Is Harry Connick Jr. An Originalist?–Interpreting Musical And Legal Texts

Lawyers and judges are interpreters of legal texts: constitutions, statutes, regulations, judicial opinions and so on.  Singers are interpreters of musical texts: notes of varying duration written on different lines and spaces of a treble or bass clef, and lyrics of course.

Do the “rules”–I use that term very loosely–that govern the interpretation of legal texts apply to musical texts and vice versa?  How are the acts or processes of interpreting legal and musical texts similar?  How are they different?  Does one “perform” a legal text the same way a musician performs a musical text?

These and other questions came to mind when a Facebook friend shared an interesting article about Harry Connick Jr.’s recent appearance as a guest mentor on American Idol.  In particular, I found myself wondering whether Harry is an originalist, as we lawyers understand that term.  (For the record, I am not an Idol fan, for many of the reasons set forth in the article.  In particular, I think the show emphasizes over-the-top vocal performances at the expense of vocal intimacy, subtlety and nuance.  The concept that less can be more has no place on Idol. But that is another post for a different blog.)

At the risk of great oversimplification, originalism posits that the federal constitution should be interpreted in accord with the original intent or understanding of the relevant text at the time it was adopted.  So, if you want to interpret the Commerce Clause, the objective is to ascertain the understanding of the clause when it was adopted in 1789.

For originalists, then, the meaning of a text is static.  By contrast, so-called “living constitutionalism” posits that the meaning of the constitution is dynamic and changes as society evolves.

What does any of this have to do with Harry Connick Jr. and American Idol?  Well, the theme of Idol during the week Connick guest mentored was “Then and Now.”  Each contestant had to perform a current pop tune and a song from the Great American Songbook.  The author of the article writes:

During the mentoring sessions, Connick would listen to the singers perform the songs they had chosen and advise them how to do it better. He was a kindly coach throughout the “Now” portion of the show, teasing, praising and hugging the contestants. But when it came to the “Then” segment, the joking stopped. His demeanor changed.

Songs of the past are an essential part of Connick’s repertoire. He loves, respects and understands their exquisite craftsmanship. He knows how to make them sound “now” without losing what they were “then.”

As Amber (a contestant) started to sing Rodgers & Hart’s “My Funny Valentine,” Connick stopped her. He asked her what the song is about. “What does it mean, ‘Your looks are laughable?'” he asked her, or “‘Is your figure less than Greek?'” Amber looked blank — she had no idea. She struggled for words. He told her to go do some research on the lyricist, Lorenz Hart, a physically diminutive, closeted homosexual who died of alcoholism at age 48. Before singing the song, Connick sternly told Amber, you need to understand what Hart was writing about.

Kree (another contestant) also got stopped shortly after she launched into Harold Arlen’s “Stormy Weather.” She was singing in a loose, bluesy manner, like she said she’d heard Etta James do the song. But for Kree to do those fancy runs, Connick said, were diluting the meaning of the lyrics. The woman in this song, he explained, is sad and depressed; she’s lost her man. “You don’t sound depressed,” Connick observed. He wanted Kree to do it more like Lena Horne, who introduced the song in 1940. No frills needed.

It seems to me that Connick is arguing that when an artist sings a song, particularly a classic, her interpretation of the song should honor and reflect the original intent of the composer–to the extent it is possible to ascertain that intent by studying the history of the song and the background of the composer.  In other words, Connick is arguing for originalism in the interpretation of musical texts.

I’d like to say that my mental wonderings about this issue are novel. They are anything but.  Indeed, legal scholars, such as Jack Balkin at Yale and Sandy Levinson at the University of Texas, have written about the similarities and differences in the interpretation of legal and musical texts.   For example, in their 1998 article, Law as Performance, Balkin and Levinson write:

Law, like music or drama, is best understood as performance–the acting out of texts rather than the texts themselves. The American Legal Realists distinguished “law on the books” from “law in action.” Our claim takes this distinction one step further: “Laws on the books”– that is, legal texts– by themselves do not constitute the social practice of law, just as music on a page does not constitute the social practice of music. Law and music require transforming the ink on the page into the enacted behavior of others. In an important sense, there is only “law (or music, or drama) in action,” in contrast to poetry or fiction, whose texts do not require performance but can be read silently to one’s self. Like music and drama, law takes place before a public audience to whom the interpreter owes special responsibilities. Legal, musical, and dramatic interpreters must persuade others that the conception of the work put before them is, in some sense, authoritative. And whether or not their performances do persuade, they have effects on the audience.

Balkin continues his discussion of this interesting topic in his recent article, Verdi’s High C.  Balkin writes:

Like (certain genres of) music and drama, law involves a text that has to be put into action by interpreters before an audience. And all three practices involve a “triangle of performance” — an intricate set of relationships and duties between the creators of texts, the interpreters of texts, and the audiences before whom the texts are performed.

As a result, in law, music, and drama alike, there are a familiar set of styles (or modalities) of argument that participants generally use to justify their choices about how to bring a text to life, or, in the words of the American Legal Realists, to put law into action.

Both articles are worthwhile reads–for anyone interested in this admittedly esoteric topic.