What the Constitution Means to Me

“People laughed at Douglas for calling [the 9^th amendment] [a penumbra], but I like it. I think it’s a helpful way to think about the Constitution and maybe even about our lives. Here we are, trapped between what we can see, and what we can’t. We are stuck in a penumbra.”

Heidi calls the 9th amendment “the most magical and mysterious amendment of them all” (17). Justice Antonin Scalia admitted at one point that he finds it inscrutable, and he doesn’t think it was covered in law school. The amendment states that just because a right isn’t explicitly stated in the Constitution, that doesn’t mean that Americans don’t have that right. Therefore, the Constitution should not be used as a way of excluding or taking away rights, leaving room for the future and needs of the country that can’t be imagined yet.

“This is why I love Amendment 9 so much. It acknowledges that who we are now may not be who we will become. It leaves a little room…for the future self?”

At 15, Heidi sees the Constitution through a lens of optimism for how the document could be used for the furthering of equality and the protection of human rights as if real social change is right around the corner. As an adult, she sees that change isn’t happening, or at least that it is moving at a glacial pace while underserved populations fight for their lives.

“I want to emphasize that this amendment guaranteed equal rights only to men. Black women were not given these rights. No women were given these rights. The question of Native American rights never even came up. Even Lincoln was trapped in a penumbra on that one.”

Regardless of the ways that the Constitution has been mobilized, successfully and unsuccessfully, for the sake of civil and human rights, Heidi makes a significant point in recognizing that most of the framers did not intend for rights to be extended to anyone but white men. Although it can be interpreted and bent to grant rights to other groups, Heidi questions why that should be necessary, arguing that a new, positive-rights Constitution would prioritize rights for everyone.

“With the help of Justice William O. Douglas’s beautiful penumbra metaphor, Justice Harry Blackman used the 9^th Amendment to shine a light into the other amendments, and he found there, in the shadows of the Constitution, the right to privacy and he declared that this gave a woman the right to decide what to do with her own body. Well, technically, he argued that a doctor and his patient have a right to privacy, so that he can decide what to do with her body.”

Heidi’s marveling about the creative use of the 9th amendment to protect abortion rights is tempered by the caveat that medical privacy includes the doctor. This means that a woman does not quite have bodily autonomy but a smaller pool of (mostly) men who will have final say in what she does with her body. This tricky bit of logic meant that the Supreme Court would eventually skew conservative and be poised to dismantle this precedent, which was only held in place by the will of a Supreme Court that skewed left.

“So poor William O. Douglas had to dig up this amendment that nobody really uses, nobody understands, because there was no other way to deal with the female body. Because our bodies, our bodies, had been left out of this Constitution from the beginning!”

Heidi is emphasizing the egregiousness of this omission. It wasn’t simply a matter of a different era with different values and medical/technological advancements. It was half of the population and their corporeal, tangible existence that was ignored by the framers. Any protection of bodies that aren’t white or male was deemed insignificant to the men who wrote the document, which means that bigotry and white supremacy are baked into the document.

“Remember it’s 1965. There will not be a woman on this court until Sandra Day O’Connor arrives in 1981. So, here are nine men deciding the fate of birth control. Three of whom may have been cheating on their wives.”

In the recordings that follow, the men on the Supreme Court seem to be exceedingly uncomfortable with the topic of birth control and women’s bodies. They are not only deciding what will and won’t be legal for women to do with their own bodies, but also they are doing it without any input from women who will have to live with their decisions. Their potential infidelities suggest that they don’t have real respect for women, and it seems fortunate for American women in 1965 that a man who is cheating on his wife would have a vested interest in making birth control accessible.

“Whenever I think about the things the women in my family wanted to be, I get this weird pain in my back, and my throat squeezes up, like I can’t get my voice out, and I guess I have this intense feeling of survivor’s guilt.”

