener sees in American and I hear that and I get all that, but to answer a very forthrightly your question about whether or not my parents are disappointed, they are not. They are disappointed in some of the leaders that have been elected in America. They’re disappointed in some of the policies, especially with respect to immigration because we were welcomed with open arms to this country. My brother and I had an opportunity to make something of ourselves in this country and nothing will take that way.
Preet Bharara: So when we get together as a family, we still talk about how wonderful a country this is. I told my kids once that even with Donald Trump as President, America is still the greatest country in the world. It needs some work. We need to do some stuff to make it better, but it is still the case that there is more freedom. There is more opportunity. There is more mobility. There is more idealism here than any place I’ve ever been and we have no intention of moving. It’s a common joke, maybe some people mean it seriously, that if Trump gets elected or so and so gets elected, they’re going to move to Canada or they’re going to move to Scandinavia or some place else and I know it’s meant mostly in jest, so I don’t want to take it too seriously, but I think that’s the wrong way to think about it.
Preet Bharara: At precisely the moment that you think the ideals you care about in the country are under attack or being undermined, that is not the moment to flee. That’s the moment to stay. That’s the moment to fight. That’s the moment to vote. That’s the moment to make your own voice heard. So America returns to what you think it’s supposed to be. Now I asked last week for folks to send their views of what they think patriotism is. Lots of people have lots of definitions and I think people can be patriotic in their own individual ways. Here’s some examples from leaders of the country, both fictional and non-fictional and what they think about patriotism. Take a listen to Barack Obama’s campaign speech from Independence, Missouri 2008, Documentarian Ken Burns, Bill Pullman’s speech from the movie Independence Day, actor Michael Douglas’s speech from The American President, Trump at the UN in September 2018, First Lady Eleanor Roosevelt’s radio address after Pearl Harbor and President Ronald Reagan in January 1989.
Barack Obama: When we celebrate the birth of our Nation. I think it’s fitting to pause for a moment and reflect on the meaning of patriotism.
Ken Burns: What matters are the ideas, not the false patriotism. The only desecration is by the people who manipulate the Constitution.
Bill Pullman: Perhaps it’s fate that today is the Fourth of July and you will once again be fighting for our freedom.
MIchael Douglas: You gather a group of middle aged, middle class, middle income voters who remember with longing and easier time and you talk to them about family and American values and character.
Donald Trump: As my administration has demonstrated, America will always in our national interest. We reject the ideology of globalism and we embrace the doctrine of patriotism.
Barack Obama: Precisely because our ideals constantly demand more from us, patriotism can never be defined as loyalty to any particular leader or government or policy.
- Roosevelt: We know what we have to face and we know that we are ready to face it.
Ronald Reagan: An informed patriotism is what we want. Are we doing a good enough job teaching our children what America is and what she represents in the long history of the world?
- Roosevelt: We are the free and unconquerable people of the United States of America. There will be high moments in which your strength and your ability will be tested. I have faith in you. I feel as though I was standing upon a rock and that rock is my faith in my fellow citizens.
Barack Obama: We may hope that our leaders and our governments stand up for our ideals, stand up for what’s right and there are many times in our history when that’s occurred, but when our laws, when our leaders or our government are out of alignment with those ideals then the dissent of ordinary Americans may prove to be one of the truest expressions of patriotism.
Preet Bharara: Coming up after the interview, we’ll play clips from some of your responses to the question, “What does patriotism mean to you?” and I’ll give you my thoughts too.
Preet Bharara: My guest this week is Heidi Schreck. After years of off Broadway and television writing success, she’s now a two time Tony nominee and Pulitzer Prize finalist from her Broadway show, What the Constitution Means to Me. If you haven’t seen it yet, go. You’ll join the likes of Supreme Court Justices Ruth Bader Ginsburg and Sonia Sotomayor, but we’ll get to that. Heidi talks to me about growing up and outgoing nerd, how her family history is tied to the Constitution and what it means to be patriotic. That’s coming up. Stay tuned.
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Preet Bharara: Heidi Schreck, thanks so much for being on the show.
Heidi Schreck: Thank you for having me.
Preet Bharara: Now speaking of shows, you have one called What the Constitution Means to Me and at the risk of pandering right off the bat with my guest, I went and saw the show and it’s amazing. It’s a real pleasure and treasure, I rhymed that myself, and so it’s a treat to have you on. Thanks for being here.
Heidi Schreck: Thank you. I’m honored to be here.
Preet Bharara: So you’ve done a million things including writing and now performing. You got your start, I noted with great pride, in high school doing speeches.
Heidi Schreck: Yes.
Preet Bharara: One of the origins of the production you’re doing is based on the speech you gave in high school, but you did all that on the auspices of the NFL.
Heidi Schreck: Indeed. I was an active member of the NFL all four years of high school.
Preet Bharara: So people are like, “What are you talking about?” You don’t look like you played football. No, the NFL also stands for…
Heidi Schreck: National Forensics League in debates.
Preet Bharara: So you did autopsies?
Heidi Schreck: You’re right, that is the next question everyone asks.
Preet Bharara: Because the National Forensics League, what kind of weird people were you? Doing cadaver work in high school. So the National Forensic League in which my son now is a participant is actually one.
Heidi Schreck: It is speech and debate.
Preet Bharara: Speech and debate.
Heidi Schreck: Yeah. I participated in many events. I did oratory one year. I did extemp which was my favorite.
Preet Bharara: Extemporary speaking.
Heidi Schreck: Extemporary speaking.
Preet Bharara: That’s what my son does.
