Jazz and Law and Love

I was privileged this past weekend to be in New York for the Essentially Ellington Festival at Lincoln Center. This remarkable annual event caps the tireless jazz education efforts of the irrepressible Wynton Marsalis. Selected jazz bands from 15 US and Canadian high schools train under mentors and clinicians and then assemble for a two-day competition judged by Marsalis and three other jazz luminaries.

I am not so devoid of local pride to avoid boasting that 3 of the top 4 finishers hailed from Seattle, nor that my son played guitar for the Garfield High School jazz band, which finished second in the competition, nor that the award for outstanding piano performance went to the prodigiously gifted son of one of my co-workers at Knowledge Mosaic. However, one cannot avoid experiencing an event this rich on many different levels, and the level that concerns me in this post concerns analogies between jazz and law.

Wynton Marsalis is the self-appointed guardian of the "classical" jazz legacy associated with Swing, Big Bands, Louis Armstrong, and Duke Ellington. A highly accomplished classical musician, Marsalis applies similar principles of formal artistry and adherence to a traditional "canon" in the world of jazz. And this is where things get interesting. I am no student of jazz, but I do know a thing or two about the "canon" wars in the academic world (as in what's up with all of these books by dead white men).

I also have given more than passing thought to the place of canonical thinking in the legal world. Theorists of Originalism cross swords with both Common Law conservatism (shading into Living Constitution advocacy), and Legal Realism (particularly as it has shaded in recent years into the Critical Legal Studies movement). In the background lurk adherents of the influential, yet self-marginalized, Law and Economics movement.

While these intellectual battles are largely confined to the academy - particularly in quarrels between the University of Chicago and Harvard - and hence retain a certain parochial quaintness, there is also no doubt that these positions on the meaning and interpretation of the law spill into the court system and the nation's regulatory bodies and hence demand more than idle or theoretical attention from us.

The parallels between the canon wars in jazz and arguments about precedent, tradition, and the law are striking. While one can hardly label Wynton a political conservative or a racially blind or racially neutered musician (at the Ellington Festival, he teased one of the small number of African-American students in attendance about his "Halfro"), his efforts to preserve the jazz forms and traditions in a somewhat unmodified "classical" mode have earned him the reputation in some influential music circles of being a reactionary and even a betrayer of his race not unlike Clarence Thomas (or, in jazz/cultural criticism circles, Stanley Crouch).

Here, for example, is the brilliant pianist Keith Jarrett: "Wynton imitates other people's styles too well. You can't learn to imitate everyone else without a real deficit. I've never heard anything Wynton played sound like it meant anything at all. Wynton has no voice and no presence. His music sounds like a talented high-school trumpet player to me. He plays things really, really, really badly that you cannot screw up unless you are a bad player. I've felt embarrassed listening to him, and I'm white. Behind his humble speech, there is an incredible arrogance. And for a great black player who talks about the blues - I've never heard Wynton play the blues convincingly, and I'd challenge him to a blues standoff any time. He's jazzy the same way someone who drives a BMW is sporty."

Keith Jarrett can have it both ways, of course, given his talent, and a range that carries him from the free-form moaning of The Koln Concert to, more recently, the unspeakably beautiful (and formal) melodics of Shenandoah. No matter what authority his chops confer upon him, Jarret's bile - and his playing of the race card - is jarring. But this is how the world works in any artistic medium. Standards and tastes evolve. Artistic expression is an enunciation of freedom. Confinement within forms and traditions and technical routines stifles.

The debates about "truth" and "beauty" in art grip the soul, and often lead to battles and hatreds that are decidedly "unlovely" and "unartistic." And so let us consider the Law as Art, pulled between various poles of thought. The Originalist fundamentalists apply a literal standard of interpretation to the meaning of the Constitution, no matter how anachronistic the original texts may be in the 21st century. They appeal to the Constitution as an original standard of authority, as the foundation of our being as a nation, as the starting point and a framework for any debate of significant judicial import.