When Heidi discovers that she is pregnant, she is able to get an abortion and avoid derailing her life plan. She wants to tell her mother and grandmother, since many of the women in her family were trapped in bad situations with a lot of children because they didn’t have the same opportunities. Heidi has been able to chase her dreams and do what she wanted, which her mother and grandmother certainly wanted for her. Still, Heidi feels the injustice of their prescriptive lives and their unlived dreams, so she struggles to mention it without feeling guilty.

“Scalia ultimately decided that ‘shall’ did not mean ‘must.’ Which is confusing because Scalia was a devout Catholic.”

In the case of Jessica Lenahan, the police denied her help and protection, even refusing to enforce the restraining order she had been legally granted. As a direct result, her three daughters were murdered. Defining the word “shall” to preclude any obligation on the part of the police means that although the police were her only legal option for what could have been the safe return of her children, she was not entitled to their help as they were not required to fulfill the purpose of their job. Heidi points out the irony of Scalia being Catholic, as was shown in his hyper-conservative stances, since “shall” is a basic building block of the 10 commandments.

“What does it mean if this document offers no protection against the violence of men? Sorry, I don’t mean to—I have no desire to vilify men. I love men. I do. I fucking love you. I’m the daughter of a father! But the facts are extreme. Since the year 2000, more American women have been killed by their male partners than Americans have died in the war on terror – including 9/11. That is not the number of women who have been killed by men in this country; that is only the number of women who have been killed by the men who supposedly love them.”

Heidi is insistent as she repeats that she loves men and has specific men in her life who are extremely important to her. It’s an effort to preempt any potential accusation that she is simply biased against men. But the irony of the statement is that when she cites domestic abuse and murder committed by men against women, she notes that this statistic is only based on men who kill the women who they claim to love. This, along with the accounts of domestic abuse that occurred in Heidi’s family, suggests that whether a man becomes dangerous is a matter of luck, because those relationships all look like love at the beginning.

“There were thousands of women in Washington, of course: the women of the Wenatchi tribes, the Salish tribes. And apparently, some of these women had been marrying white men for a long time, and according to these women’s journals, some of these marriages were actually good! Because these tribes were egalitarian. Women could be priests, translators, boat makers. Then Washington became a State and was under the umbrella of the Constitution (that I worshipped), which meant indigenous women were no longer considered people, the marriages became illegal, and they brought in a bunch of white women like my great-great-grandma Theresa.”

Within Western colonial culture, white colonizers frequently frame themselves as civilized, bringing their superior culture to barbaric natives. This instance proves the opposite. Women became less human in the eyes of the law and had fewer rights. Other women were trafficked and brought to Washington against their will because although there was no actual shortage of women, there was a shortage of white women to become subservient wives and mothers.

“When I think about how brave my mom and my aunt were as teenage girls, well, it gives me such respect for them, but it also makes me think about the fact that progress doesn’t only move one way. I’ve learned so much from younger people. You all seem braver than I remember being when I was your age, more compassionate. You certainly have a more sophisticated understanding of gender. Sometimes, I feel like you’re shining a light backwards into the darkness so I can follow you into the future.”

Heidi has rights and opportunities that her mother and grandmother didn’t have. She has committed her own acts of bravery, from seeking out an abortion to creating this play. Her aunt and mother had to testify and save their mother from abuse, which bothers Heidi, who believes that her grandmother should have protected their daughters. As Heidi explains, each generation seems braver than the last. They build that bravery on each new iteration of womanhood and established rights. In the second part of the show, Heidi brings in a young debater, demonstrating how when allowed to have a platform, young women can in fact light the way for her to follow.

“I learned something from a younger person recently, a younger feminist, that helps me understand my grandma a little bit better. They taught me about this concept called ‘covert resistance.’ Covert resistance is the idea that seemingly passive, victim-like behaviors, people-pleasing behaviors, may actually be the sanest response to living in a violent culture. A culture, and a country, that is making it clear every single day that it has no interest in protecting you.”

