"It is about using your eyes and ears and lived experience and education and critical lens and passion and skepticism and, above all, humility, to tease out the text’s infinite implications, and in doing so, to come closer to its essence. Speaking about Mozart’s K. 467 concerto, the great pianist Leon Fleisher once said, 'It can never be beautiful enough; it will always be more perfect in the imagination.' A performance of a work by Mozart, like our union, will never be perfect. But a life devoted to making either more perfect is a life well spent. It is a process requiring honesty and modesty, an ongoing, restless quest for an understanding that acknowledges the ambiguities inherent in a great text. With that devotion, these documents shape and reshape our consciousness; without it, they are mere paper."
Write Jonathan Biss — a concert pianist — and Christopher Serkin — a law professor — in
"We Should Play the Constitution Like a Piano" (NYT).
For the annals of Things I Asked Grok: 1. What's the expression that's something like "He played you like a fiddle"? 2. Given that, what do you think of the op-ed title "We Should Play the Constitution Like a Piano"? 3. Why doesn't it have a bad connotation, like you are outrageously manipulating the Constitution? 4. What if we could amend Mozart’s K. 467 concerto? 5. Why didn't Mozart write instructions for how to amend his works?
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"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..."
It's an interesting premise, comparing the interpretation of the Constitution as if it's subject to artistic input. But it's really the old slippery slope fallacy, in a top hat. This is like the NPR chief, schooling us that truth gets in the way of consensus, and therefore we should creatively censor people we don't like - as Germany just did, to an entire political party that is in opposition, and just happens to be polling as the 'most popular'.
Stick to the music, as it's written please. You're a pianist - not a composer. Dazzle us with your virtuosity, and park your virtue.
Numbers 4 and 5 are based on incorrect assumptions, if I correctly remember my college music theory classes. Improvisation upon the written score was a common practice among pianists of Mozart’s era. Since these improvisations weren’t recorded, it’s difficult to say how they sounded.
Yes, as long as we all agree we're going to play it as written, no freestyle interpolation allowed.
"tease out the text’s infinite implications" Except the Constitution's implications are finite. Of course, it is the essence of prog hubris to strive for unbound power. The Constitution, which constitutes a particular thing, therefore stands in the way. As Woodrow W well knew, and was honest about.
Objectivity is so White.
Biss and Serkin are putting the 'con' in Con law.
Riffing on Shouting's remarks, yes that sounds consistent with my reading because the improvisation must be faithful to the written music. That is, same key changes and meter so as fit within the theme and intent of the composer.
So at this point I'm pretty sure my vision is probably 180 degrees out of phase with the NYT take on this idea.
https://youtu.be/fNU-XAZjhzA?si=JIqR6wzysIWP0zFV
"Our reverence for the Constitution might be a distraction that is getting in the way of finding common ground and getting things done."
Shorter Biss and Serkin
It's almost like they don't realize we can just shoot them in the head when they go too far.
Should I consult a Serkin on Mozart, it will be Rudolf, not Christopher.
As the son of an Eastman and NYU trained musicologist, I feel fully qualified to comment on the Constitution. Do you want to talk about improvisations? How about that Interstate Commerce Clause?! It’s spawned more In-A-Gadda-Da--Vida drum solos than the framers ever composed.
This is all such nonsense. The reality is, contrary to the Constituion and the American history, we've decided to give the Federal Judiciary unlimited power, including the 700 district judges. They can do anything. Conduct foreign policy, run the executive branch, and strike down any law for any reason.
The Left has seen this "lever of power", and is using it stop Trump from doing anything. The question is what are the Republicans going to do about it. The congress can rein in the courts, and the Trump can pull an Andrew Jackson, but whether they will do anything is open to question.
When a major symphony orchestra elects it conductor -- fairly, with 3rd Percussion getting the same vote as First Chair violin -- then we can talk about the Constitution in musical terms.
There is a reason why you have never heard variations on Mozart's music - because it was tried and they suck.