I am loathe personally to associate Antonin Scalia and Clarence Thomas with Wynton Marsalis, and there is the clear distinction in their approaches between rigid, ideological fundamentalism, on the one hand, and an artistic certitude that is primarily formal and aesthetic, on the other. In other words, I am loathe to attribute artistic meaning to the Constitutional opinions and interpretations of Scalia and Thomas, whose politics I despise and whose intellectual honesty I question.

And yet, there is clearly a sense in which - if one generously takes them at their word - the Originalists seek meaning from foundation texts because these texts contain a spiritual, sanctified significance for the political and philosophical "specialness" of the United States. In other words, the Constitution, the Federalist Papers, the letters of the founders to each other, as well as the early opinions of the Marshall Court - all of these embody authority, as in authorship. They give us identity. They give us voice. Without them, we would lose our way. And so we must always keep them in our mind's eye. They are our touchstone, our compass, our destination and our destiny. Without these documents, and the meanings they contain, there is literally no United States of America.

In a similar way, Wynton Marsalis cannot see American jazz without its crystallization in the works, techniques, and styles of Louis Armstrong, Duke Ellington, and Benny Carter. Jazz is a tradition with deep roots in African-American musical rhythms. However, it would obviously be a mistake to ignore the influence upon it of classical forms and styles inherited from European Baroque and Romantic traditions, as well. And this is what Marsalis appreciates. Even with its nod to soloists and its reliance upon a rhythmic backbone, the Big Band sound clearly embraces a structured, neo-symphonic musical architecture that extends across the Atlantic to European classical music traditions.

This mirrors in many ways the debt to European constitutional theorists such as Locke and Montesquieu that Originalists in law will freely acknowledge. From one perspective, these traditionalist approaches are clearly reactionary in their suspicion to change that in any way threatens to break the thread of continuity to the past. And artistic innovation, in both law and music, cannot exist without pulling at that thread. Creativity demands thread-pulling! Building a future often demands the sacrifice of the past.

Reading the early works of Roberto Unger - with interpretations of legal textual "standards" and a new legal "fusion" that would be largely unrecognizable to any traditionalist - makes it clear that legal experimentation (judicial activism!) can be a witch's brew. In the same way, jazz faces challenges from new forms - rap comes to mind - that speak to a younger generation without seeming to offer coherence via any solidarity with or debt of gratitude to the musical past. Upon the shoulders of what giants do rap musicians stand?

And yet, like Roberto Unger, rap is clearly incredibly synthetic and creative, with a rhythmic commitment that fully acknowledges African origins while extending its reach to create a pastiche of sounds drawn from across the full spectrum of classical, blues, jazz, and popular American music. So I would argue that "new" or radical forms - even as they flay the fathers - are indebted to the fathers.

From one perspective, the jazz classicism of Wynton Marsalis is in trouble. Applications to the Ellington competition have fallen by more than half from recent high points. The musical traditionalists in jazz are aging - Marsalis's own Jazz at Lincoln Center Orchestra is, for the most part, not populated by young men (and it has no women).

While the tendencies of the Supreme Court and the political appointments to the bench and to the regulatory agencies of Republican presidents may suggest otherwise, Constitutional Originalism may also be in trouble. Conservatives often now favor a Law and Economics approach that is technical and empirical and pays no debt to tradition. In fact, viewing itself as (or at least aspiring to be) a science, the Law and Economics movement falls entirely outside any artistic and historic perspective on American constitutional law.

For Wynton and the legal Originalists, the jazz and legal "traditions" possess an almost fugue-like status. The Music and the Law are harmonic and dependent upon a succession of imitative derivative variations on a foundation theme. For this reason, Wynton may not fully view as insulting the claim that his music is imitative and not original.

At Ellington, Wynton spoke - Lion-King like - about the circle of life, the circle of love. The commitment to a foundation event, and founding heroes - in jazz and in constitutional law - animates our world with sounds and poetry and rhythms that carry us through life and connect us to others. The connection is love that transcends personal ties and is essentially cultural. It is a bond of togetherness that comes from what is unspoken yet sacred in our identity. 

n the end, Wynton would say, classical jazz is the container for our musical identity as a nation, just as, for the legal Originalists, the Constitution is the container for our legal identity as a nation. The connections these containers create between us - the love that spills forth from that recognition - confer sacred meaning upon both American Jazz and American Law.