Heidi Schreck: Yes, that’s so exciting. I did dramatic interp, DI we called it, where I gave a very moving speech from Anne of the Thousand Days, begging my husband the king not to kill me and I also did impromptu speaking which was like three to five minutes.
Preet Bharara: This is like impromptu right here.
Heidi Schreck: It is impromptu, yes. I loved impromptu. It was actually one of my favorites. You would get an issue of the day. You would have 10 minutes to go in a room by yourself with a lot of magazines and books and then you’d have to construct a three to five minute speech and come back out and deliver it.
Preet Bharara: There’s like this adult club and I run into people, journalists or lawyers or whatever and somehow it’ll come out that we did speech and it’s not something we put on our resumes as adults, although you kind of do.
Heidi Schreck: I do, yeah.
Preet Bharara: I mean you do it in a big way. I mean, so tell us for folks who don’t know and haven’t seen the show yet, which by the way I will tell folks before they get irritated hearing about this wonderful show, thinking it’s only playing on Broadway in the great New York City, you have plans to bring it everywhere.
Heidi Schreck: We do. We’re actually going to DC in the fall, in September and to Los Angeles the following January and then we have a plan in motion to take it all over the country, which I’m incredibly excited about.
Preet Bharara: And people should go see the show. So What the Constitution Means to Me, it’s basically a cabaret musical?
Heidi Schreck: Yes exactly. As you can tell from the title-
Preet Bharara: What is the show?
Heidi Schreck: The show is quite hard to describe. So I like to describe it this way. The show is based on a contest I did as a teenage girl, where I would travel the country giving speeches about the Constitution at American Legion Halls for scholarship money. So my Mom was a high school debate coach and she found this contest. She had many students succeed at this contest and she basically came to me when I was 14 actually and said, “You will be doing this contest because we’re high school teachers and we need money for college,” and I said, “Okay,” and then I loved it. I really fell in love with learning about the Constitution. Also there’s an extemporaneous part of the contest where you draw an amendment or an article from a hat and then you have to speak about it extemporaneously.
Preet Bharara: This is very much like football.
Heidi Schreck: It’s totally.
Preet Bharara: So NFL makes total sense.
Heidi Schreck: Yeah, the adrenaline I imagine is the same, but every year they would pick three articles, three amendments. So you knew going into that year that you had to really learn about those six things and then you had to be ready to speak about them and I loved that part. I don’t know why. I really liked the feeling of improvising on stage. So my show has a little bit of a sense of that. I developed it improvisationaly. I recreated the contest. Go back to inhabit my 15 year old self.
Preet Bharara: How painful was that?
Heidi Schreck: That’s really painful actually. Every time I do it, I remember all the things like my braces. I had braces and a permanent and really bad chin acne and all of that whenever I step back into the 15 year old, the feeling of that really comes back to me quite viscerally, but anyway, in order to win the contest, the prompt was you had to draw a personal connection between your own life and the Constitution which is difficult for most of us to do, but particularly at 15. So I did it in quite a general rah rah American kind of way at 15 and then I thought about 10 years ago it would be, I’m a playwright and an actor and I thought it would be interesting to go back and take that prompt as seriously as I could. Really actually examine how my life might have been shaped by this document and the lives of the people in my family and in doing that research and that work, I began to center on how profoundly it had effected the lives of the women in my family.
Preet Bharara: We were discussing it before you came on. You coined a great phrase that I wish I would have known some time ago. In high school you said you were an outgoing nerd.
Heidi Schreck: Yes.
Preet Bharara: So is that an oxymoron or not?
Heidi Schreck: I don’t think it is. I think there are introverted nerds. People who like to be alone with their minds and don’t like to interact socially. I was not one of those people. I was super into school. I was really into history. I read books all the time and I gravitated towards other nerds, but I was really also very social.
Preet Bharara: So I’m trying to think about a show I might do off Broadway somewhere. Maybe it will go to Broadway and I wonder if this is, obviously very different things and I mean the compliment by the comparison. When Lin-Manuel Miranda is like, “I’m going to do a rap show about Hamilton.” Assuming there are people who are going to fund this thing, we’re like, “You’re nuts.” What was it like when you started telling people you were going to do a show called What the Constitution Means to Me and have it not just be educational but entertainment and good, fun, solid thought provoking entertainment?
Heidi Schreck: Well so luckily I’ve worked in New York theater for about 20 years and I started in downtown theater, mostly downtown experimental theater. So I have a lot of deep relationships there. So I was able to go to this incredible theater called Clubbed Thumb and say, “Hey, I have this very strange thing I’m working on. I’m going to revisit this contest I did. It’s going to be about the Constitution. It’s going to be about my life, the lives of four generations of women in my family. It’s going to be about Constitutional law and American history but I don’t know what it looks like, but it’s also going to be funny and I think it’s going to end with a live debate about whether to abolish the Constitution.”
Preet Bharara: And then you can also take the APA examine.
Heidi Schreck: Yeah, exactly.
Preet Bharara: Then right after that you go straight to the Advanced Placement test.
Heidi Schreck: But luckily for me, the artistic director of that company, Maria Stryer, I’ve worked with her for years. She knows my other plays. She knows my work and was really like, “Hey, I trust you. Even if you don’t know what you’re doing yet, I trust you to make a piece of theater that’s exciting and strange and interesting.” So she gave me carte blanche. Now granted it was a 10 day run in a 70 seat house. The risk was low.
Preet Bharara: Well actually I heard about your show-
Heidi Schreck: Oh you did?
Preet Bharara: … a long long time before you opened on Broadway. I don’t care until it’s on Broadway, that’s how I roll.
Heidi Schreck: Of course, you and RBG like to wait.
