"The moon passes through different phases--shows us a different face every night--but it's always the same moon" : Bob Dylan, Leonard Cohen, Samuel Alito, Roe v. Wade, and Neil Diamond

Ok, bear with me. It will take a little time to get to the point and bring the title characters together. Justice Alito's leaked draft opinion got me thinking about originalism which got me thinking about hermeneutics which got me thinking about Leonard Cohen and Bob Dylan and Neil Diamond. (It didn't hurt that I own the Essential Leonard Cohen and 10 New Songs.) No matter when he recorded,  Leonard Cohen sounded a lot like Leonard Cohen 50 years ago. He always had a tight lyrical structure, he wrote about love and sex and loss ,and his vocal range was always about 3 notes wide. Some might say that if you have heard one Cohen song, you have heard them all. But that is not true. Cohen used the same themes but expanded and refined them in new circumstances.

 Pico Iyer captured this sense of Cohen on the liner notes to The Essential Leonard Cohen

"[W]ith Cohen, one feels that he knew who he was and where he was going from the beginning, and only digs deeper, deeper.... The moon passes through different phases--shows us a different face every night--but it's always the same moon."

Contrast that with Dylan who changes structure, subject, and musical style at the drop of his (sometimes literal) hat. Dylan puts on these changes like disguises. He mixes together all his influences, current and past, to come up with the "new and improved" Dylan. He grows organically, changing the words and music to fit his mood or the country's mood or just because he's tired of being this year's Bob Dylan. And he doesn't mind making things up as he goes along. He is notorious for speaking jibberish during interviews. New moon, different solar systems. 

Neil Diamond. This will be quick. Same song, same words, same inflection, same meaning now and forever. Same moon, same aspects (preserved forever in crystal clear audio and yours for the low price of ...)

Here's the legal connection. Cohen is like the second John Harlan (and Anthony Kennedy): the Constitution's fundamental principles never change but their meaning cannot be plumbed once and for all. Each new situation will show a different aspect of the fundamental principles. (e.g. ,We can only say what Liberty means in the context of each case as we explore its deeper and deeper meanings. And meaning takes into account our national experience.) Same moon, different faces.

Dylan is more like William Brennan: the Constitution is an organic document that changes in each era. (i.e., we have to adapt the Constitution to the modern world)

Alito's leaked draft opinion makes this point: the Constitution never changes, period. (e.g., Unless the framers envisioned allowing abortions, the constitution has nothing to say.) That doesn't sound like Dylan or Cohen: It sounds more like Neil Diamond - same song, same words, same inflection, same meaning now and forever. (preserved forever in crystal clear audio and yours for the low price of ...) 

But as Leonard Cohen said in Alexandra Leaving, "Do not stoop to strategies like this... Do not choose a coward's explanation that hides behind the cause and the effect." We don't need Neil Diamonds on the Supreme Court singing "Sweet Caroline" for the next 30, 40, 50 years and we don't need Bob Dylans  making up the lyrics to "Maggie's Farm" on the fly. We need Leonard Cohens, who look unflinchingly and repeatedly at the same subject, exploring its different aspects, who bring their and our nation's experience to bear on the legal issues confronting the court and never sparing us from the necessary truths. We need Justices who, like Leonard Cohen see that "The moon passes through different phases--shows us a different face every night--but it's always the same moon."