#heidi schreck
HEIDI: In 2005, the due process clause of the 14th Amendment was invoked in a case called Castle Rock v. Gonzales. Jessica Gonzales obtained a permanent restraining order against her violent husband. A month later, he kidnapped their three daughters. Jessica, terrified, called the police seven times and went to the station twice in person to beg them to look for her daughters. The police not only refused to help Jessica, they told her to stop bothering them.
By morning, Mr. Gonzales had legally purchased a semi-automatic weapon while their daughters waited in the car, and then killed them.
Jessica Gonzales — who now goes by her original name Lenahan — Jesicca Lenahan very bravely sued the Castle Rock Police Department for failing to show up to protect her and her kids. The state of Colorado had recently passed a law that required police to arrest a person for violating a restraining order. So Jessica sued, she won, and then the city appealed and took the case all the way to the Supreme Court. And this court, led by Antonin Scalia overturned her case, killed the Colorado law, and gutted the Violence Against Women Act by ruling that the police had no constitutional obligation to protect Jessica or her daughters.
I’ve listened to this case so many times and the thing I noticed is that the justices spend very little time talking about Jessica as a human being. They don’t talk about her daughters. Rebecca, who was eight, Katheryn, who was ten, and Leslie, who was seven. Instead, they spend a long time arguing about the word “shall.” As in the phrase “the police shall enforce a restraining order.” And look, I understand even as a layperson that precise language is important in law, but I find the balance of these two things…
At one point, Justices Scalia and Breyer got into a little discussion about whether either of them understood what the word shall meant.
(She looks up to the booth.) Terri, will you…?
Terri plays a clip of the justices debating the definition of the word “shall”:
JUSTICE ANTONIN SCALIA (VO): Wait 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— whether, if it does mean shall it creates a property interest for purposes of the Federal uh, Constitution?
JOHN C. EASTMAN (VO): No, Justice Scalia, I don’t—
JUSTICE STEPHEN BREYER (VO): Suppose shall does mean shall. Fine. But you might have a statute that says the fire department shall respond to fires. And the police department shall respond to crimes. The Army shall respond to… uh uh uh attacks. Even the words shall doesn’t necessarily mean…
HEIDI: Scalia ultimately decided that “shall” did not mean “must.” Which is confusing because Scalia was a devout Catholic. Feminist legal scholars have called this decision the death of the 14th Amendment for women and children. This ruling is most devastating for women of color, transwomen, binary and non-binary folx, women with disabilities, immigrants — people who are less likely to be helped by police than I am. It’s especially devastating to indigenous women, who suffer the most violence in our country.
(She thinks for a moment. She is grappling with a problem in real time, trying to find a way to connect feeling to thought.)
HEIDI: I really wanted to know why they decided this - maybe because of my family history of this kind of violence, I needed to understand it. So I talked to a few constitutional scholars and this is what I learned.
I learned about two kinds of rights: negative rights and positive rights. Negative rights protect us from the government taking our stuff, locking us up, killing us. Positive rights are active rights. They include things like the right to a fair trial, the right to counsel, in some countries to the right to health care. Our Constitution, with some exceptions, is a negative-rights document, and Scalia, an originalist, was adamantly a negative-rights kind of guy, which is in part why he decided that Jessica Gonzales was not entitled to any active protection from the police. I also learned that if the Equal Rights Amendment had been ratified, she might have been protected under that. And I understood for the first time why my mom cried when it didn’t pass.
So, what I’m trying to understand now is…
(Heidi searches for a way to articulate something.)
HEIDI: What does it mean if this document offers no protections again violence of men? Sorry, I don’t mean to— I really 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. Here’s one statistic, just one: Since the year 2000, more American women have been killed by their male partners than Americans have died in in the war on terror — including 9/11. That is not the number of women who have been killed in this country; that is only the number of women who have been killed by the men who supposedly love them.
That’s such a staggering figure that I just kind of have to…forget it to get through the day. Except, I think you can’t forget it about. Even if you don’t know the statistics, I think you can feel the truth of that underneath everything… humming. (Unsure)Right?
fromWhat the Constitution Means to Me by Heidi Schreck
