The Best Law and Music Article of All Time

There are several excellent contenders.  Daniel Farber's "Constitutional Cadenzas" ("The question I want to raise is whether the Constitution contains cadenzas -- that is, instructions for the interpreter to improvise upon the Constitution's grand themes.").  The Cardozo Law Review's symposium back in 1999 on "Music and Legal Theory."  Jerome Frank's 1948 "Say it With Music" (a bit radical for my taste, but superb nonetheless) as well as his "Words and Music: Some Remarks on Statutory Interpretation."  And Richard Posner's (who else?) "Bork and Beethoven."

But the best piece of musico-legal synthesis of all time must surely be Jack Balkin and Sandy Levinson's "Law, Music, and Other Performing Arts" back in 1991.  Some back story before getting to the article.  In the late '80s and early '90s, one of the controversies in music theory and interpretation had to do with "authenticity" -- the interpretation of musical scores according to the sensibilities of the period in which they were composed.  So if you were performing Beethoven's third or seventh symphony, the hip thing was to deprecate the sweeping efforts of the great Romantic conductors like Bruno Walter or the fascist period sloppy extravagance of Wilhelm Furtwangler and try instead to replicate the sound which would have been heard by an early 19th century audience, with appropriate period instruments, period tempo and dynamics, and an appropriately -- that is to say, modestly -- sized orchestra.  Perhaps it is not too surprising that a troop of Englishmen including Sir Roger Norrington, Sir John Eliot Gardiner, Sir Neville Marriner and Christopher Hogwood were among the leading exponents of this concern for sensible, restrained periodicity.  Alongside these trends came the movement away from the canonical works and toward obscure -- sometimes willfully obscure -- music long since forgotten, early music, unknown song cycles, unfinished fragments, and the like.  Good bye Das Lied von der Erde; hello undiscovered baroque canti that nobody ever heard of (sometimes for good reason).  And so was born the "Early Music Movement," which might better have been named the "Authentic Music Movement," since it aspired to discredit the traditional, grand style of interpretation. 

An interesting feature of these debates, to me, is that the Early Music Movement took one of its core tenets to be that the music should come first, the interpreter second (or not at all).  This was one of its complaints about the traditional mode -- its pride and its ego.  And yet as the Movement aged and became more profitable,  it, too, became self-indulgent after a fashion, as artists congratulated themselves on "rescuing" obscure music which in many cases had been rightly consigned to oblivion (lookin' at you Cecilia Bartoli).  

At any event, the neat thing about the Balkin & Levinson exercise in bricolage is that it reflects on these developments in classical music in light of the debates then (and still!) raging in constitutional interpretation.  B&L observe that a musical score, like a text, is a series of directions for interpretation, and what one hears in a piece of music is these commands "brought to life" (note the suggestion of living constitutionalism) by the performers following the directions.  Like music, law-in-action requires performers in order to be realized. 

The aspiration to perform music, as one orchestra conductor put it, "in a form which the composer would recognise" is not really what the Early Music Movement was after; as B&L say, it was, instead, to "produce the sonic effects experienced by [the composer's] non-hearing impaired contemporaries."  Yet the result, achieved only with huge effort, often produced an unpleasant sound.  The vibrato was done away with in favor of "a string tone that has variously been described as sour, astringent, or vinegary."  Woodwinds were intentionally made to sound out of tune.  And the tempo was sped up uncomfortably with a corresponding loss of richness and texture.  

The primary criticism of this interpretive mode is that the past is lost to us, and that we cannot recreate it with these technical strategems.  Whatever was heard in the past was heard as part of a larger cultural context which we cannot replicate today.  "Bach composed his masses and his religious cantatas to be performed in church as part of the devotional exercises of committed Lutherans," not for availability at will, to be played over and over, skipping over the boring parts, as one drives alone down the highway.  Whatever Bach's audience heard is not what we hear, and a "living tradition" (emphasis by the authors) as compared with a tradition housed in a museum, demands -- indeed, it assumes -- the conviction and passion of later interpreters.  Otherwise, what is claimed to be authentic is really a precious authenticism.

Another issue pursued by B&L deals with why the idea of authenticity has become so important for interpreters today.  After all, authenticity would not have been important at all to previous eras of composers -- to the very composers whom the Early Music Movement wished to treat with reverential respect.  B&L quote from a musicologist: "If you were an Italian singer in 1888, you did not think of singing Rossini-style for Rossini and Mozart-style for Mozart.  You just sang.  The way you sang . . . would have been in the style of the cultural situation of 1888."  The reason for the rise of authenticism is our own separation from the tradition of classical music, which gives rise to the impetus in some to cling to it, to reclaim it as it was -- when it was truly a living tradition.  And yet the search for authenticity is itself the imposition of an aesthetic -- "the aesthetic of modernism on the music of the past."  The result is that the quest for authenticity ultimately does not give us music as it was originally, but music as we like it now.  "We have adapted Mozart to our age just as the romantics adapted him to theirs, only we have done it under the banner of 'authenticity.'"

One of the great things about -- maybe my favorite feature of -- the article is that it says practically nothing about constitutional interpretation explicitly.  Most of the work is done suggestively and elliptically, and that oblique approach is much more effective than would have been a direct, conk-you-over-the-head argument.  Here's a bit from the conclusion:

Felix Frankfurter described as “the single most important utterance in the literature of constitutional law” John Marshall's admonition that “it is a constitution we are expounding.” Equally important is Marshall's insistence that the Constitution be interpreted so as to “endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”  It has always been feared, though, that too much “adaptation” would mean not the endurance, but rather the death of the Constitution. Yet how is one to tell the difference? Only half in jest do we announce that the subtext of this review is the question whether the performance of constitutional interpretation is better analogized to the Hanover Band's version of the Pastoral Symphony or to a jazz improvisation on Thelonious Monk's Round Midnight.  We do not mean to suggest that the choice must be exclusively between these two alternatives. Many other musical analogies might be suggested as well. We do mean to suggest that asking such questions—and wrestling over the answers—helps to illuminate the enterprise of constitutional analysis, including the particular problems posed by this enterprise for those who must confront the profound impact modernity has had on our political and legal culture. 

Other candidates for the best law and music article of all time are welcome!