Progressives and Their Imaginary Constitution

By Kyle Smith

Wednesday, May 08, 2019

We’ll stipulate that should the end of the American experiment as defined by its current Constitution be imminent, it will probably not be habitués of Broadway theater who do the overthrowing. Nor are the folks who can afford to pay $197 for an hour and a half’s entertainment likely to form a seething mob. Nevertheless, it is disappointing to hear hundreds of fellow Americans whooping and cheering at the suggestion that the Constitution be abolished and that the cure for our ills is to model ourselves on South Africa.

What the Constitution Means to Me, a play by Heidi Schreck that is mostly a monologue starring the author, a middle-aged television writer from Washington state, has been called “not just the best play to open on Broadway so far this season, but also the most important” (the New York Times), “theater in the old sense, the Greek sense, a place where civic society can come together and do its thinking and fixing” (Time Out New York), an “ingenious play [that] keeps peeling away its layers, to reveal a blood-chilling core truth: The Constitution isn’t here to protect you” (the New York Observer), and “a play of ideas for which people are not just hungry but starved [in which] Schreck relates her own history to the gaping holes in the Constitution where adequate protections for women should be” (the Hollywood Reporter). This week it won the New York Drama Critics Circle Award for Best American Play.

What the Constitution Means to Me does not offer any particularly damning evidence against the Constitution but the reaction of its audience is pretty damning against liberals. Remember when the Left liked the Constitution? The hosannas for What the Constitution Means to Me provide strong evidence that that era is over.

As a teenager, Schreck used to win prize money from the American Legion giving a set speech (now lost) in praise of the Constitution. In later years she narrowed her focus: The only parts she is interested now are the three famously vague bits: the equal-protection clause, the due-process clause and, vaguest of all, the Ninth Amendment, which states that the enumeration of rights in the Constitution is not to be construed as denying the existence of other rights. Schreck’s face lights up when she discusses “Amendment Nine,” as she calls it, because she misunderstands it as a green light for liberals to do anything they want to do. Schreck says the Ninth Amendment is why you have “a right to brush your teeth.” Or to have an imaginary friend. The Ninth Amendment is the Right to Whatever Heidi Schreck Wants Amendment, according to Heidi Schreck.

The error of this way of thinking is fairly obvious: What if I think the Ninth Amendment gives me the right to do things I want to do that Heidi Schreck might not want me to do, such as moving in next door to her and blasting Metallica into her window at 3 a.m.? The Ninth Amendment can’t possibly mean “You have any right you can dream up.” If Wyoming passed a law forbidding the brushing of teeth, it would be time to wield the Antonin Scalia stamp of legend, the one that says “stupid but constitutional.”

Naturally this is all leading to abortion; the Ninth inspired Justice William O. Douglas’s “penumbra” remark about implied rights, and Harry Blackmun picked up that ball and ran with it in Roe. All good to Heidi Schreck, but though she exercised her right to abortion many years ago, the Constitution disappoints her in other ways. There is a long history of violence against women in her family, particularly against her grandmother Betty. The Constitution is flawed because it didn’t stop that. She recites the bogus statistics that one in three women is sexually assaulted and one in four is raped (usually these false claims are made regarding women on college campuses only but Schreck broadens the claims to all American women). When she starts calling for a South Africa–like constitution, she seems unaware that violence against women is vastly higher in that country, which is currently mulling an amendment to make it easier for the government to seize private property.

The thin tie Schreck finds between the many sad stories in her family and the Constitution is the 2005 Supreme Court case Castle Rock v. Gonzales. A horrible crime occurred, and the police bungled their part in it by not enforcing a restraining order against a man who went on to kill his three children. The Court no doubt had a great deal of sympathy for the murdered children but simply ruled that there was no constitutional issue to protect Gonzales’s lawsuit against the police. Bad things happen all the time that aren’t constitutional issues because the Constitution is not The Prevention of Bad Things Compact any more than it is a scheme to protect things Heidi Schreck likes. Schreck notes that a scholar told her (correctly) that the Constitution is primarily about negative rights — things the government can’t do to you. It is thin on positive rights — guaranteeing you things from the government. Luckily, though, if you want positive rights — the right to brush your teeth, even the right to an abortion — you can still get those through the democratic process.

Schreck describes the Constitution the way a Harlequin Romance novelist might describe a night with Fabio: a “living, warm-blooded, steamy document. . . . It is hot and sweaty.” It’s also something “like a witch’s cauldron” made by “a bunch of magicians” in Philadelphia who wanted to cast “a spell.” The language is instructive: The more you shroud and occlude the plain meaning of the document, the more you claim it to be cloaked in voodoo, the better. That way the actual, brief, lucid charter can be shunted aside in favor of a fantasy document, one that has all of those “positive rights” liberals wish were guaranteed forever. These rights need to be established by the Constitution because otherwise liberals might have to win them through the ballot box, and that would mean persuading their fellow Americans. It’s much easier to do what this show does: gather a few hundred progressives each night in a Broadway bubble and get them whooping and cheering about everything they have won for themselves in their imaginary Constitution.