What utter nonsense. A performer can "interpret" a work past all recognition and the worst that can happen is a disappointed audience and an embarrassed musician. Then it's over until the next performance that could be better or worse than the last one, but, nevertheless, leaves the work unchanged. Start creatively "interpreting" the Constitution, as too many people are so eager to do, and you can ruin a nation.
How insulting. To write and play music is an artistic, subjective expression. Law should have nothing in common with that and be as objective as possible.
Quit trying to make fetch happen.
I think Mozart music would be perceived differently if playing it any way other than as written could lead to injury, or death.
All talk in favor of a “living Constitution” boil down to “the Constitution prohibits us from doing stuff we want to do, so it should be ignored.” If the Constitution doesn’t suit you, you can try the deliberately difficult amendment process. Or, you can get the Supreme Court to issue a ruling in your favor. After all, the Constitution only means what a majority of Supreme Court justices say it means, actual text notwithstanding.
"We Should Play the Constitution Like a Piano"
Progs: We should be able to change the Constitution without going through the necessarily-difficult process of actually changing the Constitution.
Nothing more than dressed up sophistry for more "emanations" and "penumbras" that would allow the leftists to create their version of a Peoples Paradise without ) that darn Constitution getting in their way.
What Country Lawyer said. If a musician puts out a crappy interpretation, the next musician is not bound by court precedent and stare decisis to play it that way again.
To me, the constitution performs a similar function for the country as the skeleton does for the human body. The skeleton provides a framework, but the muscles, tendons, fascia, and other connective tissues provide the tension needed for the body to function.
Without a shared moral vision, without shared values, and without mutual personal respect the constitution goes from a sacred ideal to a weak impediment inviting constant attacks.
The rule of law means nothing when the law bends with the wind.
we should play the Constitution the way we play a piano..
we should use the Constitution the way we use a piano...
play it any way we want.. use it any way we want..
i Want to use the Constitution as a fancy table..
something to set my wineglasses on, while my slaves* tend to me.
slaves* oops! i meant my undocumented darkies.
But seriously, among the parts of the piano that we Need to play different are the 13th-15 amendments.. Just because those Republicans Tried to take our undocumented darkies doesn't Mean that we shouldn't have undocumented darkies!
"Numbers 4 and 5 are based on incorrect assumptions, if I correctly remember my college music theory classes. Improvisation upon the written score was a common practice among pianists of Mozart’s era."
But an improvisation would not be an amendment of the score, so it's not analogous to amending the Constitution.
The real problem is the republicans or conservatives refuse the real issue: Unlimited and unchecked judicial power. Trying to appoint "Judges that will go by the constitution" and "not legislate from the bench", hasn't worked.
We need to strip district judges of their power to issue nationwide injunctions for a start. We need to scale back the ability to do anything and order everyone around. Because if the left sees a lever of power, they will use it.
Notice the difference between the right and left. The SCOTUS gets rid of roe v. wade, and the D's get within a couple votes of passing a bill to pack the court. With Biden getting his autopen to sign it.
The District judges stop Trump from running the exec branch or enforce the immigration laws, the R's do nothing, except issue a few feeble threats. Meanwhile the R voters seem incapable of even understanding the difference between a state and Federal judge.
seriously, according to the Democrats; our Living Constitution allows us to give the Federal Judiciary unlimited power, including the 700 district judges. They can do anything.
Our Living Constitution means WHAT EVER we (us Democrats) WANT it to mean.. Nothing More; Nothing Less. The 13th amendment is no more valid than the 2nd, or the 1st. Think of our Constitution as a set of quaint suggestions, nothing more
They want to play the Constitution like a fast and loose piano.
Yes, you can look at Mozart's score and do your improvisation and you can look at the Constitution and do "improvisation." That's how the authors are using the analogy. I'm questioning the analogy. The Constitution has as part of its text instructions on how to amend it, and from that, you might want to infer that just improvising on the text to express your current feelings is wrong in a way that is different from improvising on a musical score.
