Law, Music, and Other Performing Arts

The eminent pianist and writer Charles Rosen has noted that [t]here is an irritating or piquant wrong note in the [score of the] first movement of Beethoven\u27s first piano concerto, a high F-natural where the melody obviously calls for an F-sharp. What accounts for an obvious error by this giant of classical music? The answer, says Rosen, lies in the developmental state of the piano when Beethoven composed the concerto: the piano keyboard stopped at F-natural, which therefore established the limit of what was physically possible for a performer to play. To be sure, Beethoven might have written aspirationally and composed what, though impossible under current conditions, could nonetheless be aspired to under some future imagined state. Thus Rosen writes of a piano sonata in which Beethoven asks for a successive crescendo and diminuendo on a single sustained note, even though the instrument that can realize this has not yet been invented. But at least this suggests that Beethoven was capable of envisioning the possibility of radical transformation regarding piano design and wanted to signify an intention should those possibilities ever be realized. What, then, does the performer do with the F-natural, where Beethoven appears instead to have acquiesced to the limits of the instrument

Thirteen Ways of Looking at \u3cem\u3eDred Scott\u3c/em\u3e

Dred Scott v. Sandford is a classic case that is relevant to almost every important question of contemporary constitutional theory. Dred Scott connected race to social status, to citizenship, and to being a part of the American people. One hundred fifty years later these connections still haunt us; and the twin questions of who is truly American and who America belongs to still roil our national debates. Dred Scott is a case about threats to national security and whether the Constitution is a suicide pact. It concerns whether the Constitution follows the flag and whether constitutional rights obtain in federally held lands overseas. And it asks whether, as Chief Justice Taney famously said of blacks, there are indeed some people who have no rights we Americans are bound to respect. Dred Scott remains the most salient example in debates over the legitimacy of substantive due process. It subverts our intuitions about the relative merits of originalism and living constitutionalism. It symbolizes the problem of constitutional evil and the question whether responsibility for great injustices lies in the Constitution itself or in the judges who apply it. Finally, Dred Scott encapsulates the central problems of judicial review in a constitutional democracy. On the one hand, Dred Scott raises perennial questions about the judicial role in cases of profound moral and political disagreement, and about judicial responsibility for the backlash and political upheaval that may result from judicial review. On the other hand, the political context of the Dred Scott decision suggests that the Supreme Court rarely strays far from the wishes of the dominant national political coalition. It raises the unsettling possibility that, given larger social and political forces, what courts do in highly contested cases is far less important than we imagine

The Bad Man, the Good, and the Self-Reliant

When we think of the many famous ideas associated with Justice Oliver Wendell Holmes—and with The Path of the Law in particular—one of the first that comes to mind is his famous image of the bad man. Although this metaphor has been one of Holmes\u27s most lasting legacies, it has also been one of his most troubling as well, for it suggests that the deepest truths about the law can be found by adopting the perspective of someone who is bad. It is one thing to say that wisdom comes from the mouths of babes or even from fools; it is quite another to say that we should look to the worst among us for insight

What Are the Facts of Marbury V. Madison?

One of the most familiar features of the first year class in constitutional law, or indeed, in any first year subject, is the ritual practice of asking young law students to state the facts of cases. Not surprisingly, one of the first cases that students often encounter in their study of constitutional law is Marbury v. Madison, and so it is no surprise that Marbury is one of the first situations in which law students are asked to state the facts of the case

Constitutional Dictatorship: Its Dangers and Its Design

If Americans know one thing about their system of government, it is that they live in a democracy and that other, less fortunate people, live in dictatorships. Dictatorships are what democracies are not, the very opposite of representative government under a constitution

Democracy and Dysfunction: An Exchange

It is obviously no longer controversial that the American political system, especially at the national level, is seriously dysfunctional. Consider, for example, what are nearly the opening words-after noting that the United States Capitol is currently enfolded by scaffolding for repair of the physical building-of the distinguished Columbia political scientist and historian Ira Katznelson\u27s recent contribution to a Boston Review forum on Anxieties of Democracy. Even if [r]estoration is underway, its conclusion in sight, repair of the institutions inside the Capitol seems a long way off, if it is even possible