Preet Bharara: But it was recommended to me by multiple people who saw it and said in particular, not just that they thought it was great, but they thought I in particular would like it given my background in what I talk about. So I’ve been dying to see it for a long time. So you’ve mentioned, did a little name dropping there.
Heidi Schreck: I did. I know.
Preet Bharara: I was going to get to it. It’s like Heidi’s worried. “Preet, are you going to mention?”
Heidi Schreck: I know, but I’m so excited it just happened.
Preet Bharara: It’s great that you’re talking about how wonderful the show is, but you’re wondering, “Is he going to ask me about the time that Supreme Court Justice Ruth Bader Ginsberg came to the show?” Yes I’m going to ask, but thanks for jumping the gun on that.
Heidi Schreck: No problem.
Preet Bharara: So what was that like?
Heidi Schreck: We can talk about it later, oh my God. Well first of all, I will say the best part is it was my dream she’d come, obviously, and we’d been inviting her and inviting her and I think we had heard second hand that she wanted to wait to see how the reviews were, which is totally [inaudible 00:19:54]. She’s very busy and I don’t want her to travel.
Preet Bharara: Did you make sure that she was very safe when she was in the audience?
Heidi Schreck: Oh we did. Yeah, she was incredibly safe. I mean she and her people made sure she was safe. We all, our entire cast was overwhelmed. I actually at the very end of the show there’s a piece I won’t give away, but she is referenced in some way and I always turn my back to the audience at that point. Anyway, it’s part of my blocking, but I actually just began to sob when my back was to the audience and had to recover very quickly and our 18 year old debater was on that night, Thursday Williams and she is just, I mean she carries an RBG pencil out when she debates. Her whole dressing room is decorated with paraphernalia.
Preet Bharara: I’ve got an RBG pull up bar. That’s what I have.
Heidi Schreck: That’s great. Oh yeah, they also do the RBG workout. The young women do the RBG workout backstage.
Preet Bharara: You really think they can handle it?
Heidi Schreck: Yeah, so it was profoundly moving to have her there.
Preet Bharara: Did RBG shut off her cellphone?
Heidi Schreck: As far as I know.
Preet Bharara: At any point did she open hard candy during that? Show no. Did she come back afterwards?
Heidi Schreck: She did.
Preet Bharara: What did you guys talk about?
Heidi Schreck: She invited us to the Court which was exciting and then she told Thursday Williams, our debater, that she couldn’t wait to see her on the Court one day. That is one of Thursday’s dreams and I think it will happen. She signed our wall. We have a little wall. “To a Supreme show,” which is a very good pun and then we talked actually about Thurgood Marshall’s view of the Constitution for a little while because we debated [crosstalk 00:21:27]-
Preet Bharara: So it was light stuff?
Heidi Schreck: It was light stuff, yeah. The idea of being able to love what the Constitution has become and what it’s capable of becoming even if you criticize and in some case hate its beginnings which I thought was very moving.
Preet Bharara: Yeah you mentioned reviews and maybe RBG was waiting for a review. Can I read a portion of one? You’re not going to dislike this.
Heidi Schreck: This isn’t one of the bad ones?
Preet Bharara: No, no. That’s what I said, you will not dislike this. This is from the New York Times, one of the New York Times reviews and I thought this was a very interesting way of putting it. So people understand something about your show because the title doesn’t quite convey it and they wrote, “It is a tragedy told as a comedy, a work of inspired protest, a slyly crafted piece of persuasion and a tangible contribution to the change it seeks. It is not just the best play to open on Broadway so far this season, but also the most important.” Do you read your reviews? Did I just surprise you?
Heidi Schreck: I have my husband read parts of them to me.
Preet Bharara: So that’s pretty good.
Heidi Schreck: I have him summarize them.
Preet Bharara: Do you agree, and put modest aside, do you agree it’s important? And if so, why?
Heidi Schreck: It certainly has been important to me. I learned so much-
Preet Bharara: Well I hope so.
Heidi Schreck: … making it. Well, yes. In addition to the way it’s sort of transformed my life, I will say I’ve learned so much over the past 10 years. Making it? I learned about our country, a lot about myself and it really transformed my relationship with my mother. So as you know from the play, I have a history of domestic violence in my family and sexual abuse and this was something, my Mom was the one who experienced it first hand, something she carried with her her whole life and at times made our relationship difficult in part because she was just carrying so much grief and these things are hard to talk about and I really enlisted my Mom while making the piece to help me and also to let her know what I wanted to share and have her, share her feelings about that. What she was comfortable sharing and not sharing and so it became a collaboration between the two of us and I have to say I’m just so grateful to my Mom.
Heidi Schreck: My Mom is a survivor who her whole life has supported other survivors but she also just, I feel like our relationship has moved to a whole new plane of honesty and love and respect and that has been tremendous and then I will say in terms of its importance to other people, I’ve been incredibly, honestly a little shocked, but very moved by how many people it speaks to and how the more personal you’re willing to get when you’re sharing your story, that actually the more it resonates universally. That has been something that I have learned by making this play. I did not think the play would appeal to the thousands and thousands and thousands of people it did. I thought it would be a small little thing and so I do think it’s clearly important to a lot of people that I speak out loud the things I speak out loud about in the show.
Play Actor #1: Clause Three. Nor shall any state deprive any person of life, liberty or property without due process of law. Your time begins now.