Heidi has struggled to understand how her grandmother, who she knows as a strong, solid, stocky woman, could have let her husband abuse her and her daughters instead of simply running away. As she grew up, Heidi has come to understand leaving isn’t always feasible. It’s extremely dangerous, and a woman is most likely to be murdered at the time she tries to leave. Since the Constitution and the society it represents don’t care about the safety of women, there is very little safety net to help a woman escape her abuser. Small Actions of Covert Resistance that help to keep her and her children alive––many of which appear, on the surface, to be the opposite of fighting––take great strength and bravery. After her grandmother’s death, Heidi’s family discovered that she had stashed money for her children and made sure that they succeeded in school so they would have options for getting out of the house.

“I grabbed George the Second’s Friend and collapsed onto the airport floor and kept wailing and wailing and wailing. And I have no idea what I was crying about. I don’t know if I was crying for my Grandma Betty, or because of chemical depression, or because he’s such a cute little monkey, or because of centuries and centuries of fucking inherited trauma, or maybe, maybe, IT’S JUST THE APPROPRIATE RESPONSE TO EVERYTHING RIGHT NOW.”

When Heidi brings her sock monkey on the flight, she hides him. As an adult woman, she feels as if societal norms require her to conceal her vulnerability and need for something that comforts her. After she leaves the toy on the plane, she becomes distraught, weeping, and lies to invoke the one situation that would rationally explain her breakdown as a woman in the middle of the airport, claiming that she has a very sick child who needs their favorite monkey. This launches the female TSA agent into action too, as she instantly understands and wants to be a hero for a small sick child in a way that she wouldn’t care about being a hero for Heidi. Heidi’s relieved wailing after the monkey is returned doesn’t fully make sense, even to herself. In a world where she, as a woman, isn’t safe, perhaps clinging to a sock monkey for comfort feels desperate and inadequate, but she also isn’t allowed to indulge in her own emotions.

“Maybe we shouldn’t think of the Constitution as a crucible, in which we’re all fighting it out together, in which we go in front of a court of nine people to negotiate for our basic human rights, which is what we have been doing for two hundred and thirty years. Because if this is a battle, or even a negotiation, then they people who have always been in power, always dominated, always oppressed—men, white people—will continue to dominate and oppress.”

Heidi’s image of the Constitution as a crucible makes it seem like a locus for society to melt together into something egalitarian, as if everyone is fighting together for what is best for everyone. In reality, it’s a place where the disenfranchised have to repeatedly return to make their case for their own humanity before nine fallible human beings who have the privilege to accept or deny. It was founded on an imbalance of power and remains as such.

“To me, the 9th Amendment is like Boxellia. She holds the memory of our future. Too bad for us, we won’t know what that is until we get there.”

Much like Heidi did while playing herself at age 15, Rosdely sees the Constitution through a lens of optimistic possibility. The 9th amendment is inscrutable not because it was written unclearly but because it is too sophisticated for most to understand. Its ambiguity leaves it open to interpretation, which makes it possible to use it in a multitude of ways. Still, the framers of the constitution weren’t sorcerers who placed all their knowledge of the past and the future into a document. They didn’t have foreknowledge of how the amendment would be received and used. If they had, perhaps they would have changed it, since they were comfortable leaving certain people out of the Constitution in the first place.

“I’ll remind the audience to please participate with passion. You are not just spectators here. You can really influence the outcome of this thing.”

In the first section of the play, the Legionnaire tells the audience to restrain their emotions and responses, as this might influence the judges and destroy their ability to be impartial. Mike gives the opposite directions for Heidi’s debate with Rosdely, making this competition more democratic, while showing the Legion Hall contests to be more like the execution of the Constitution itself, in which a panel of judges have power over the entire process and outcome.

“The dead should not govern the living.”

The founding fathers who wrote the Constitution are often revered as geniuses who created the country’s central defining document to be timeless and ever relevant. Ultimately, they were products of their own time, the results of which became a document that shaped the entire country by omitting women and BIPOC as humans with rights and protection. If the men themselves were brought back to life, they would be enormously confused and unfit to lead in a world that is completely different from their own. Therefore, Heidi asserts that their words shouldn’t be in charge anymore either.