Musical improvisation is playing cliches. Like LLM hallucinating. Add hallucination to the Constitution.
Scott Adams remarks today that every day there's a "A Federal Judge has ruled" story.
Leon Fleisher said — about the Mozart piece — "it will always be more perfect in the imagination."
"More perfect" is the phrase in the first sentence of the Constitution: "We the People of the United States, in Order to form a more perfect Union...."
Language usage pedants could take issue with "more perfect." Should say "more nearly perfect."
So the distinctive (and technically wrong) 2-word phrase jumps out. Maybe the essay authors got started on the essay when they noticed Fleisher's use of those words.
The op-ed authors expect us to notice the parallelism. They say "A performance of a work by Mozart, like our union, will never be perfect."
But what does that prove about the soundness of the analogy?
This mindset goes back - at least - to Woodrow Wilson:
"And what was the core of progressivism? Once you get past the specific policies and get to the crux, it comes down to a passionate belief that the right experts, with enough resources and power, could manage the social and economic order better than the seeming anarchy of freedom and democracy. This belief, which amounted to a kind of religious faith, was the animating principle of the age, a core doctrine that enticed an entire generation.
In order to understand the times, it’s best to visit the writings of Woodrow Wilson, who won the presidency in 1912 almost by accident. He did not win a majority of the popular vote because the opposition was split because of Theodore Roosevelt’s Bull Moose party. The mostly unpopular Wilson took power and embarked on a completely different program.
Wilson’s 1913 book “New Freedom” is utterly disdainful of the past, particularly as regards the old freedom.
“We used to say that the ideal of government was for every man to be left alone and not interfered with,” he wrote, “except when he interfered with somebody else; and that the best government was the government that did as little governing as possible. That was the idea that obtained in Jefferson’s time. But we are coming now to realize that life is so complicated that we are not dealing with the old conditions, and that the law has to step in and create new conditions under which we may live, the conditions which will make it tolerable for us to live.”
What is this new freedom? It is a management project: “Human freedom consists in perfect adjustments of human interests and human activities and human energies.”
And who would do the adjusting? The experts, of course, with credentials, high learning, access to resources, and lots of executive power. This was the essence of Wilson’s administration. Very quickly, we saw the tariff replaced by the income tax and the creation of the Federal Reserve, which was supposed to control business cycles and tamp down inflation and bank failures. Also, he helped bring about the 17th Amendment, which converted the U.S. Senate from an appointed body representing the whole of the states to yet another popularly elected version of the House of Representatives.
These three changes upended the constitutional constraints on government put in place by the framers."
Source: https://www.theepochtimes.com/opinion/the-world-ushered-in-by-woodrow-wilson-5710839
The most obvious problem with the analogy is that judges are different from musicians!
They're not supposed to make the legal text aesthetically appealing and expressive. It's not about beauty. What if it was?
I might go along with Mozart Requiem or Mass in C Minor as interesting. More along the lines of Bach.
Really, how long has it been since we followed the Constitutional process and amended it? In this anti-bipartisan era talk of amendments is as fanciful as it is academic. Therefore I propose, per the authors of this article, that Donald J Trump is doing exactly what they suggest. Exactly. If they don't like his interpretation they can find their own pianists to run against his successor. But Trump has the economy jumping and his supporters dancing and his detractors proposing atonal tunes instead.
Sad sad Shostakovich.
Sure it's a crappy analogy but it's the best they can do. It has provoked interesting discussion, which is all Althouse really needs from the tidbits she posts. Maybe she wants more. But as a reader and commenter I'm happy with how it's going.
I think it's "he played you like a cheap fiddle." "He played you like a cheap piano" works about as well, especially if you pronounce the last word "pianer."
A lot went wrong when journalists decided they were creative. Same thing with lawyers. I'm not so cool with law professors leapfrogging off the backs of concert pianists to appear more cultured for their readers.
