Conducting the Constitution: Justice Scalia, Textualism, and the Eroica Symphony

This article examines the three principle Constitutional interpretative approaches and compares them to similar interpretative doctrines used by musicians. In particular, it examines the theoretical underpinnings of Justice Scalia's "textualist" philosophy by trying to predict what results would obtain from application of that philosophy to a performance of the first movement of Beethoven's "Eroica" symphony. The article does not declare the foundation of a new genre of legal hermeneutics, nor does it seek to announce a comprehensive interpretative framework that can solve problems of Constitutional or statutory interpretation. Rather, the article explores some fundamental principles of legal textual interpretation while, at the same time, avoiding the aggressive rhetoric and contentious social issues that can obscure the debate over textualism, the viability of a "Living Constitution" and the use of extra-textual information to aid in determining textual meaning.