Heidi Schreck: Clause Three is the most miraculous in our entire Constitution. The due process clause. We stole it from the Magna Carta. It ensures that the government cannot lock you up, take your stuff or kill you without a good reason. It is also the heart of the 1973 Supreme Court decision, Roe vs Wade, a case that is all about penumbras. With the help of Justice William O. Douglas’s beautiful penumbra metaphor. Justice Harry Blackman used the 9th Amendment to find the right to privacy in the 14th Amendment and he argued that this gave a woman the right to decide what to do with her own body. Well actually, he argued that a doctor and his patient have a right to privacy so that he can decide what to do with her body. This was a very special moment for the 9th and 14th Amendments. They came together in a, Wonder Twins powers activate kind of way, to protect a woman’s right to choose. Of course depending on your view, gentlemen, you might consider this an unholy alliance.
Heidi Schreck: My view, which I do feel obligated to share even if it endangers my scholarship money, is I support a woman’s right to choose. Thank you. Thank you. Well I would like to be very clear that it is a choice that I would never make personally.
Preet Bharara: I think one of the reason it resonates and why it has moved thousands and thousands of people and the reason I have you on, is the title itself implicates something. What the Constitution Means to Me, because if you think of the Constitution. It’s an impersonal document and you just mentioned and to spoil the stories, you talk about this very personal pain your family experienced, domestic violence in pretty strong terms and in stark terms and people might think to themselves, “Well what does that have to do with the Constitution? That’s just stuff that happens in my family,” and repeatedly time after time after time, you make the point that the Constitution has a connection to people’s lives even though that’s not how it’s taught in school. What do those experiences, domestic violence and relationships with other folks and choices you make about how you conduct yourself, your body or otherwise, what does that have to do with the Constitution?
Heidi Schreck: Well pretty quickly I started to understand that if I was going to talk about my own personal connection to the Constitution I would have to talk about my own body in the Constitution because the Supreme Court decisions that effected me most extremely had to do with of course birth control, had to do with abortion and then in looking at Supreme Court decisions over the years having to do with women’s bodies and women identifying bodies in female bodies, I realized how much violence towards women was not only not addressed by our Constitution but also sort of enshrined in it in many ways. The lack of protection, I mean the lack of protection for so many people in our Constitution which has to do with of course the conception of what a Constitution ought to be the the Founders had.
Preet Bharara: We’ll start off by excluding a whole bunch of people to begin with.
Heidi Schreck: Yeah, it started out by not only excluding a whole bunch of people including women, but also relegating black people to less than human and also basically naming indigenous people as non-human. So yeah, it began as a very exclusive, I think, violent document and in looking at the Constitution, trying to understand how the women in my family might have been more protected by law, I realized how deeply that it had failed them. Just the fact that there is no Equal Rights Amendment. That there is actually no, the Constitution doesn’t say as Scalia noted, the Constitution doesn’t say you have to discriminate on the basis of sex, but it also doesn’t say anything about not discriminating on the basis of sex and how difficult it has been for women to win their rights under a Constitution that was created by men for men without acknowledging them explicitly in a way.
Play Actor #3: Well, just as she could have complained to the police earlier, she could have gone to the court earlier when she saw that the police weren’t doing anything.
Play Actor #4: The police told her to continue to wait. They strung her along, Your Honor. The crux of the problem here is that she relied upon the police to enforce her restraining order. They told her to hold on [crosstalk 00:29:03].
Play Actor #3: Well that may be a tort, but it’s not necessarily a denial of process if the proper place to seek that process was from the court that issued the restraining order.
Heidi Schreck: But I also stumbled upon many Supreme Court Cases of course having to do with sexual violence and domestic violence and realized that in just case after case, the court basically confirmed that the Constitution, that’s not where we should look to-
Preet Bharara: There’s a particular case you talk about-
Heidi Schreck: … for protections, yeah.
Preet Bharara: … at Castle Rock, [inaudible 00:29:31] Gonzales and you play a clip from the argument before the Supreme Court and you play a clip from the late Antonin Scalia. Why do you do that?
Heidi Schreck: I do that for a few reasons. That case, Gonzales versus Castle Rock which was decided in 2005 is the closest to the circumstances of my own family and I have become close with Jessica [Landingham 00:29:53] since I started making the show. I have such deep admiration for her and her work, but she was in a relationship with a violent husband. She tried to get protection from him. She tried to get protection for her children from him. The police would not help her in any way and her husband ended up killing their three daughters. She sued the Castle Rock Police Department for failing to protect her or even to attempt to protect her and her daughters-
Preet Bharara: Under the Constitution.
Heidi Schreck: … under the, yes. She first just did this locally, right? She sued the police department because the state of Colorado had recently passed legislation that said police were required to show up if someone violated a protective order and she had a protective order. So she sued the police department for failing to do their job. She won, but then of course the city appealed. It made it all the way to the Supreme Court and the Supreme Court basically overturned her case so that she was not entitled to protection from the police under the Constitution. I found the case confusing in so many ways in part because they decided to overturn a decision that a state court had made which I thought Scalia, that was not his thing, but I also was also, just as a human being and someone who has spent her life in the theater, when I listened to the case on [inaudible 00:31:13].org I was just struck by how inhuman the law felt. How divorced from human feeling the discussion felt. The arguments over the word “shall.” Does shall mean must. Does it create a property interest?
Sup Court Judge: Wait. I thought we were just talking here about state law as to whether shall means shall. Do you think that it’s a matter of state law whether if it does mean shall, it creates a property interest for purposes of the federal Constitution.
