University of Massachusetts Amherst ScholarWorks@UMass Amherst Doctoral Dissertations 1896 - February 2014 1-1-2006 Lyrics and the law : the constitution of law in music. Aaron R. S., Lorenz University of Massachusetts Amherst Follow this and additional works at: https://scholarworks.umass.edu/dissertations_1 Recommended Citation Lorenz, Aaron R. S.,, "Lyrics and the law : the constitution of law in music." (2006). Doctoral Dissertations 1896 - February 2014. 2399. https://scholarworks.umass.edu/dissertations_1/2399 This Open Access Dissertation is brought to you for free and open access by ScholarWorks@UMass Amherst. It has been accepted for inclusion in Doctoral Dissertations 1896 - February 2014 by an authorized administrator of ScholarWorks@UMass Amherst. For more information, please contact [email protected]. LYRICS AND THE LAW: THE CONSTITUTION OF LAW IN MUSIC A Dissertation Presented by AARON R.S. LORENZ Submitted to the Graduate School of the University of Massachusetts Amherst in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY February 2006 Department of Political Science © Copyright by Aaron R.S. Lorenz 2006 All Rights Reserved LYRICS AND THE LAW: THE CONSTITUTION OF LAW IN MUSIC A Dissertation Presented by AARON R.S. LORENZ Approved as to style and content by: Sheldon Goldman, Member DEDICATION To Martin and Malcolm, Bob and Peter. ACKNOWLEDGMENTS This project has been a culmination of many years of guidance and assistance by friends, family, and colleagues. I owe great thanks to many academics in both the Political Science and Legal Studies fields. Graduate students in Political Science have helped me develop a deeper understanding of public law and made valuable comments on various parts of this work. They include Farid Benavides, Laura Donaldson, Alec Ewald, and Laura Hatcher. Laura Hatcher, in particular, deserves a special thank you for her constant support of my work and continued friendship. Outside of UMass, Susan Burgess, Stephen Davis, Christine Harrington and Roger Steffens have provided invaluable comments on my work. Susan's comments in particular have been influential in my revisions. Christine has been a friend and mentor and reminded me that my scholarship is exciting and tangential. A special and unique thank you must be given to the members of the Legal Studies department. They have been advocates of my work and teaching since I first came to Massachusetts and their enthusiasm for scholarship is a testament to the field of education. Of course, my greatest debt is owed to my committee members. John Brigham, Sheldon Goldman, and Janet Rifkin have been the most supportive advisers a graduate student could ask for. John has been a mentor that every graduate student wishes to have. He has guided me on my work for countless v hours and I must thank him for his critiques, conversations, and friendship. My appreciation for John goes beyond viewing him as a scholar since his dedication and generosity are valuable for everyone in society. Shelly deserves a special thanks as he has reminded me over the years, on many occasions, that the field of public law can incorporate more than classic constitutional law. And Janet must be thanked profusely since it was her excitement for this topic that led to its own course and, subsequently, years of reflecting on this theme. My friends and family deserve attention here as well. With too many names to list, I simply want to thank my friends for always taking the time to listen to my arguments and see the strengths when there were very few to be found. My Aunt Susie, Uncle Ken, and cousin David, have been influential contributors to my growth. I thank them daily for reminding me how to be a scholar and an introspective human being. My sister Kelsie and her husband Rick, and even my niece Alexandra deserve special mention here. They have been undyingly supportive of my work and future job prospects. My parents deserve special thanks for their patience and love. While this process has been long and taken me away from family in southern California, their pride and love for me has been a cornerstone of my existence. Finally, I want to thank my consort, Jessica. Jess has been the most valuable addition to my life which has added to my academic happiness. I am certain that without her encouragement, I would not be at this stage of scholarship. But more importantly, without her love I would not be at this stage of life. My debt to Jess is immeasurable. vi ABSTRACT LYRICS AND THE LAW: THE CONSTITUTION OF LAW IN MUSIC FEBRUARY 2006 AARON R.S. LORENZ, B.A., CALIFORNIA STATE UNIVERSITY, CHICO M.A., SAN DIEGO STATE UNIVERSHY Ph.D., UNIVERSHY OF MASSACHUETTS AMHERST Directed by: Professor John Brigham This is a study of music as a form of jurisprudence. Political science scholars have focused on researching what they view as "political" music. Sociolegal scholars have done scant research from a theoretical perspective in looking at law having a musical rhythm. Rather than connecting the themes within the music to law, I begin with the perspective that the American law creates and maintains inequality. This premise allows for a dissection of the lyrics of various songs to be connected to each other through grand themes. I argue that various musical artists have created their own form of jurisprudence, often more about justice than present U.S. law. Once establishing what justice entails, and the shortcomings that exist within the system, I work through various themes such as race, gender, and class to demonstrate the comparisons between both political scientists and sociolegal scholars with the musicians. Classic legal theories are incorporated to understand the musicians use of judicial interpretation. vii Several methodologies are used in this research. Historical analysis establishes the foundation that is necessary to discuss slavery and the genesis of specific genres of music, namely reggae music from Jamaica. While reggae music may be a constant in the project, it is not the sole genre that will be studied. Content analysis of the lyrics, through the prism of the literature, will explain how and why the musicians shape legal discourse. In addition. Supreme Court case law will be studied, specifically relating to First and Fourth Amendment issues. Content analysis in the form of speeches and various interviews will be essential to understanding the goals and actions of the musicians and their impact on legal culture. The result will be an amalgamation of literature that equates musicians with scholars and demonstrates how musicians respond to law. viii TABLE OF CONTENTS Page ACKNOWLEDGMENTS ABSTRACT Chapter I. INTRODUCTION II. JURISPRUDENTIAL SCHOOLS OF THOUGHT: NATURAL LAW, LEGAL POSHIVISM, AND LEGAL REALISM 14 III. A CONSTITUTIVE THEORY OF JUSTICE: THE ANATOMY OF MUSIC FROM SLAVERY TO FREEDOM 45 IV. LIVING IN A DIAMOND CITY: CRITICAL RACE THEORY 72 V. CHANTING FOR RECOGNITION: FEMINIST LEGAL THEORY AND THE PERFORMANCE OF LAW 94 VI. CLASS MATTERS: GHETTO UNIVERSITY 123 VII. CONCLUSIONS 159 BIBLIOGRAPHY 170 IX CHAPTER I INTRODUCTION There's been times that I thought I wouldn't last for long But now I think I'm able to carry on It's been a long, long time coming But I know a change is gonna come Oh, yes it will. - Sam Cooke (1931 - 1964)1 In 1928, Supreme Court Justice Louis Brandeis dissented in Olmstead v. 2 United States. The majority upheld a conviction based on information obtained through the secret wiretapping of a bootlegging suspect. While Brandeis' dissent 7 expressed dissatisfaction with the Court s reasoning, which he thought violated 7 t he Fourth Amendment s guarantee against warrantless government searches, it was his criticism of the Court on more practical grounds that raised interesting issues. "If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy," Brandeis wrote.3 Since that dissent, scholars have looked for evidence supporting that claim. Many theorists have argued that when individuals experience injustice, they generally become more distrustful of the law. Politicians who argued to overturn Prohibition used that argument. Professor of Law Janice Nadler has conducted a study that confirms Brandeis' theory. Nadler found that college students who had been exposed to newspaper articles about unjust laws were 1 Sam Cooke, "A Change Is Gonna Come," Ain't That Good News (New York: RCA, 1964). ^ 277 U.S. 438 3 277 U.S. 438, 484 1 more likely than students in a control group to say that they would park in an illegal space, illegally copy software, or eat a small item in a grocery store 4 without paying for it . In addition, adults who read a story about an injustice and were then asked to serve on a mock jury were more likely to practice jury nullification. 7 Nadler s research reminds us how law is constituted and takes us back to Brandeis' dissent. My research is not quantitative like Nadler's nor is it doctrinal like Brandeis' words. Rather, I use cases and studies to demonstrate the impact that musicians have in constituting law through their lyrics. Nadler's study is interesting because it notes the impact that newspaper articles can have upon constituting an image of law for the people. However, music reaches far more people than newspapers so one can conclude that its impact is far more reaching. When musicians remind the listener of the injustices in society, call for social change, or give their interpretation of legal theory, an image of law is constituted and that image often becomes the Law. When musicians create music, they are simultaneously creating law. Their experiences, language, and motives encompass their being and develop an image of law, which the listener subsequently adopts.