Heritage Foundation legal scholar GianCarlo Canaparo argues at the Federalist Society’s blog that the orchestral technique known as “Historically Informed Performance” (HIP) offers a helpful guide in interpreting the Constitution. And anyone who has attended an HIP performance, as I have, can attest that it’s an interesting and rewarding way to experience a piece of music. But as far as a defense of Originalism goes, I think this attempted analogy falls short; in fact, I think it actually helps us see some of the problems with Originalism.
In reality, much of what we take for granted in the world of music is not “original” at all. In legal parlance, it’s “underdetermined.” Handel’s Water Music, for example: we don’t actually know in what order the pieces are supposed to be played. That’s obviously a pretty important consideration when performing a piece of music. Although a general consensus has emerged, there is still no canonical rule about whether one section comes before another. What is an “originalist” about the Water Music supposed to do?
More to Canaparo’s point, consider the ways in which subsequent embellishments have created the canonical forms of pieces of music. To borrow another Handel example, the orchestration of the Messiah with which we are most familiar is not at all original to Handel. In fact, the earliest records we have regarding the orchestration of Messiah date to 1754, a decade after the premiere. Do these count as the “original meaning” of the Messiah? If so, it’s pretty flat: it was orchestrated for “two trumpets, timpani, two oboes, two violins, viola and basso continuo.” After that, conductors adapted the Messiah to the orchestrations and chorus sizes they considered best—within just a few years, different performances were being done with enormous orchestras. So what is the correct, definitive, authoritative, orchestration?
Asking the question that way makes explicit the implicit assumption that George Friedrich Handel’s beliefs are authoritative about how the Messiah should be performed. But that is precisely the premise that needs to be established here, and in fact I deny it. I submit that Handel was not authoritative with respect to the “right” size of the orchestra performing the Messiah (and, although this is, strictly speaking, irrelevant, he did not believe himself to be).
Canaparo is certainly right in his implication that if we stray too far from the score of the Messiah, we are no longer performing the Messiah. Obviously the Max Richter “recomposition” of Vivaldi’s Four Seasons, for example, is not Vivaldi’s Four Seasons. (That is not, however, because Vivaldi would have believed this; it’s because in fact it is not the same thing.) But we should also not fall into the Platonic trap of thinking there is some ideal form of the Messiah of which every actual performance is but an imperfect copy. Rather, the Messiah is a musical score, and what we produce when we play it—even if we alter it in slight ways—is still the Messiah, and may in fact be a better Messiah with the alterations that have accumulated over time than without them.
That explains why anyone who attended a performance at which the audience did not stand during the “Halleluiah Chorus” would say that he had attended an impoverished version of the Messiah—regardless of the fact that standing during the chorus is a tradition never referenced in Handel’s score. And it is beyond question that anyone who showed up to a performance of Messiah and found on stage only two trumpets, timpani, two oboes, two violins, and basso continuo would demand his money back. (And rightly so!)
Canaparo writes that if you perform (e.g.) a piece composed for the harpsichord on a piano instead, it “ceases to be the [same] piece of music.” But I don’t think that’s true, and, perhaps revealingly, the law doesn’t think that’s true, either. If I were to perform a copyrighted song with a different instrument, I could not escape liability for infringement by arguing that what I’m playing had ceased to be the same piece of music. Composers, of course, certainly don’t think that changing the instrumentation results in music that “ceases to be the [same] piece of music”; many composers for orchestra put together their compositions on a piano, first, before handing their work over to an orchestrator, who figures out which part of the orchestra should play which part. The reverse is also true: composers make transcriptions of orchestral pieces for piano or other instruments, and certainly regard these as the same piece of music. Rachmaninov’s piano transcription of Tchaikovsky’s Sleeping Beauty is certainly still Sleeping Beauty. (That’s just what annoyed Tchaikovsky about it!)
Which is the ”truer” form? Which one is the real piece of music? Once again, asking this question uncovers the implicit assumption of Canaparo’s argument: that there’s an Authoritative Meaning Giver (the composer) whose personal conceptions can tell us what the true piece of music really is. This is a habitual assumption in our age, when we’re used to a recording being the authoritative work. But it was certainly never an assumption in Handel’s or Tchaikovsky’s days, and it’s not a very good one.* In fact, if we really took this proposition seriously, we would have to conclude that there is no such thing as Messiah today at all, because the only true Messiah is the one Handel himself plunked out on his particular harpsicord. If Handel was the Authoritative Meaning Giver, whose views about the Messiah’s content were definitive, then the only content he could possibly have given was to a particular performance at a particular time, and that, in turn, means that no Messiah not specifically made by him can be the Messiah, and that since his death there has never been any true Messiah. Conversely, it means that every single performance of Messiah is its own specific thing, good for that performance only, and not subsumable under any general concept of “Handel’s Messiah.”
It’s not that music (or law) has no fixed identity, or that the Messiah (or law) is “living” in the Progressive sense, or that you can perform a bunch of random sounds and claim you’re playing the Messiah. Rather, there are two points to keep in mind:
First, if we take objectivity seriously—and thus actually hold that a work of music has an identity—then it necessarily follows that the composer is also not authoritative about its identity. What I mean is, that even if Handel were to arrive here and now in a time machine and tell us that actually, he had intended all along for “The Trumpet Shall Sound” to be performed on a piece of dry pasta (perhaps as an homage to his friend P.D.Q. Bach), we would say that in fact he is wrong about the orchestration of that piece. Whatever the qualities are that go into making the identity of “The Trumpet Shall Sound,” they are just as much independent of the personal opinions of G.W.F. Handel as they are of the personal opinions of you and me, or of an entire concert hall full of listeners. In reality, that aria is not performed on a piece of pasta.
Second, since a musical composition has an identity, and the composer is not the Authoritative Meaning Giver who vests it with its identity, we must confront the possibility that a piece of music can come to be something over time that it was not when it first appeared. I submit that the big-orchestra, big-chorus Messiah with which we are familiar, and the tradition of standing during “Halleluiah,” are now every bit as indispensable to the Messiah’s identity as, say, the balcony scene in Romeo and Juliet…and, of course, the text of Romeo and Juliet contains no reference to a balcony, either!
I am reminded here of one of my favorite passages from Lon Fuller, describing the metaphysical status of law:
If I attempt to retell a funny story which I have heard, the story as I tell it will be the product of two forces: (1) the story as I heard it, the story as it is at the time of its first telling; (2) my conception of the point of the story, in other words, my notion of the story as it ought to be. As I retell the story, I make no attempt to estimate exactly the pressure of these two forces, though it is clear that their respective influences may vary.... [They] supplement one another in shaping the story as I tell it. It is a product of the is and the ought working together.... In a sense, then, the thing we call "the story" is not something that is, but something that becomes; it is not a hard chunk of reality, but a fluid process, which is as much directed by men's creative impulses, by their conception of the story as it ought to be, as it is by the original event which unlocked those creative impulses. The ought here is just as real, as a part of human experience, as the is, and the line between the two melts away in the common stream of telling and retelling into which they both flow. Exactly the same thing may be said of a statute or a [legal] decision.
The Law in Quest of Itself 8-9 (1940).
Bottom line: what Handel thought of the Messiah is interesting, important, and instructive. But he was not the source of the Messiah’s meaning, and neither was his audience at that premiere in 1742. An HIP performance may be beautiful and interesting, but it is not a “truer” form of the Messiah than is the rich, lush, Victorian-era orchestration with which we are now familiar.
I hope to have much more to say about Originalism in the coming months, but if you want a preview, you can check it out here.
*-Our intuitions here can be thrown off by overlooking the difference between a recording and a song. Recordings, such as we're familiar with, have a canonical version: the recorded version of that performer. This is not the case with Messiah.
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