Another Take on Cadenzas

I am most grateful to Marc for his posting about Professor Dan Farber’s Constitutional Cadenzas. I think that Marc has the better interpretative take by using the musical parallel of appoggiaturas rather than cadenzas. My remarks will concentrate on the Farberian concept of Constitutional improvisation in interpretation, for that is his point. I appreciate the reference to cadenzas for I was once a musician of sorts—first French hornist in high school, and second French hornist in college. However, legal interpretation is vastly different from musical interpretation which may include the improvisation permitted by the cadenza. Does law permit improvisation via the analogy of the cadenza? No, not by the interpreter. The maker of the law is the composer. The maker has the authority to amend; to revoke; or to start afresh. The interpreter has a different function: to explain the law, not to improvise upon it.

Both musical and legal interpretations are more art than science, but they differ greatly in other ways as my negative response would indicate in response to the suggestion that legal interpretation can accommodate improvisation. (Now, writing MOJ posts is a form of composing, is it not? Surely the allusion may apply as long as what results is symphonic, not cacophonic, but I digress…) So I return to the subject under investigation:

First of all, the device of the cadenza is a proper vehicle for improvisation, but the same cannot be said of any portion of the Constitution. The creative thesis proffered by Professor Farber is that the mechanisms for using cadenzas in Constitutional interpretation are to be found in the Ninth and Fourteenth Amendments. Interestingly, he does not mention Article V of the Constitution which does not authorize the legal text equivalent of cadenza improvisation but is the mechanism for amending the Constitution—the musical score, if you will.

If there is a need to alter the Constitutional score (the text), there is a specific, formal, and Constitutional mechanism for doing so. To follow the example of cadenza improvisation in Constitutional interpretation is, I think, an ultra vires act that is not without considerable problems—be the interpretation on grand or modest themes—which are antithetical to the rest of the text.

My concern intensifies when the objective of the Constitutional cadenza is the defining or discovery of new, un-enumerated rights. I very much appreciate Professor Farber’s nuanced discussion of rights and duties of the claimant, but I am concerned when he moves too quickly in the field of “absolute rights”. I think there is such a thing, but how one defines them is not through the device of the virtuoso’s subjective improvisation. It is through careful interpretation which does not stray from the “melody” as Marc accurately states. In this regard, the reference to John Adams’s thought “that a lawyer ought never to be without a volume of natural or public law, or moral philosophy, on his table or in his pocket” provides an important point of reference useful for understanding the distinction I am presenting. Adams understood that improvisational virtuosity can be a perilous course when the interpreter’s subjective perspective is all that is considered.

This brings me to a further point about methodology in legal interpretation. While it is more art than science as I stated earlier, it is not without proper mechanisms to anchor the interpretative product in rooted objectivity rather than improvisational subjectivity which is the hallmark of the virtuoso’s cadenza. I think this is why Marc’s concept that the appoggiatura is a good one because it, unlike the cadenza, cannot stray from the text of the score of the Constitution. Unlike musical scores and the composer’s notation that a cadenza is permissible, the score of the Constituion means something to the composer’s intention underlying the drafting of the text. A grace note in interpretation may be acceptable if it complements the intention of the composer; but a textual improvisation that strays from the melody of the text is a dramatic overhaul of the composition that is tantamount to writing a new text with new and dramatically different meaning.

Professor Farber seems to acknowledge this when he states that “[g]ood constitutional decisions are neither the mechanical application of formal rules nor the freewheeling world of pure politics. They rely instead on judgment and discretion, which by definition incorporate both flexibility and constraints.” Farber then goes on to charter his outline for a methodology of accomplishing “good” interpretation, and I shall offer a few thoughts about my own.

I agree with Professor Farber that fundamental rights are of vital importance, and they ought not to be left to human caprice or the whimsy of the lawmaker. Moreover, as I have stated on these pages before, basic rights are something that come with the human person; they are not the gift of the state. If they were, the state could retrieve whatever it gives, and that would undermine the essential concept of basic rights. That is why the art of legal interpretation concerning rights and their meaning is the crucial business of the lawyer’s trade. When addressing matters dealing with fundamental rights, the lawyer must realize that he or she is addressing the common good—the good of each person entails the good of all, the good being the communal right for each to flourish. The good interpreter of them realizes that rights and duties must never be separated from one another. Even fundamental rights thus carry the obligation of responsibility to others. This is why Catholic social thought always ties the two together, not because it is a theological precept but because it is a principle of objective reason that makes sense out of laws that address freedom not as unrestrained license but as ordered liberty. The structure of law does encounter gaps from time to time, so the question becomes: how are they to be filled by the interpreter?

As I said, texts are important to legal interpretation for they are the starting point. With gratitude to Judge Noonan’s translation of Alexis de Tocqueville’s sister Angélique, she made a good point when she said in rhetorical fashion: “perhaps the words of the constitution were like those of many hoary documents, verbiage without vitality in them.”

But law is verbiage with vitality. Again, these normative texts mean something that has or can have an impact on everyone’s life. Be it the text of the Constitution or that of a statute, the text is the work of the interpreter; it is not the point of departure to an untethered improvisation. Most of the time the text—its plain meaning—will suffice when its meaning is sought. But there are occasions when it does not, for the text of the law by itself presents ambiguity that needs clarification, not improvisation.

For example, I use with my students in interpretative methodology classes the case of a municipal ordinance which “bans all gay demonstrations.” The illustration provokes certain reactions which are now predictable in this time of the second decade of the twenty-first century. So I ask students who display some measure of outrage to the hypothetical whether we ought to consider when the ordinance was enacted. A typical and frequent response is: why does that matter?

Well, it matters a great deal when the plain meaning is, after all, not plain at all. When I mention that the ordinance was enacted in the late nineteenth century to prohibit the display of the latest fashionable attire (“The Gay Nineties”) some students recognize the point, which has to do with the intention of the drafters and the objective they were trying to achieve through the text they wrote and the language they selected. If it’s worth saying once, it’s worth repeating again: texts mean something, and they mean something essential to the law when the interpreter is grounded in the reasons for the law’s existence by searching the context of its promulgation. It is in this context that the discussions of the drafters and the purpose they sought to achieve can become clear to the interpreter who chooses to place himself or herself in the shoes of the drafters.

My reluctance to embrace the cadenza approach to legal interpretation should become clear. The virtuoso makes his or her own composition by improvising on what has preceded; the legal interpreter does not. The legal interpreter out of necessity must remain rooted in the text and the objectives that the drafters sought. If the interpreter persists on the road of improvisation, he or she is not interpreting law but is making it. If the legal exegetist is frustrated by the limits of the text and the project of objective interpretation, he or she has access to the legislature to make new law. When the Constitution is the text that is the subject of interpretation, its drafters foresaw the day when the text’s language cannot be stretched without limit—like a rubber band, it will break when stretched too far. That is why Article V was included by the Framers to fill in the gaps that emerge after the Constitution’s promulgation.

RJA sj