The Murky Concept of Penumbra

This is America in Pursuit, a limited run series from NPR and through line. I'm Randab ata . Each week, we bring you stories about life, liberty, and the pursuit of happiness in the U . S. that began two hundred and fifty years ago . Today, I want to tell you about a woman named Heidi, Heidi Shrek . I am an actor, writer, performer, creator. When Heidi was a teenag er in the nineteen eighties , she did something not a lot of kids were doing. When I was fifteen years old , I would travel the country giving speeches about the United States Constitution for prize money . Heidi loved the Constitution. She believed it was the greatest political document ever written , and she was damn good at talking about it. Back then, she wore a blue power suit, had very large permed hair, a lot of makeup . I would travel to big cities like Denver , Fresno I would win a whole bunch of money, bring it back to put my little safety to pa bousex the for later. I was actually able to pay for my entire college education this way. Thank you. Thank you so much. It was it was thirty years ago and it was a state school, but thank you . That's Heidi on a Broadway stage some years ago performing her hit play What the Constitution Means To Me. It's a show Heidi wrote about her experience participating in those debate clubs when she was a teenager . For most of the play, Heidi is on stage by herself. She goes back and forth between the current Heidi, a woman in her late forties , and the fifteen year old version of herself. The set is a recreation of the American Legion Hall, where one of those debates took place decades ago . She stands alone on stage . Behind her is a wall covered with the faces of hundreds of men, framed photographs of competition judges and war veterans. Our Constitution can be thought of as a boiling pot in which we are thrown together in sizzling and steamy conflict to find out what it is we truly believe. That is why it's such a radical document . And it's from this so called radical document, from those years spent deliberating over the Constitution that things started to click and to change in Heidi's worldview. I would say the biggest thing that happened was that I learned some things about my family history , but I didn't quite connect it to the Constitution at the time . I didn't know how to make those connections . Heidi learned about this legacy of abuse in her family during those years , but it took nearly two decades for her to really start to understand how it all fit together . And in that understanding, all of her ideas about the Constitution were challenged. I don't even know where to begin except to say that the Constitution has profoundly shaped my life . I feel like it's a document that has protected me and completely failed me and so many other people in this country . And so she turned that profound engagement with the document into a play to share with thousands of people , whose dialogue explores what exactly the founding fathers created and meant to create back in seventeen eighty seven . A group of magicians got together on a sweltering summer day in Philadelphia and they wanted to kill each other, but instead , they sat down together and they performed a collective act of ethical visualization , or as I like to call it a spell . Today on the show, we're talking about the Constitution of the United States with Heidi Shrek , someone who's spent a lot of time sorting through the promises of the Constitution , how it works, and how it's impacted subsequent generations of Americans . That's coming up a quick break When Heidi Shrek started writing what the Constitution means to me, she thought she was writing a lighthearted comic play . Maybe even something fun. You know , those one of great movies about like girl debaters that's sort of uplifting and really fun and funny . That was the original idea. Take the prompt of the actual contest she used to do as a teenag er, which was to draw a personal connection between her own life and the Constitution , but do that with the wisdom and hindsight that only adult Heidi could bring to the table . Because when she was fifteen, drawing those personal connections sounded like I protested my school's ban on girls wearing shorts and that's me expressing my First Amendment right . And then she decided to take it more serious ly. That immediately took me to birth control . That took me to Roe V Wade, that took me to the fourteenth Amendment and the Ninth Amendment. And then it took me to me to domestic violence . So when I was like, these are all things that have affected my life, why don't I dig into what the Constitution has to say about them, what the Supreme Court has had to say about them . I would say making the play kind of forced a reckoning . Maybe because of my own family history of this kind of violence, I needed to make sense of it. So I talked to several constitutional scholars . Heidi learned a few things , and part of that learning process was unlearning . She grew up thinking and defending the idea that the Constitution was meant to protect us, the citizens. But then she learned, that's not exactly true. It's actually not designed to protect us, right? It's designed to first outline how government will function . The co equal branches of gover thenment, the separation of powers, it's designed to put a system in place . And then it's designed to protect us from encroachment by the government, right? From allowing tyranny to take over. So it like the duecess Proa Cusel which says the government cannot lock you up, take your stuff or kill you without a good reason . fifteen year old Heidi loves this clause . It states , Nor shall any state deprive any person of life, liberty, or property without due process of law . This brings us to another thing Heidi learned from the Constitutional scholars . She learned about two kinds of rights negative rights and positive rights. The Due Process Clause falls into the category of negative rights , rights that protect us from something , like the government , while positive rights are active rights, rights that the government or other people have to actually provide . They include things like the right to a fair trial , to an attorney in some countries the right to health care . Our Constitution , for the most part, is full of negative rights . And one of the things that I discovered when I was researching the play was I just read a lot of other countries' constitutions, and I was interested in what modern constitutions look like because ours is the oldest active constitution . That's because many other countries over time have scrapped their original documents and repl ace them with more modern constitutions. South Africa and Germany have both done this . And seeing the constitutions created in the twentieth century and constitutions that were created in the wake of genocide, in the wake of great governmental crimes , those constitutions contain positive rights, right? Contain active protections for people who say like they say like we will guarantee that you are a protected class of citizen and whether so that you will not be discriminated against on the basis of race, sex, gender ability . They say we will guarantee a clean planet . Now whet,her these are effective or not is up for debate, but they have active positive rights, things that the government is supposed to do, right, to protect you and take care of you as a citizen. Heidi first saw how a const itution made up of mostly negative rights, those liberties outlined in the Bill of Rights in our Constitution , specifically failed to protect the abused women and her family, and thousands of others through the Supreme Court case, Castle Rock versus Gonzalez , which is about whether the police are required to enforce restraining orders . This is case number z fourero se two venty eight town of Castle Rock versus Gonzales . This is the late Supreme Court justice Antonin Scalia delivering the majority opinion on june twenty seventh, two thousand five . Despite the nature of the case , Scalia kicked things off with a joke. I thought the Castle Rock was a nineteen twenties dance, but it's also a town in Colorado. Then he cut to the chase. The facts are truly horrible. Jessica Gonzalez, the respondent, sued the town of Castle Rock in Federal District Court , alleging that the town had violated her rights under the fourteenth Amendment's due process clause . When it's police , Jessica Gonzalez had three daughters with her husband and a restraining order against them . She filed for one in nineteen ninety nine after a long history of violence and abuse. A month into that restraining order, her husband kidnapped their three children . Gonzales called the Castle Rock Police Department for help. It was around seven thirty PM. When officers came to her house , she showed them the restraining order and asked them to enforce it and return her children . They told her to call back if the children did not return by ten PM . She called an hour later saying, she had heard from her husband and knew where they were. Again, they told her to call if the children were not returned by ten PM . She called again and again until nearly one AM when she got back in her car and went to the station to file a report . An officer took the report and then went to dinner. Finally , at three twenty AM , her husband showed up at the police station shooting a semi automatic handgun . The police shot him dead and discovered in his pickup truck the bodies of all three children whom he had already murdered . Jessica Gonzalez, who's actually now Jessica Lenahan, her maiden name , sued the town of Castlerock for violating her rights under the Due Process clause of the fourteenth Amendment by refusing to enforce her restraining order and therefore failing to protect her family. Remember, the Due Process clause is a prime example of negative rights , which is in part how they came to decide that Jessica Lanahan was not entitled to any active or positive protection from the police . She lost. I listened to this case so many times and the thing I notice when I hear the justices speak . The thing I noticed is that they spend very little time talking about Jessica Lanahan as a human being . They don't talk about her daughters . Instead , they spend a very long time arguing about the word shall , as in the phrase the police shall enforce a restraining order. Scalia ultimately decided that shall did not mean must, which I actually find very confusing because Scalia was a devout Catholic . Some constitutional scholars have called this decision the death of the Fourteenth Amendment for women. It basically shuts down the possibility to look to our federal government to our Constitution for protection from physical and sexual violence. Castle Rock vs. Gonzales was a constitutional test that helped adult Heidi understand her own family history in relation to the Constitution in a way she never could have as a teenager , back when she viewed the document essentially as scripture . This ruling brought into clear focus this tug and pull between positive and negative rights . And it shined a bright light on those shadowy rights that lie somewhere in between. A panumbra you're so fast clean and I get some library skillet. Here I am standing in the light . And