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Sunday, April 29, 2012

Constitutional Appoggiaturas

The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer -- as a moment for loose impromptu brilliance.  And in his exceptional piece, "Constitutional Cadenzas," Dan Farber argued that there are sections of the Constitution which contain cadenzas -- "instructions for the interpreter to improvise on the Constitution's grand themes."  Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment's Privileges or Immunities Clause as such sections.  "[B]oth of these constitutional provisions," he wrote, "call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration."  Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation -- specifically, "transnational legal sources" and "contemporary social consensus" -- the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius.  The performer of the cadenza may know something about previous performers -- he may perhaps take notice of past interpretations -- but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.

I have a different musical metaphor in mind -- the appoggiatura.  The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody.  In Italian, 'un appoggio' is a support or something to lean on in a moment of weakness or indecision.  Like the cadenza, the appoggiatura is an embellishment -- it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example.  But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will.  The appoggiatura cannot stray very far at all from the melody -- it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after.  It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.

What might be a constitutional appoggiatura?  There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation.  Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution.  Each has an interpretive role to play.  Madison put it this way in Federalist 49:

The several departments being perfectly coordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers . . . .

As a concept in constitutional interpretation, departmentalism has much to commend it, but it seems to me to depend heavily on the coordinate branches knowing a great deal about the Constitution and about the interpretations of other branches.  In this day and age, that means deep knowledge of Supreme Court doctrine.  A successful departmentalist will give due regard to the interpretations of coordinate branches; he will not be bound by those interpretations and he will be at liberty to deviate from them if he wishes.  If he does wish to deviate, however, he will do so modestly and gradually, using existing coordinate interpretations as support structures for his new interpretation.  This will give the appearance of a unified front, all the while indicating some alteration to the close listener.

An example.  Here is a somewhat dispiriting exchange between Congressman Trey Gowdy and Secretary of Health and Human Services Kathleen Sebelius about the constitutionality of what is known about town as “the HHS Mandate,” a set of regulations which would, as presently constituted, require many employers who provide health insurance to their employees to include contraceptive and abortifacient products as part of their plans.  The mandate has elicited objections from religious employers who claim that it will violate their constitutional free exercise rights, among others.

The unfortunate thing about the exchange in the hearing is that it is obvious that neither Congressman Gowdy, who is a lawyer, nor Secretary Sebelius, who is not, has a clear idea about what the current law of free exercise is.  Congressman Gowdy talks about balancing tests in constitutional law, and though it is true that constitutional law is rife with balancing tests, none of these tests applies to the Free Exercise Clause.  He also raises Wisconsin v. Yoder (which does not represent the current test), Wooley v. Maynard (which is a compelled speech case), and Church of the Lukumi Babalu Aye v. City of Hialeah (which is not about balancing, but about laws of general applicability).  Secretary Sebelius admits frankly that she is not a lawyer, and relied on oral communications about the mandate’s constitutionality.  Nobody has any idea what the law is, even in a hearing ostensibly devoted, at least in part, to constitutional law.

But I think the exchange is only somewhat, rather than entirely, dispiriting, because it seems to me to be at least something of an effort (albeit a feeble one) to exercise what is an utterly atrophied departmentalist muscle. 

In light of this state of profound disuse, in order for departmentalism to be at all plausible, the idea of a constitutional appoggiatura might be helpful.  Any departmentalist move, in order to gain any sort of traction, should use existing Supreme Court interpretations as supports – as melodies which must be known by heart and upon which one relies heavily.  Limited departmentalist departures will be possible from these melodies, but they will need to be minor grace notes up or down.  With time they may become slightly longer in duration, so much so that they may sound quite different from the original melody.  But the melody will always be discernible, and the themes of the original will be repeated over and again, though the continuing exercise of a gradualist departmentalism will change the sound, by stages, over time.

"Paganini non ripete," the old master used to say.  But through dependence and repetition, the constitutional appoggiatura may work imperceptible change.

Posted by Marc DeGirolami on April 29, 2012 at 09:24 PM in Constitutional thoughts | Permalink

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Comments

A lovely post, Marc. Thanks.

Posted by: Dan Markel | Apr 30, 2012 9:28:07 PM

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