Power doesn't really enter into a performer's interpretation of a musical piece, does it? On the other hand, questions of power over other people are paramount in judicial decisions. Imagine a banker or insurance professional writing a piece saying that the rules of their business ought to be fluid and open to interpretation. Sure, different bankers and different brokers will have different approaches to business, but they can't use their imaginations to interpret laws and legal documents as they see fit.
I'm hoping we can make Dwayne "the Rock" Johnson's "I will beat you like a Cherokee drum," into a thing.
I asked the internet how many Supreme Court Justices are also musicians but I got bupkis.
These people are evil. The only question is whether they are knowingly so, or whether they are deluded.
@Mike: Really, how long has it been since we followed the Constitutional process and amended it?
The most recent amendment to the Constitution was the 27th Amendment, in 1992. It says any changes to the pay of senators and representatives cannot take effect until after the next election.
It is a curiosity among the Amendments, in that it was first proposed in 1789, but did not gain enough votes for passage along with the rest of the Bill of Rights. It then lay dormant for more than 200 years until enough state legislatures ratified it and it took effect.
There’s a definite tension—“living constitution” is just a fancy way of saying “no constitution, we do what we want”—but originalism is a fantasy. Any time you apply the constitution to an issue that didn’t exist when it was written, you are trying to imagine what the framers would have said about it if they were alive today. And how is that not a type of living constitution?
What is the piano in that simile? (grok said is was a simile. (It seemed to be an analogy to me). The constitution wouldn't be the piano, would it? The music, the composition would be the constitution, so what is the piano. The court system? Our culture? And we're all the player. I don't get that, and I don't trust that. Like the commercial said, "that's not how any of this works."
Ann Althouse: "The most obvious problem with the analogy is that judges are different from musicians!"
True, but judges are lawyers and if you ever spent any time working in some capacity in the music industry you would immediately see that the lawyers believe they are artists just like the musicians...right down to the diva behavior!
Music is meant to get the listener to feel something. The Constitution is meant to restrain the government from doing something.
Serkin disqualifies himself from being a law professor.
I saw Biss play Beethoven's fourth concerto, which allows for a cadenza (his fifth, the "Emperor," does not). IIRC Biss used one written by someone else, but some performers will improvise one. It was a fabulous performance: I'm sure he's much better on the piano than James Madison was on any musical instrument.
tim maguire@ 10:51am,
Why don't you name a few such issues, so we can see if we agree with you?
If a pianist plays around with Mozart's work, he or she makes, at worst, bad music.
Screw with the Constitution and you may bring disaster upon our country.
Not even close to the same thing.
Well, of course only one person is improvising on the piano at once, and they have total power over what note comes next.
If you have two people improvising at once, things can get ugly. Music forms like Jazz that do allow improvisation usually do it in a structured way, and in the context of a jazz group that plays together frequently and usually has a clear leader. If your improvisation style isn't consistent with what the group is going for, you might be asked to leave and join a different group.
Lastly, music improvisation doesn't have any consequences. Making something familiar sound weird and strange can be a good thing, and if it turns it into something ugly and harsh you can easily reset and try it differently next time.
...or what the old country lawyer said.
Hass, your answer says a lot about the amendment process. I knew it was a hard slog but 200 years WTF!
About all that jazz: Bobby McFerrin & Chick Corea Mozart Sessions.
Progressives play the constitution lilke a rusty trombone.
It’s not about beauty. What if it was?
The sentencing phase of any trial would be much more interesting.
If the Justices can read whatever they want into the Constitution, the document becomes meaningless. The rule of law is only meaningful if everyone has an understanding of what the scope of the law is, from its plain meaning. If Justices make the law as they go along the law becomes arbitrary and no one has any expectation of being within or without the scope of the law.
The Constitution is to be interpreted in black letter, and in the spirit of our national charter. It was not intended to be calculated through automated intelligence or imagined by believers at The Twilight Fringe.
