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
I want to underscore the importance of what Rick's student writes below about prayer, a point that was brought home to me by a remark that Alasdair MacIntyre made in response to a question following this lecture at Notre Dame ("On Being a Theistic Philosopher in a Secularized Culture"--the video is on the upper right hand corner of the web page, and the queston and MacIntyre's reply start at 1:25). The questioner asked about the centrality of the practice of prayer in a university to the search for truth, beauty, and goodness. I can't do justice to MacIntyre's reply, but he began by saying that we are apt to think of certain aspects of religious belief as part of a public conversation with people of different (or no) religious belief, while prayer is viewed as "private" (even liturgical prayer is among those of "us" who adhere to a particular tradition). But it is, MacIntyre said, important that we present ourselves (MM: humbly and appropriately, of course) as people who pray, including listening amid silence, although that opens oneself up to dissent and scorn because prayer is, from a secular view, the most useless and superstitious manifestation of religious belief.
As Saint Augustine writes:
But again one might ask whether we are to pray by words or deeds and what need there is for prayer, if God already knows what is needful for us. But it is because the act of prayer clarifies and purges our heart and makes it more capable of receiving the divine gifts that are poured out for us in the spirit. God does not give heed to the ambitiousness of our prayers, because he is always ready to give to us his light, not a visible light but an intellectual and spiritual one: but we are not always ready to receive it when we turn aside and down to other things out of a desire for temporal things. For in prayer there occurs a turning of the heart to he who is always ready to give if we will but take what he gives: and in that turning is the purification of the inner eye when the things we crave in the temporal world are shut out; so that the vision of the pure heart can bear the pure light that shines divinely without setting or wavering: and not only bear it, but abide in it; not only without difficulty, but even with unspeakable joy, with which the blessed life is truly and genuinely brought to fulfillment.
Augustine, On the Lord's Sermon on the Mount 2.3.14.
Thanks to Susan for calling our attention to the important feast we celebrate today. Here is a link to an underappreciated apostolic exhortation on St. Joseph written by Blessed Pope John Paul II. http://www.vatican.va/holy_father/john_paul_ii/apost_exhortations/documents/hf_jp-ii_exh_15081989_redemptoris-custos_en.html
Richard M.
MOJ readers are probably familiar with the work and success of Cristo Rey schools. A student in my "Catholic Social Thought and the Law" seminar shared these thoughts about the schools:
I have a few friends who work for various Cristo Rey High Schools across the country. As the first of my teacher-friends described the organization’s mission and model, I became fascinated with the concept. These schools only serve economically disadvantaged families. Students earn the majority of their tuition and gain real-world professional experience by working in a corporate office one day each week. Students participate in a rigorous college-preparatory curriculum. Family, community and Catholic school intersect to mutually support the development of these high school students who might otherwise fall through the cracks if they remained in the setting of public education.
The first important aspect of these schools is their commitment to Catholic education. Parents are provided with an avenue to expose their children to a value-oriented education. If students are not Catholic, they can still participate; students of all faiths and cultures are welcome to attend. Additionally, by serving only economically disadvantaged students, participant families are given options about and control over their children’s education that may not otherwise be able to occur. These aspects exemplify the notion that parents possess the fundamental right to make childrearing and education decisions. We discussed these themes in class when exploring the topics of religious freedom and the primacy of the family unit. All this is accomplished through a sustainable financial model that creatively draws in the majority of students’ tuition expenses through the Work Study Program. This program, in turn, has merits of its own. Students at Cristo Rey High Schools benefit from hands-on, real-world professional experience one day each week while they take college-prep courses the other four weekdays. Few peers across the country can boast of this opportunity. This professional experience might spark an interest in a certain career, or, at the very least, I imagine it builds students’ confidence and provides an impressive bullet on a resume that further prepares these students for college. Local businesses also benefit from students’ presence in their places of employment. Barriers likely erode between the corporate world and the world of these economically disadvantaged students, which I’m sure is a valuable educational experience for all involved.
The Cristo Rey Network provides a unique model that led me to contemplate their role as an organization that, while linked to the Church, also mediates between the Individual and the State. As such, it is a daring, powerful model for “shaping souls.”[1]
[1] From our discussion of The Education of Henry Adams
This is a post I wrote on this day a couple of years ago in honor of today's feast day:
Today the Catholic Church celebrates the memorial of St. Joseph the Worker, one of two days in the church calendar on which we honor St. Joseph. The memorial was instituted by Pope Pius XII, some say in response to Communist-sponsored May day celebrations for workers. It is a day dedicated to the dignity of labor and to honoring workers.
Work is central to who we are as human persons. As our friend Randy Lee once put it, "man does not work because he does not have the wealth stored up to be constantly at rest; man works because his dignity is in creating." <em>Gaudium et spes </em>speaks of work as the means by which humans develop themselves and in <em>Centesimus Annus</em>, Pope John Paul II observed that humans express and fulfill themselves by working.
This view of work stems from our creation in the image of God; created in the image of God, human are called to co-create the world with God. We participate in the act of creation, we share in God's creative activity, through our work.
On this day on which we remember St. Joseph the Worker, we pray in a special way for all workers and we pray that we may develop and use the gifts God has given us to do the work to which He has called us.
