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 CBalkin 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.

2 Comments on “Is Harry Connick Jr. An Originalist?–Interpreting Musical And Legal Texts”

  1. MKC says:

    Maybe a good brief is like jazz. But don’t venture too far into Thelonious territory–however brilliant, don’t get too atonic, even if it sounds good and is good. Stay in key.

    I think there are several brands of originalism. This constitutional necromancer believes in looking at the values as they were in 1789 (or 1818) and applying them to today. Sort of like jazz–looking at the essentials of the music, and bringing it out in the present moment. Text, history, structure.

    I very much respect reading the Bill of Rights broadly. I’d submit, though, that living constitutionalism presents it’s own dangers. A doctrine that giveth can taketh away. Remember that it was the Warren court that made up qualified immunity, with no basis in case law, text, or anything. They just made it up. And QI is no longer a shield for legit leos–it’s fortress for banditry against the constitution.

    Another example. In 1789, there were only four warrant exceptions (or three, depending on how you count them), and none of them were anything like a Terry stop, inventory search, so called “community caretaking” search, or whathaveyou other modern doctrine that flatly ignores the Fourth Amendment.

    A favorite case of mine that illustrates the principle is Huckle v. Money. It’s the 1760s. They arrest a guy and hold him for six hours while they go through his papers. (You know, like going through his computer or cell phone or wallet.) They gave him beer and steak while they held him.

    It was a BS charge. There was nothing there. They violated the guy’s rights. He sues. He gets a nice award. On appeal, the judges say, “yeah, sounds like 20 pounds damages to us.” (A year’s salary for a teacher was 60 pounds at the time.) But the jury awarded 200 pounds. And the judges on appeal said, “yeah, that works too.” They thought it was perfectly fair for the jury to decide that was the just amount due. This was 24 years before the Bill of Rights, mind you. How far we have fallen from there. 😦

    Considering the dead letter that our Fourth Amendment has become, I think a little constitutional necromancy might be a good thing. 🙂

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