there you are sitting in the darkness . And this space between us, this space right here of partial illumination , this shadowy space right here This is a penumber . The word itself means the space between the full light and the darkness, right? Or it's actually between the full light and a kind of shadow. So it's this kind of half light, half dark, very shadowy, murky place . Penumbra , a kind of metaphor for the juxtaposition of what's explicit and implicit in the Constitution Heidi discovered and then became obsessed with the word penumbra when learning about another Supreme Court case . Griswold vs Connecticut, which is the case that made birth control legal for all people in this country in nineteen sixty five pretty late . In nineteen sixty one, Estelle Griswold and Dr. Charles Lee Buxton were arrested for giving information about contraception and writing prescriptions for IUDs to women at a Planned Parenthood in Connecticut . They took their case to the Supreme Court . This is the case where Heidi's favorite parts of the Constitution join hands and take center stage the due process clause of the fourteenth Amendment and the most magical and mysterious amendment of them all Amendment nine Amendment nine says the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people . Basically that talks about unanumerated rights. It says just because a right isn't listed in the Constitution , it doesn't mean you don't have that right. The fact is there was no way for the framers to put down every single right we have. I mean the right to brush your teeth. Yes, you've got it, but how long do we want this document to be? Think about it for a moment. Our Constitution doesn't tell you all the rights that you have because it doesn't know . And I love that amendment because it does speak to the like living, breathing nature of document. And also it's just a very weird, mysterious thing. Like everything else is rather concrete and it's very confusing this amendment . Justice William O. Douglass, the great Supreme Court justice, when he talked about Amendment nine , he used the word penumbra in Griswold vs. Connecticut . I read about how that case was partially decided with the help of the Ninth Amendment as was Roe V Wade with this idea that like, okay, we don't know given the tools we have with this constitution, we don't know how to say exactly that like a person is entitled to use birth control or a person is entitled to have an abortion. So we're going to locate it in this right to privacy, which is not enumerated in the Constitution exactly, but we're going to say it's like it's there. It lives there in the shadow of the Constitution as a result of other rights that were enumerated, right? So it was like this very murky reasoning . And this , this is when William O. Douglass brought out his beautiful penumbra metaphor. This is when he said, One thing our Constitution surely guarantees is the right to privacy and that this allows a woman to put in an IUD as long as she's married. Anyway, at this point in the play, Heidi pulls up a clip from the Griswold case of the nine justices , all men , attempting to discuss birth control . It's probably only true with respect to some, but some debt by under the term feminine hygiene , and others I just don't know about , but they are , they are sold in Connecticut drug stores on one theory or another . Is there anything in the record to indicate the rate from adequate reasonably the states that don't have such laws . I really found it fascinating that first of all that the justices who at the time were nine men had to look to this amendment that nobody really understands and decide that they found the right to birth control or the right for a pregnant person to have autonomy over their own body that they found that in the shadows of the Constitution, I guess, in this like murky, murky space . A murky space that leaves so much room for interpretation , which many argue is the very genius of our Constitution. The intentional vagaries allow for flexibility . But this very nature of the document may at times protect its citizens , but at other times it fails them, leaving some of our basic rights hanging in the balance. People laughed at Douglas for calling it this, but I like it. I think it's a helpful way to think about the Constitution, but also maybe about our lives. I mean, here we are stuck between what we can see and what we can't. We are trapped in a penumbra . As a teenager, Heidi really believed in the Constitution . But after a decade of writing and performing this play , something flipped. Heidi could no longer ignore all the imperfect ions . Maybe it's not helpful to think of the Constitution as a crucible in which we're all battling it out together in which in which we go in front of a court of nine people to negotiate for our basic human rights . Maybe maybe we could think of the Constitution as a constitution that is obligated to actively look out for all of us That's it for this week's show. If you want to hear the full length episode with Heidi, check out The Shadow of the Constitution and join us next week when we look at the story of America through music . You can look at any point in American history and understand what was happening through the sounds that were developing at that time . That's next week. Don't miss it . This episode was produced by Keanna Moffadum, and edited by Christina Kim and Julia Red path with help from the through line production team, music by Romte Atablui and his band Drop Electric . Special thanks to Julie Kane, Irene Nagucci, Beth Donovan, Casey Minor, and Lindsey McKen na. I'm Randab de Fata . Thanks for listening