Hassayamper said :
"tt is a curiosity among the Amendments, in that it was first proposed in 1789, but did not gain enough votes for passage along with the rest of the Bill of Rights. It then lay dormant for more than 200 years until enough state legislatures ratified it and it took effect."
*******************
You often hear pundits claiming, "There's a reason why the First Amendment" is first"--- supposedly because Freedom of Speech was so "fundamental to the framers' vision of democracy."
But as noted above, the First was actually the Third of the original Amendments proposed. Had the first two passed, the First would today be the Third.
It's also ironic to see the original state legislatures being unwilling to forgo helping themselves to the public trough, without an intervening election giving their constituents a say in the matter. Pols gotta pol!
Sure, the constitution only means whatever libtards need it to mean... Shut up and play, piano man.
Michael Fitzgerald said...
Sure, the constitution only means whatever libtards need it to mean... Shut up and play, piano man.
****************
And play in 7/4 time to boot!
“Yes, you can look at Mozart's score and do your improvisation and you can look at the Constitution and do "improvisation."”
I don’t care if musicians screw around with Mozart, because nobody has to listen to it. But if judges screw around with the Constitution, that could have consequences.
Sergio Fiorentino does a nice improvement of BWV 1001 first violin sonata
Eric the Fruit Bat said...
I asked the internet how many Supreme Court Justices are also musicians but I got bupkis.
Antonin Scalia could play the piano, but he gave it up. He also said that he listened to Beethoven while writing opinions and thought that hearing modern hard rock with its “noise and ugliness” might constitute cruel and unusual punishment as envisioned in the Constitution.
But I look forward to the wonderful history that AI will invent for us. John Marshall on bongos, accompanied by Bushrod Washington's flute. Warren Burger's Theramin versus William Brennan's Stratocaster in the Battle of the Bands. And of course, Roger B. Taney's primo blues guitar and fans' horror when he went electric.
4. What if we could amend Mozart’s K. 467 concerto?
5. Why didn't Mozart write instructions for how to amend his works?
John Cage may have. Aleatoric or stochastic music, the music of chance, was big in the postwar world. Even Mozart had a Musikalisches Würfelspiel K.516f.
Interpretive virtuosity belongs in the concert halls and legal pyrotechnics belong in courts. Constitutional issues should be processed dispassionately with mechanical precision.
"The originalist methodology fails to acknowledge the role that one’s individual judgment inevitably plays in interpretation."
So does the living constitutionalist methodology.
That's the problem.
The problem is- interpretation of the Constitution. Most of the time- it says what it says, and it doesn't say a whole lot of other things.
Let's take the second- in it's whole: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. It says, quite clearly, in plain text, the right of the people to keep and bear arms shall not be infringed. It has words before it- "A well regulated militia being necessary to the security of a free state". Who is today and was then "the militia"?
Almost everyone, federally: (a)The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b)The classes of the militia are—
(1)the organized militia, which consists of the National Guard and the Naval Militia; and
(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
In some states the age is 16, and in some females are now included in all militia classes. But what does "well regulated" mean? And does that apply to "the right of the people to keep and bear arms shall not be infringed"? Then, as now, the unorganized militia was and is expected to show up when called. Posses are still a thing, though rarely used today. But sheriffs in some areas do still deputize citizens (aka- militia) for certain purposes.
So "the right of the people to keep and bear arms shall not be infringed" doesn't need interpretation, it means the right of the people to keep and bear arms shall not be infringed. Well regulated, not being clearly defined, would apply when the unorganized militias is called up to suppress riots or repel invaders. (or Indian raids...) Someone gets appointed leader, and the rest have to follow directions. The organized militia already has that all set up.
