Adjudicating Europe

When reading late John Hart Ely’s “Another Such Victory: Constitutional Theory and Practice in a World Where Courts Are No Different From Legislatures”, a rather bitter critique of theories of constitutional adjudication that advocate understanding the U.S. Supreme Court as the place where the law is to be made, I was struck by an amusing footnote, where Ely reacted to the fashionable practice of some scholars to use metaphors from other disciplines, including musicology:

Over the years I’ve thought about trying to elaborate the metaphor between constitutional interpretation and jazz improvisation. It “works” on the gimmicky level that various approaches to interpreting the Constitution can validly be compared to various jazz styles. One might point to: approaches that embellish but never entirely lose the original melody; those that gradually abandon the original melody entirely but insist that each phrase relate to its predecessor; so-called “horizontal” approaches that abandon the melody but maintain a relation to the chord progression of the entire song; horizontal approaches geared to the chord progression of the particular line; “vertical” approaches that insist only on compatibility with the particular chord being played at the time, and so forth. (Having written that, I understand why music lecture rooms are equipped with pianos.) It should be no trick for readers of this Article to attach the names of various constitutionalists to these brief descriptions. If you have trouble placing a clause-bound “originalism,” that’s because it is essentially a rejection of any sort of “jazz” in this context. (The problem with this view is that the Constitution quite often–and quite intentionally, I think, though for present purposes that doesn’t matter–gives us nothing but chords.) The sort of legal realism that is the subject of this Article also seems to me not to fit, as it totally rejects the relevance of the “chart” except, perhaps, as a device for inducing false consciousness.

The reason I haven’t written this up is that it was never clear what anyone was supposed to learn from it about either constitutional theory or jazz–aside from something thoroughly trivial about the one she knew less about. (I do find it interesting that the way I play–basically a mix of the first, third, and fourth approaches mentioned–corresponds pretty well to the way I write about constitutional law, though I hasten to add that I am not so demented as to have sought this integration consciously.) The metaphor turns out not to be of much use in positioning us to say “this is just pounding–it doesn’t count as constitutional law.” For every time there develops what appears to be a consensus among musicians (and their listeners), to the effect that a certain interval is unacceptable noise, someone who can’t be dismissed on any principled basis as “not a real musician” starts using it, and often others follow. Minor seconds and major sevenths weren’t really accepted in jazz until the 1930s (classical music was often several decades ahead), and the raised fourth or tritone–originally if loosely, the “flatted fifth”–was controversial as recently as the 1940s, but today is accepted as commonplace, if not indeed a trifle tired. (While I suppose this too will pass, an unadorned minor or flatted ninth–one that is neither wrapped within a “bigger” chord nor formed by a fleeting, or “passing,” note in the melody–still strikes my ear, as I believe it does most people’s, as uncivilized. Indeed, I hereby propose the unadorned minor ninth as the artistic equivalent of Roe v. Wade, in place of Tushnet’s blasphemous nomination of Joyce.)

This isn’t to say that certain forms of constitutional interpretation aren’t illegitimate for specific institutions in specific societies with specific constitutional charters: they are. All that can be inferred from this excursion is what Tushnet infers from the literary context, that those who assert the possibility of differentiating valid from invalid constitutional interpretation on the basis of “craft limits” of a sort they assert are recognized in the arts are likely to be badly disappointed when they get around to a close examination of the alleged analogues. There are, however, more valid ways of testing constitutional theories than by the educated “feel” of those in the “interpretive community.”

Now I admit I am a fan of Maduro’s Principles of Contrapuntal Law (if you wanna know why I use this adjective instead of “contrapunctual”, see this paper, fn. 38), as well as Alexander Somek’s diagnosis of the present practice of EU legal community as “legal dissonance”. The reason why I like them is that they induce my understanding of things I sometimes know rather little about – be it constitutional theories (of EU law) or musicology (it’s getting better with the former, though).

Do you have some other constitutional metaphor (not only from the field of music) you like?