“Judges, a zombie is someone who has no connection to their past. They think about one thing: eating brains. If we throw away our own history, we are the ones who will become the Walking Dead.”

In her response to Heidi’s argument about being governed by the dead—or zombies—Rosdely makes the point that the dead have a place in social and cultural history, since the past must be built upon. However, despite this clever turn of the argument, Rosdely doesn’t make an argument that suggests that the dead men from history should continue to lead through the words they left behind. She only argues that the dead shouldn’t be forgotten.

“When should we do it then? Don’t you think this (Holds up Constitution) is what holds us together as Americans?”

Certainly, Rosdely has a point that the sudden removal of the Constitution would cause chaos, possibly removing the framework of the country and allow it to collapse on itself. The purpose of the Constitution was to unite the country under a shared charter, which it has undoubtedly achieved. In this instance, fear of the unknown, or perhaps fear of the worst-case scenario, are standing in the way of positive change.

“Judges, this document is the only thing protecting most of us right now. Abraham Lincoln said the people should not throw out the Constitution, but to throw out the men who abuse it.”

Rosdely’s concerns about the effects of abolishing the Constitution are reasonable, since many hard-won victories throughout history are enshrined in the amendments. Still, it becomes harder to identify the men who abuse it, since it was written for the sake of white, property-owning men. Throwing out these men is at least as impossible as abolishing the Constitution altogether, which raises the question as to what should actually, practically, be done.

“When I visited the court for the first time this summer, this top-notch lawyer walked into the courtroom wearing red-soled shoes. She automatically took control of the room. It’s as if she was saying, ‘You all better listen to me because I know what I’m talking about.’ She was confident about every word that came out of her mouth. To be honest, she made the rest of the lawyers look like amateurs. And as I watched her, I thought, ‘I want those shoes.’ I am just gonna go ahead and say those shoes are my 9^th Amendment. They’re gonna take me into the future. But of course, I won’t know what that looks like till I get there.”

Thursday’s metaphor for the 9th Amendment is far less mystical or magical than Rosdely’s all-knowing AI robot, but it takes a much more realistic view of a document that was written by human beings. She sees a pair of shoes that she wants. Currently, they are being driven by a highly capable woman, but the shoes aren’t making her capable. Without her feet, the shoes are empty and they don’t go anywhere, but on the lawyer’s feet, they are used for high-level work. Thursday wants to wear those shoes, even if there is no guarantee that she will wear them as well as the lawyer.

“Everyone, please raise your hand. Raise your hand, raise your hand. Now, if you’re a white man who owns property, pleased put your hand down. Under the original terms of the Constitution, those of us with our hands up are not considered citizens. Let me ask you a question: How would you feel if these white men went into another room and made all the rules for the rest of us?”

Since the founding of the country, white men have monopolized their power over everyone else. Very slowly, women and BIPOC have pushed their way into political offices, but these decisions are still made by primarily white men. The Constitution is a document by and for white men, and after two centuries, perhaps it has been demonstrated that even with the possibility for amendments, it can’t be repaired.

“My opponent argued that we are more equal and democratic than we were two hundred thirty years ago. That dog on the beach metaphor is simply an illusion. Look at the 13^th Amendment, for example: It abolished slavery only for it to be reimagined as a prison industry that is a new systemic form of oppression. A felon is not equal to me. Even after serving their time, even after being ‘rehabilitated,’ a felon cannot vote. A felon cannot serve on a jury.”

As Thursday points out, the progress narrative of history is manufactured to make social change seem like an eventual inevitability, which keeps people from taking drastic action to force change. Systems evolve and oppression becomes more covert, but that doesn’t mean that oppression is decreasing or that the human race is hurtling toward enlightenment for those who can wait long enough to see it happen.