Heidi Schreck: Actually when you listen to the case, the truth is the male justices voices are relatively lacking in feeling as the speak. Ruth Bader Ginsberg actually gets quite emotional during the case and she dissented, but I was just really struck by the chasm between the law and a real human life, real human lives. I found it so upsetting to listen to and it just made me think how easy it is for the law to get perverted into this thing that we forget that real human lives are at stake. So that’s why I play that tiny clip so you can hear they decided this case was about. They decided it was about the word “shall,” how little emotion they have in talking about this woman’s devastating loss and how to me that’s just a signal that the law, in that case when the law is isn’t working then we need to look at the law.
Preet Bharara: So let’s talk about the Constitution, which is part of our law and you said a lot of things about the Constitution, both outside the show and in the show and the Constitution comes under a descent amount of criticism and you have the whole debate at the end that you had been referring to where you literally have sort of an improvised debate on the stage between you and one of two high school students. Remarkable young women, about whether we should keep the Constitution or trash the Constitution. So here’s some things that you’ve said about the Constitution. In the speech that you gave in high school, you called the Constitution a crucible. You’ve also said, this is my favorite phrase and you know what’s coming, you’ve called the Constitution “a living warm blooded, steamy document for summer reading.” I’m taking the Constitution to the beach. Is that the version of the Constitution you get in the paper bag?
Heidi Schreck: Exactly.
Preet Bharara: The brown paper bag?
Heidi Schreck: You rip the cover off so you can’t see what you’re reading.
Preet Bharara: “A warm, steamy document.”
Heidi Schreck: That’s my 15 year old self saying that. Although I do think it’s living and warm blooded. Steamy? I don’t know.
Preet Bharara: You were certainly an outgoing nerd. You’re calling it a steam document back then. I was 15 once and I never thought of it as steamy actually and then you say, “On the one hand the Constitution is a magical thing. On the other hand it’s an appalling document.” How do you square all those things and how do you think about it now?
Heidi Schreck: I don’t think they can be squared. I don’t try to square them. In fact I think the play itself is trying to hold both of those things at once. I’m holding both my reverence for it and also my deep disappointment and in some cases disgust for it at once and also my director, my great director Oliver Butler and I talked from the very beginning about, like the action of the play is the action of questioning. I’m not there to give anybody any answers about the Constitution. It really is an act of live investigation. I’m out there wrangling with my conflicting feelings about the document, my questions about the document. So the play has evolved as more Constitutional scholars come to see it and then I can ask them, “Hey can you explain this to me?” So the play does change as I learn new things and it really is, that’s what it is. It’s an act of questioning. It’s an act of trying. I’m trying to understand myself, my own history, the country’s history, the Constitution’s history. So we think of it as a very active thing.
Preet Bharara: Can I throw another phrase at you?
Heidi Schreck: Sure.
Preet Bharara: Is the Constitution a patchwork quilt?
Heidi Schreck: No. I don’t think so. I think it’s alive.
Preet Bharara: Why am I asking you that question?
Heidi Schreck: Because my rival, Becky, I can’t remember her last name.
Preet Bharara: So let me just update the audience because they’re like, “What the hell are these guys talking about?” In the play not to, again, this is giving very little away, you have a nemesis, competitor in these speech tournaments that you would enter into named Becky who would call the Constitution a patchwork quilt and this would make you crazy.
Heidi Schreck: Yes. It made me, well yes. Mainly I was crazy because she beat me a lot. I hated that. I’m very competitive, but I think subconsciously I hated it because a quilt, while it has, a good patchwork quilt can have history to it and stories and [inaudible 00:35:57]. It’s also an inanimate object and our Constitution is not an inanimate object in spite of what some people want to.
Preet Bharara: Have you ever seen a warm blooded, steamy patchwork quilt?
Heidi Schreck: No I haven’t. No I haven’t and I really did love the metaphor. The crucible because it is, it’s a living, transformative, it’s a container for a living transformation which is how I see and view our Constitution and I believe that makes me an originalist as RBG said. I think the original idea behind the Constitution was that it could live and grow and change. I don’t think it should be read as something etched in stone. I think that’s where we get into deep trouble.
Preet Bharara: How do you define justice?
Heidi Schreck: That’s such a big question.
Preet Bharara: It is. You’ve got like 60 seconds.
Heidi Schreck: I’ve got 60 seconds?
Preet Bharara: I mean after doing this work and thinking about things, if a child were to ask you, “Well what is fairness? What is justice?” What’s a simple way to describe it in your mind?
Heidi Schreck: I honestly, and maybe this is what I’m trying to bridge in the show. So I grew up going to the Presbyterian Church. I’m agnostic now. I don’t go to church, but I do think because one of the first things I learned was do unto others as you would have done unto you. I still carry that as a kind of bedrock for how to measure justice. I also think that love is part of justice. That actually acknowledging the humanity of every single human being and respecting that, the dignity of that, I think is justice. I think it’s actually quite hard to do as we can see, but I think that it’s one way to measure whether something is just or not to say like, “Would I want that to be done to me,” and also am I fully acknowledging the specific real visceral humanness of that other person?
Preet Bharara: We’ll be back with Heidi in just a moment.
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Heidi Schreck: And then this is when William O. Douglas first whipped out his big penumbra metaphor. This is when he said for the first time that one thing the 9th Amendment surely guarantees is the right to privacy and that this allows a woman to put in an IUD as long as her husband says that it is okay. This was a very scary moment for William O. Douglas because nobody understands the 9th Amendment. Nobody. Justice Scalia said he did not even remember studying it in law school, but they had to dig up this amendment that nobody understands because there was just no other way to deal with the female body because our bodies, our bodies, had just been left out of this document from the beginning. They were just like, “We don’t know what to do with this kind of body.” I’m sorry sir. I know that you do not speak like that.
Preet Bharara: It’s an amazing thing how people think the laws provide for something, even when common sense does not. My daughter didn’t do the NFL, but in school once she had to write a speech where you’re persuading other people of something and I said “One issue that’s interesting is equal pay for women,” and my daughter looks at me and she says, “That’s a terrible topic,” and I said, “Why would you say that?” She said, “Well one of the requirements of the assignment is there has to be an issue where there’s reasonable opposition to the point of view and I don’t understand how anyone could have any reasonable-” I said, “Why don’t you go and research it and see. It may be reasonable or not, but there has to be some basis of opposition,” and she went up and did some Google searches and came back down and was like, “I think I’m going to be writing about this,” and that ended up being her speech topic.
Heidi Schreck: That’s incredible.
Preet Bharara: Because to an intelligent high school student, also an outgoing nerd one might say. She’s going to not like this characterization.
Heidi Schreck: I love it.
Preet Bharara: Yeah, you don’t realize that there are a lot of things that the law does not provide for. So there’s this extraordinary ending to the play where you debate a high school student.
Heidi Schreck: Yes.
Preet Bharara: And the debate, it’s a little bit astonishing when you’re sitting in the audience because you get very used to this idea of the Constitution as perfect and everything is wonderful and the Founding Fathers were great and it’s a stark debate. So the question in the debate is what?
Heidi Schreck: We debate whether or not to abolish the United States Constitution and start over.
Preet Bharara: With a Constitutional Convention.
Heidi Schreck: With a Constitution Convention, yes.
Preet Bharara: And you think it’d kind of be lopsided, but there are arguments that the audience finds plausible on both sides of that question.
Heidi Schreck: Yes and the audience votes about 15% of the time to abolish.
Preet Bharara: 15%? Are there particular nights of the week?
Heidi Schreck: No, but there are particular, depending no what’s going on in the country, that seems to effect it. Like when people feel like things are really, our audience feels like things are not working.
Preet Bharara: Really in Manhattan? People think that?
Heidi Schreck: Yeah. It’s shocking, right? But there’s a sense of people feeling like, “We need to start over. This is clearly not tenable,” but then of course there’s the other argument which is, “What protects us from tyranny if we open up a new Constitutional Convention?” The audience really responds to, well a few ideas. I think the idea, I’d like to think they respond to this. We have as you know the oldest living constitution in the world. There have been in the 20th and 21st centuries a lot of brand new constitutions made modern, what we call positive rights constitutions that take a more active stance, at least on paper, at protecting individual human rights and protecting the environment and guaranteeing healthcare and guaranteeing education. I like these constitutions. I wish we had a constitution like that. The question of what happens in reality is, that’s a whole other debate. Are these constitutions effective? But I really think having human rights, positive human rights enshrined into our Constitution and maybe we could do that with amendments. I am 100% in favor of that and I think people don’t realize that we don’t have that.
Heidi Schreck: I even, talking about the ERA because I’ve been working with the ERA Coalition, they’ve done these surveys where 90% of people think we already have an Equal Rights Amendment or think we already have protections, those kinds of protections based on gender, but we don’t and then also I do say this in the show, 179 constitutions now have explicit gender protections written into them, into their documents and we don’t have that, but I think a lot of people think we do.
Preet Bharara: Is there any line, either in the debate or throughout the play, that gets a reaction that you were surprised by?
Heidi Schreck: Um, let’s see, that I’m surprised by. I mean I will say that when our 14 year old debater argues to abolish, Rosedely Ciprian. She uses a Harry Potter metaphor that is really, the audience goes wild for. So she talks about the Constitution that’s a horcrux.
- Ciprian: Judges, our Constitution is like a horcrux in Harry Potter. It is a piece of our Founding Fathers soul that is still somehow still alive ruling over the rest of us.
Heidi Schreck: Apparently a horcrux is like an evil wizard leaves a little part of his soul in the horcrux so that it will, I don’t know.
Preet Bharara: Oh my goodness.
Heidi Schreck: Pass through eternity or something, and she thinks we need to destroy the horcrux. Sort of destroy the original sins that were baked into the original Constitution and start over. The audience loves that.
- Ciprian: Let me explain. In Harry Potter, a horcrux is an object in which a dark wizard has hidden a fragment of their soul for the purpose of gaining immortality. It’s time… Mm-hmm (affirmative). It’s time to destroy the horcrux so that we can move on from the sins of our past and finally write a document that is truly Democratic and fully alive. We should be looking at the world with our own eyes, not going back 10 generations to figure out what Alexander Hamilton would have done. We need fresh voices like mine to make laws that are current and relevant. Thank you Judges.
Heidi Schreck: I’m going to confess that I haven’t read Harry Potter, so it doesn’t hit me as hard.
Preet Bharara: Okay, talk to my staff for a second. Can we get JK Rowling? Can we make sure we get the kid? And JK, okay. All right, you give me all these great ideas for the podcast. I really appreciate it. Is there something about this time, the last roughly two and a half years, that has caused this work to resonate, you sort of referred to it, causes work to resonate in a different way than you expected. I mean you wrote this during the prior presidency.
Heidi Schreck: Yes I did.
Preet Bharara: What’s changed in how you think the work is received giving what’s going on in the country?
Heidi Schreck: So I first performed it in 2015 when Obama was President and people really responded to it then as well. I think they responded to the personal stories or at least the feedback they gave me was, “Oh that personal story really got to me,” or “That happened in my family,” or “I share your feelings about that,” or “I had an abortion,” because I talk about my abortion in the show. There is a lot of that actually. The first time, that was when I realized how many people I knew had had abortions and that we never talked about it, even though my crowd of friends is largely made up of feminists, people who we think are very open about these things, all pro choice, never talked about our abortions to one another, which is very interesting to me.
