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Thursday, October 01, 2009

The U.S. Constitution: Not All that Well Written

Constitution_b_minus

I mean, it’s fine as a first draft, but if I were a law-firm associate, I wouldn’t turn it in to a senior partner without putting in a lot more work.

I am not a legal writing professor, and I suppose it’s a good thing I'm not. The fact is, if it were turned in to me as homework, I could not, in good conscience, give the United States Constitution better than a B-minus. And that’s with a healthy dose of grade inflation already factored in.

First of all, let’s look at the handwriting. It’s sloppy. You may not have known this, but the Constitution contains numerous interlineations.  In Article I, Section 3, explaining Senate procedure upon the impeachment of the president, there is this doozy:

The interlineation

The intended language is: “When the President of the United States is tried, the Chief Justice shall preside[.]”

The original uncorrected, verbless text is: “When the President of the United States the Chief Justice shall preside[.]”  

Precedent suggests that the Constitution may be invalid on grounds of sloppiness.

How can you screw up and write something like that unless you are totally mentally wandering while doing it? This is the Constitution of the United States of America for crying out loud. You’d think you could focus. And if you can’t get it right the first time, then I say grab another sheet of parchment and start from the top of the page. Where is the craftsmanship?

Look, I can only imagine what a pain in the a** it would be to write out a long legal document on calfskin with nothing but an inkwell and a pen made out of a feather. Honestly, I couldn’t do it. But then again, I didn’t take the job. According to historians, it was a fellow named Jacob Shallus who did take the job.

And, honestly speaking, he kind of phoned it in.

There are a total of four interlineations in the original Constitution.[1] What’s worse, Shallus did a “my bad” about the mistakes, listing them next to the signature block on the past page – but, incredibly, he only noted three of the four interlineations! How lazy do you have to be to fail to count up all the dents you tried to knock out of your own work?

Okay, so the Constitution’s penmanship is annoying. But is it a real problem? Precedent suggests that it is. Frighteningly, the federal district court for the District of Columbia, where the Constitution currently resides, has declared legal documents unenforceable on grounds of sloppiness.

In Antonelli v. Senate Realty Corp., the D.C. court lowered the boom on a slapdash deed of trust with more than a note of scorn: “Certainly this document on its face has been so altered by interlineation and hand-printed additions as to make it legally obnoxious and unacceptable.”[2]

Yikes. Could it be that our Constitution is “legally obnoxious”?

Under the eyes of the law, perhaps. There is no Supreme Court opinion directly on point, so, for now, it is an open question.

One thing we do know is that the Constitution was a rip off. The U.S. government paid Shallus the princely sum of $30 for his calligraphy services.[3] That may not seem like much, but this was 222 years ago. Using the unskilled-labor inflation index, $30 in 1787 is equivalent to $10,694 today.[4]

That kind of government waste makes a $640 toilet seat for the Pentagon seem like a bargain.

Shallus’s bang-up job also included erasures,[5] a misspelling,[6] and wildly inconsistent capitalization.[7]

Now, I haven’t even started to talk about the actual text.

The text of the U.S. Constitution is replete with ambiguity. And I say that not because the Constitution is a great document that is at the center of a great story about great struggles over great freedoms and other great stuff.[8] It is because, at least in large part, the Constitution is a maze of passive voice, mismatched grammatical constructions, and awkward phrasing.

Take a look at the Second Amendment:

 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

What in the heck is that supposed to mean?

Surprise, surprise: People disagree.

Analyzing the text, we can confidently make two observations: (1) If the amendment was intended to say that states have the right to give guns to their national guard units – and that’s the extent of the right – then the text clearly wouldn’t have been phrased the way that it was. (2) If the amendment was meant to give individual citizens the right to possess guns, without being part of a state-run militia, then the text clearly wouldn’t have been phrased the way that it was.

That leaves us with only one sure conclusion: The drafters shanked this one big time.

Incredibly, over thousands of pages of the United States Reports, our Supreme Court has not once used the words “poorly drafted” to describe the Constitution.

Yes, I checked.

We may need to revisit that hallowed quote of Ben Franklin, who, walking back from Independence Hall, was asked by a Philadelphia resident, a Mrs. Powel, what resulted from the Constitutional Convention.

Famously, Mrs. Powel heard Franklin say, “A republic, if you can keep it.”

It seems quite possible that Franklin’s actual words were, “A republic, if you can read it.”



[1] U.S. Const. art. I, § 2 (“the”); art. I, § 3 (“is tried,”); art. I, § 10 (“the” in two different places).

[2] Antonelli v. Senate Realty Corp., 230 F.Supp. 776, 779 (D.D.C. 1963).

[3] See Irvin Molotsky, N.Y. Times, September 17, 1987 at http://www.nytimes.com/1987/09/17/us/the-constitution-it-s-200-years-old-and-it-certainly-has-been-around.html.

[4] See Samuel H. Williamson, “Six Ways to Compute the Relative Value of a U.S. Dollar Amount, 1790 to Present,” MeasuringWorth (2009) at http://www.measuringworth.com/uscompare/.

[5] U.S. Const. art. I, § 2 (“thirty”); art. I, § 3 (“may make”).

[6] U.S. Const. art. I, § 10 (“it’s” in “except what may be absolutely necessary for executing it’s inspection Laws”).

[7] See, e.g., U.S. Const. art. I, § 2 (“vacancies” and “Vacancies”). See also art. I, § 8 (“credit” in “To borrow Money on the credit of the United States”) and art. IV, § 1 (“Credit” in “Full Faith and Credit”); art. I, § 2 (“Executive” in “the Executive Authority thereof shall issue Writs of Election”) and art. II, §1 (“executive” in “The executive Power shall be vested in a President”).

[8] Though it is, of course.

[Cross-posted on The Backbencher.]

Posted by Eric E. Johnson on October 1, 2009 at 02:15 PM in Constitutional thoughts | