Written in the 1780s, it both enlightens and confounds. Its brilliance is undiminished, but the intervening years make it feel distant, at times impossibly so, challenging modern interpreters to understand what an 18th-century text means today.
Sadly, our attempt to understand the U.S. Constitution has too often become a mechanistic search for a correct answer, with little nuanced judgment. That is thanks to the ascendance oforiginalism on the Supreme Court. The originalist justices believe the meaning of the document was fixed when it was enacted, as opposed to living constitutionalists, who argue that the meaning and application of the Constitution should adapt to a changing world and not be bound by the judgments of men who lived centuries ago.
The originalist methodology fails to acknowledge the role that one’s individual judgment inevitably plays in interpretation. Total objectivity is an attractive but dangerous illusion that shields the court from wrestling with our society’s complexity and from criticism of its opinions.
Today, with a confrontation between the executive and judicial branches seemingly underway, the need for a thoughtful, credible reckoning with the Constitution’s meaning is especially urgent. Legal scholars, judges and constitutional lawyers would do well to consider the way interpreters have wrestled with different but equally challenging late 18th-century texts: classical music compositions.
Art and the law, of course, serve vastly different functions in society. But the performing musician’s embrace of complexity is precisely what is needed from the courts at this moment.
To a musician, a strictly originalist approach feels intolerably constricting, even perverse. A compelling performance of a piece of music requires both accuracy and creativity, insight and instinct, reverence for the composer and the breath of life brought by the interpreter.