Heidi Schreck: Then when I began performing it during his administration, then I noticed that people were responding with more energy to the things I talk about like birth rate citizenship or the specific clauses of the 14th Amendment, who’s protected, who’s not, what it says about immigration, what it doesn’t. People were responding to the Constitutional issues much more energetically than they did while I was performing under Obama.
Heidi Schreck: You might remember my town is an abortion free zone. [inaudible 00:47:14] you have to drive three hours west to Seattle, five hours east to Spokane to get an abortion. You’re not still timing me, right? Okay, I’m going to keep going. Okay, so I decided to go eight hours south, using my rights from the Privileges and Immunities clause, my right to travel, because there’s a clinic there called the Feminist Women’s Health Collective run by lesbians which is clearly the best possible place on the planet to get an abortion and that is what I wanted. I wanted an abortion. I knew that it was my right. I knew it was legal because I had been able to go to college.
Heidi Schreck: I knew that abortion had been legal in this country for most of its history. I knew that it had only become a crime in the late 19th century around the same time the government started forcibly sterilizing indigenous women and women of color. I knew it became a crime about the same time they decided that white women weren’t having enough babies. I knew that white women in this country, especially rich white women, had always been able to get abortions. I knew that Gloria Steinem had had an abortion and Billie Jean King and Susan Sontag. I knew that Penny from Dirty Dancing had an abortion and I knew that when Jennifer Grey asked her father, Jerry Orbach to save Penny’s life after her back alley abortion that she was asking a lot because it was the 1960s. Jerry Orbach could have been arrested for getting anywhere near an abortion and I knew that this was how we were supposed to understand that Jerry Orbach was a good man and also how we knew that Jennifer Grey and Patrick Swayze’s love was real.
Preet Bharara: You said something else else I thought was interesting, maybe it was about these times. You said, “We’re desperate for a communion and to have conversations where we’re not screaming at each other.” Is that a sign of the times? Because that’s always been true.
Heidi Schreck: I mean it’s always, I mean that’s the other thing, right? About when you go back in American history you realize that the time is not, I mean it’s terrifying. Especially, well on all fronts what’s happening is so devastating. We’re in a moment right now where you and I are talking obviously when what’s happening with I believe entirely unconstitutional, placing of the immigrants into detention centers or whatever you want to call them is just an intense human rights crisis, but I will also say that going back and researching to make the play, I was like, oh when people say this is not America. I’m like, “Oh well, it is and has been America and it’s what America was born out of,” and I do feel desperately it’s our duty to make a better America, but I do think we have to acknowledge that this isn’t new, any of this. I guess I do, maybe because we interact so much on Twitter now where it’s hard to have a real conversation. I do think and feel in the theater that there’s hunger for actual conversation.
Preet Bharara: That’s why we have podcasts.
Heidi Schreck: And podcasts, yeah.
Preet Bharara: We didn’t used to have so many before.
Heidi Schreck: Yeah, yeah.
Preet Bharara: I mean here’s an inappropriate question. Who’s the sexiest Founding Father?
Heidi Schreck: Oh that’s a fantastic question. Who is the sexiest Founding Father? I, hm, okay I would say probably Ben Franklin just because he was so smart.
Preet Bharara: Oh see, you were trying to go get away from Ben.
Heidi Schreck: I mean, I really think he would be great to have a conversation with. I feel like he had all these weird inventions in his house. That would be fun.
Preet Bharara: The electricity.
Heidi Schreck: The electricity. His weird air baths where he walked around naked and that was his version of a shower.
Preet Bharara: So you would say he’s the warm blooded, steamy Founding Father.
Heidi Schreck: I would say he’s the warm blooded, steamy, yeah, but also I was just reading. I don’t know if he counts as a Founding Father, but I’ve been reading Jill Lepore’s amazing book and I was reading about Luther Martin. I find this sexy, who actually just left the Convention. It was like, “If we enshrine slavery into this document I will have no part of this,” and then went and lived the rest of his days in a cave. I find that kind of, especially at this moment, people who could actually stand up for things in a kind of an extreme way I find sexy.
Preet Bharara: As I mentioned before we started the show, by happenstance and because of the calendar and your schedule, it turns out that this episode will be dropping and hopefully millions of people will be listening to it on the Fourth of July and something we’ve talked about on the show and I’ve talked about on social media and people in the country talk about is this idea of what does it mean to be patriotic? What does patriotism mean? What does patriotism mean to you?
Heidi Schreck: Patriotism to me is a willingness to love your question by looking at it clearly by openly criticizing it when it’s not living up to what it ought to be and patriotism is, in this country, being willing to put yourself on the line to make things better in the country. To vote, to protest, to make your voice heard, to run for office, but definitely high high on that list is the willingness to look at things honestly, not look away and to criticize your country when it’s not living up to, when it’s not being humane, when it’s not being just.
Preet Bharara: Like you might with your child.
Heidi Schreck: Exactly, yes.
Preet Bharara: Heidi Schreck, this has been such a treat and a pleasure. An honor to have you on the show. Good luck with your shows.
Heidi Schreck: Thank you.
Preet Bharara: Hope to see you sometime soon.
Heidi Schreck: Thank you so much.
Preet Bharara: Hey folks, as I mentioned, for this special episode on July 4th I was curious to hear what all of you think about patriotism and being patriotic. Is it a good thing? Is it a bad thing? How do you go about honoring your country? And I’m pleased to say we got a lot of responses. We can’t play all of them and we can’t play some of them in their entirety, but here’s a sampling of what the listeners of Stay Tuned think about that question.
