The goal of this article is a very modest one: to use one piece of music, the first movement of Beethoven's Eroica symphony, to consider how legal scholars, using the doctrinal principles they have developed to interpret the Constitution, would interpret the piece as conductors. This article makes no pretense of offering a new genre of legal hermeneutics; there is no suggestion here that a "law and musicology" movement will provide a comprehensive analytical framework which we can use to solve problems of Constitutional interpretation. Rather, this article suggests that musical interpretative "doctrines"--if so loose a collection of practices merits the term-- share some common elements with legal doctrines. Further, by viewing the law through the different lens that music provides, scholars might gain some new insight into their own doctrinal landscape.
This article focuses most of its attention on Justice Scalia and his "textualist" approach to interpretation. Justice Scalia's relationship with the Constitution is analogous to that of a conductor of an orchestral score: he is the principal advocate for a single theory of Constitutional interpretation, and he is a Supreme Court Justice who has put his interpretative theory into practice. Both conductor and Justice must approach the text with an interpretative constitutional interpretation is the only coherent and legitimate approach to statutory interpretation lends itself to examination by applying it to interpretation of a document from a different field. The benefits and problems of a textualist approach might stand out in clearer relief when projected against a musical rather than a legal background.
Conducting the Constitution: Justice Scalia, Textualism, and the Eroica Symphony,
9 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol9/iss2/2