Jack M. Balkin
91 Texas L. Rev. 1687
In 2000, an outcry erupted at La Scala Opera House when conductor Riccardo Muti led a performance of Il Trovatore that omitted the tenor’s famous high C. In this Article, Professor Balkin argues that Muti’s explanation—that the C did not appear in Verdi’s original score—is, like many originalist arguments, more radical than it initially appears. Comparing Muti’s interpretation of Verdi to decisions such as Bolling v. Sharpe, Professor Balkin claims that musical performance provides a more useful analogy to legal interpretation than other art forms because of the role of the audience in shaping a work over time. Law, like music, involves a triangle of interpretive influences: the Framers (composers), the Judiciary (performers), and the public (the audience).
Professor Balkin argues that law and the performing arts use similar modalities of interpretation, and that both are constrained by convention and genre. In Verdi’s time, performer interpolation was expected, and Verdi approved the high C that later became an expectation. In this context, Muti’s interpretation was radical. Proponents of the C can use Verdi’s approval as an argument from intent, or use the subsequent predominance of the C as an argument from precedent. A powerful argument from ethos also exists: the spirit of Italian opera is to embrace the dramatic finale. In the same way, defenders of the result in Bolling v. Sharpe might argue that the arc of the Constitution bends toward justice, and that a judge who refuses to integrate the District of Columbia schools because of a too-narrow construction of the Constitution’s words does not really understand the great narrative of American progress. Professor Balkin emphasizes the importance of the audience in both law and musical performance in determining whether radical interpretations such as Muti’s become mainstream.
In closing, Professor Balkin addresses the most evident difference between musical interpretation and legal interpretation: in United States law, the goal is uniform interpretation, whereas in music, multiple interpretations are welcomed. Professor Balkin notes that this goal of uniformity is not intrinsic to law, however, but a product of the hierarchical American legal system. As illustrated by different expectations in opera than in other musical genres, the most important shapers of judicial interpretation are institutional.