Music as speech

[Howard John Vogel]

In December of 1989, Leonard Bernstein flew to East Berlin to conduct
Beethoven's Ninth Symphony. The final movement is a choral movement with
soloists -- the well known "Ode to Joy."  The chorus and the soloists
frequently sing the word "freude" -- joy.  For the Dec 1989 performance
the singers in East Berlin, at Maestro Berstein's direction sang "Frehiet"
--freedom -- instead of "freude."  As I recall, Berstein said in an
interview that he thouight this was permissible poetic license on the part
of the performers given the context and occasion for the performance.

Three questions:  (1) Is Bernstein's reported comment a "legitimate"
mode of musical interpretation?

(2) Does Bernstein's approach suggest anything about the enduring question
of what counts for a "legitimate" legal argument OR does it simply
demonstarte that the interpretive task in music and law are like apples
and olives?

(3) (this question -- in the last sentence below -- needs a lengthy
introduction) What are we to make of the work of a translator of a
libretto who takes great liberties with a text in translation so that the
"translation" "fits" the music?  Is music like  the "spirit" of the law
which should control words?  Anyone who has sung a non-English text for a
Mass set to music (Mozart, Verdi, Brahms, e.g.) will perhaps have worked
with a score that has an English translation printed in under the original
libretto and will no doubt have been astonished as I have been at the
dramatic diversion between the texts.  I have alsways been called upon to
sing the original -- but I did so only after studying a good translation
of the the libretto to understand what was being conveyed in the words as
an aid to my reaching for a particular musical interpretation -- thus, in
a Christian Mass it is important for me to sing it "faithfully" to the
Christology of the text, if there is one, -- i.e. a high Christology is a
lot different than a low Christology, or even none at all, and can have a
huge impact on how one sings various passages.  All of this raises again
the question of whether we canm draw any parallelws between musical and
legal interpretation that could be helpful to us in performing either one.

I want to hold out for a robust place for metaphor in legal argument --
but I would appreciate some discussion on how the law and music in
comparison might speak to "getting at" what the constitutional term of art
"religious" and "religion" mean in the text Article VI and Amendment I,
respectively -- do they mean the same thing in the text -- do they mean
the same thing in our context as they did in the Framers context?  If
they should mean the same thing today as they did in the Framers context
-- how do we deal with the fact that our context may in no way reflect
that of the Framers?  Can we deal with any of these questions at all
without getting at a question which seems to be persistently avoided on
this list:  What is religion and what do we make of religious experience
reports by others in reaching a constitutinal definition of religion?
Absent a definition of "religion" and what is "religious" how can our
discussion of issues of government and religion be coherent?