The cadenza in music is a solo flourish by a performer which is sometimes simply notated as such on the page by the composer — as a moment for loose impromptu brilliance. And in his exceptional piece, “Constitutional Cadenzas,” Dan Farber argued that there are sections of the Constitution which contain cadenzas — “instructions for the interpreter to improvise on the Constitution’s grand themes.” Professor Farber focused on the Ninth Amendment and the Fourteenth Amendment’s Privileges or Immunities Clause as such sections. “[B]oth of these constitutional provisions,” he wrote, “call for the protection of unenumerated fundamental rights, leaving the specification and evolution of those rights to further elaboration.” Though Farber accepted that certain sources might be useful for the constitutional virtuoso to draw upon in his act of improvisation — specifically, “transnational legal sources” and “contemporary social consensus” — the constitutional cadenza is ultimately not dependent on these sources but on the high Romantic idea of the artist as interpretive genius. The performer of the cadenza may know something about previous performers — he may perhaps take notice of past interpretations — but his performance ultimately is judged by the elegance and beauty of his own interpretation alone; indeed, often any accompaniment or orchestra will stop and the cadenza will be played solo.
I have a different musical metaphor in mind — the appoggiatura. The appoggiatura is an ornament on a core theme; it is a quick grace note usually extremely close in distance to (generally just a half note above or below) the essential melody. In Italian, ‘un appoggio’ is a support or something to lean on in a moment of weakness or indecision. Like the cadenza, the appoggiatura is an embellishment — it allows the performer some leeway in interpretation, some discretion about how long to hold the appoggiatura, for example. But unlike the cadenza, the appoggiatura is not a license for the performer to improvise at will. The appoggiatura cannot stray very far at all from the melody — it is greatly limited in both distance and time, and it depends heavily on what came before and what comes immediately after. It leans on the theme, and relies on it for support, but what comes from that dependence is something (modestly, constrainedly, but with time increasingly) new.
What might be a constitutional appoggiatura? There are many possibilities, but the one I want to explore is an application to the idea of “departmentalism” in constitutional interpretation. Departmentalism is the idea that none of the three branches is either the exclusive or the supreme interpreter of the Constitution. Each has an interpretive role to play. Madison put it this way in Federalist 49: