What should the Supreme Court’s originalist justices do when confronted with nonoriginalist precedents on which citizens have relied?
The Mistaken Music Analogy
Jack Balkin has a post that reports on his new article comparing law and music. Jack writes:
It uses as its central example an actual controversy that occurred at the La Scala Opera house in December 2000, when a tenor failed to sing the high C in Verdi’s Il Trovatore and the audience erupted in boos, blaming the conductor for a failure of interpretation. Maestro Riccardo Muti defended his choice on the ground that the C does not appear in Verdi’s original score; however there is a long tradition of Italian tenors displaying their abilities by signing the high C, and audiences have come to expect it. In fact, one Italian music critic argued that even if Verdi had not written the high C, “it was a gift that the people had given to Verdi”– an assertion that sounds remarkably like democratic constitutionalism.
I haven’t read Jack’s piece (and don’t know what he would say about the matter), but this example brings to mind the often used example of later interpreters modifying an artist’s work in a way that appears to modern eyes or ears to be superior. This is sometimes used as a criticism of originalism on the grounds that modern circumstances or values justify departing from the artists – that is, the framers’ – work.
But I want to emphasize that this analogy between modern performers deciding whether to depart from the artist’s work is not an apt one for assessing originalism (and not primarily because of the differences between law and the arts). With respect to the American Constitution, the question is not whether we should stay with the old Constitution or have the Supreme Court modify it. The question is whether we should have the people modify it through the amendment process or have the Supreme Court modify it.
The right analogy in these situations is something like the following. Imagine that a donor has left a large amount of money to fund a foundation to promote certain causes. His will instructs that Foundation decisions should be made in accordance with certain specified procedures by board members who were chosen in certain specified ways. But over time, the President of the Foundation makes these decisions by exploiting the difficulty of having the Board meet. The Board, when it does meet, is critical of the President’s decisions and complains that she has not been true to the values that the donor and the board have sought to promote.
As this example makes clear, the President’s decisions cannot be justified as necessary to update the Foundation’s work to modern circumstances. Instead, it is to be condemned because she has usurped a decision that was not hers to make.
The problem with nonoriginalism is not that it replaces old values with modern values. It is instead that it uses 9 unelected judges to update the Constitution rather than having the people make the decision.