So do we have the right to jeep and bear arms? Under currently existing court rulings, absolutely not. Sawed off shotguns are banned, by a Supreme Court ruling, because they're not weapons of war. Which, by the way, they were when the decision was handed down. That was one of those collusion cases between lawyers and courts to get to a decision the government wanted. Used often in modern times in environmental cases. And we can't own fully automatic weapons because- they are weapons of war. So we're not allowed to own ANY weapon unless it's court approved. And license to own weapons, still a thing upheld by many courts, is akin to needing a government license to own a press (or laser printer) or a license to be a journalist- report news as an unlicensed blogger like Ann? OFF TO THE HOOSEGOW WITH YOU!
What I really love is the totally ignorant people who say- But if we don't regulate weapons' ownership people could own cannons! There are no federal restriction on owning or operating any cannon or artillery piece, and AFAIK- no state restrictions. Lots of private ownership of cannon. Black powder with balls for the most part. Modern artillery shells are a bit harder to obtain.
And gatling guns- solely a weapon of war or riot suppression, really the same thing. No ban on private ownership of them.
So while the courts debate on whether or not a scary looking black gun and accessories can be banned because they're weapons of war- there are other weapons out there that are totally weapons of war that are perfectly legal to own. And others with the exact same features but not scary looking.
And where, anywhere in the federal or any state constitution does the government get the power to ban suits of armor- known today as bulletproof vests or clothing?
4. What if we could amend Mozart’s K. 467 concerto?
5. Why didn't Mozart write instructions for how to amend his works?
In the concertos he left pauses near the end of the first (and sometimes third) movements for cadenzas, where performers could improvise or compose their own music to insert at that point. That suggests that he didn't want anything else "amended" other than maybe adding some ornamentation here and there, which is still done. Kind of like, "Here's where you can write your own music, leave everything else alone." As it turns out, most performers use the cadenzas Mozart wrote, or ones that Beethoven wrote for Mozart's concertos. Though pianist Robert Casadesus wrote a brilliant cadenza for K. 467. link (cadenza starts at around 11:40).
Baroque music had a figured bass, meaning only the harmony was written and details left to the keyboard guy.
After posting, looked up when Gatling guns were invented. Don't trust google ai. It says:
Is a Gatling gun legal to own?
AI Overview
In general, owning a Gatling gun, whether the original hand-cranked type or a replica, is not illegal in the United States, though it is illegal to manufacture or register new ones after May 19, 1986.
Then, if you search gatling guns for sale- there's a whole bunch available. Some labelled CA legal...
You can ornament music with side-boob as well. Constitutional implications are immediate.
https://youtu.be/_fOR6XHJU64?si=JgQ6G9Nn--aCRAzj
" Well regulated,"
If you check your OED you'll find that in the 18th century it meant equipped to do the job. or qualified to do the job. Much like clocks of the era were said to be "regulated". So a "well regulated militia" would be men , and now women, who have the equipment to meet the need to repel invaders. To put it plainly all the things that an infantryman in the Army would have.
"And gatling guns- solely a weapon of war or riot suppression, really the same thing. No ban on private ownership of them."
It is perfectly legal to own a Gatling Gun as long as it is chambered in a black powder caliber and uses a crank.
But what is a judge doing first and foremost? Deciding a case and writing an opinion. There is surely enough opportunity to use one's intellect and creativity in that and to work in as many tones and emphases as the decision requires. Yes, interpretation of the Constitution and laws will also be required, but the less a judge is satisfied with the workaday aspects of the job and the more he wants to be an artistic virtuoso of interpretation the worse it is for the country.
A generation or two ago, a law professor might have compared constitutional interpretation to literary criticism. That won't fly now. On the one hand, it's too close to originalism. On the other hand, today's critics can read anything into a literary work. The differences between one musical interpretation and another go beyond words, as music itself does. Words convey more precise meanings about things in the world than music. Since courts and judges have to work with words the analogy to playing Mozart may not be the best one possible.
Itzhak Perlman: Brahms - Violin Concerto in D major, Op. 77 is like that for me. He loved playing it. I love listening to him play it.
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