Linda: Hi Preet. This is Linda from Minnesota.
Bryce: Bryce Bookman calling from Fort Worth, Texas.
Jennifer: Jennifer in Batesville, Arkansas.
Diane: Diane from Virginia.
John: John, I’m calling from Atlanta, Georgia.
Miss Swanson: [inaudible 00:53:33] Swanson from Jamesville, Florida.
Les: Hey Preet. This is Les in Brooklyn.
Sigon: Hi my name is [Sigon 00:53:38] and I’m calling from Philadelphia.
James: Preet, this is James calling from the Carolinas.
Caller #10: Patriotism means standing for values for the rule of law and inclusiveness, especially when it’s hard and takes courage.
Caller #11: Patriotism for me means raising the American children and learning from them about history and the Constitution of this country.
Brian: Hey Preet, this is Brian Moore calling from Sammamish, Washington. Thought of a perfect topic for a haiku. Our anthem is raised. I place my hand on my heart despite all our flaws.
Caller #13: Patriotism to me means you have the freedom of being yourself and showing people who you are without being judged.
Caller #14: Caring enough about your country to criticize it and then actively working to make it better.
Caller #15: Patriotism means believing that this country can do better.
Caller #16: Patriotism for me is proud, yet inclusive.
Caller #17: Of the people and by the people to make life better for the people.
Caller #18: No matter how [inaudible 00:54:41] and how hard it is, and good God it’s been hard-
Caller #19: Patriotism is-
Caller #20: My country right or wrong. If right, to be kept right. If wrong, to be set right.
Caller #21: Patriotism-
Caller #22: … is supporting your country all the time and your government when it deserves it, Mark Twain.
Caller #23: Patriotism, from the ever succinct Oscar Wilde-
Caller #24: Patriotism is the virtue of the vicious. So always be wary of those who would lie and [inaudible 00:55:04] as a character trait.
Caller #25: Patriotism is not the chest pounding or the flag waving.
Caller #26: Doesn’t mean standing for the National Anthem.
Caller #27: I don’t require flags and songs and parades to be patriotic.
Caller #28: Patriotism is yet another narrow minded outlook or philosophy that leads to the exploitation and division of humanity.
Caller #29: And when that country fails to live up to its ideals, to advocate for those ideals so that we can form-
Caller #30: … a more perfect union.
Caller #31: Love of country, yes, but also commitment to address its imperfections.
Caller #32: But it’s not a blind love. It includes a willingness to change your country when it’s not being its best.
Caller #33: Putting the needs of others above yourself.
Caller #34: Commitment to freedom for all people, which requires listening, cooperating, voting, advocating and adhering to an ethical boundary against selling out to the highest bidder.
Caller #35: Loving your country. Loving your democracy.
Caller #36: Patriotism is engagement and voting and volunteering and speaking up for our rights.
Caller #37: … and speaking truth about-
Caller #38: Loving my country, warts and all.
Caller #39: Akin to the love of a parent for their child. Loving it despite their flaws and accepting responsibility for helping them form their character in the future.
Caller #40: Similar to the unconditional love a parent feels for their child.
Caller #41: Especially for those with little to no voice.
Caller #42: Patriotism to me means that I can be free to protest the actions of my government.
Caller #43: Standing for values like the rule of law and inclusiveness, especially when it’s hard and takes courage.
Caller #44: Equality, fairness, justice.
Caller #45: My idea of patriotism is riding the C train. Looking to my left and to my right and realizing that we are all on the same train.
Caller #46: All those feelings of pride, joy and love.
Caller #47: That’s what patriotism is to me.
Preet Bharara: Hey folks. I have to say how moved I am listening to all of your responses to the question, what does patriotism mean to me? It’s really overwhelming and as I listen to those responses while I’m on holiday with my family in the United Kingdom. I’m actually recording this in my London hotel room, so I apologize of the sound quality is not what you’re used to. So what does patriotism mean to me? Well part of it will be rooting for the American Women’s soccer team over the English Women’s soccer team in a big match highly anticipated tonight. Apologies to my gracious UK hosts, but more seriously, it’s hard to improve upon some of the things that you all said, about the rule of law, the ability to criticize your country and about how you love your country in some ways like you love your own children.
Preet Bharara: I agree with those people who said that patriotism is not about learning a song or worshiping a symbol, though I often still get a lump in my throat during the National Anthem. To me patriotism means loving and internalizing the ideals of America. It means taking the time to learn what those ideals and principals are, what freedom means, what equal justice means. It also means wanting to be true to those ideals. It means wanting to make America better when it falters, wanting to give back to your country. Means loving your country enough that you want to serve it. It means having hope and faith that your country will get better and more just over time. So to me, patriotism really means service to the country and its ideals and its people. As I mentioned, I’m abroad on vacation and I find when I travel out of the States, I can’t fully explain it, but I always miss America when I’m not there and no matter how much fun I’m having on vacation, I always love America just a little bit more when I return.
Preet Bharara: I won’t be in the States this July 4th. I can’t remember the last time I wasn’t in the States for the Fourth of July. So no barbecue for me, but I’ll be thinking about your comments. I’ll be thinking about all the things you said and why we should love the country and so all of you have a healthy, happy and patriotic Independence Day.
Preet Bharara: Well that’s it for this episode of Stay Tuned. Thanks again to my guest, Heidi Schreck. Stay Tuned is presented by Café. The Executive Producer is Tamara Sepper. The Senior Producer is Aaron Dalton and the Café team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman. Our music is by Andrew [Daust 00:59:19]. I’m Preet Bharara, stay tuned.
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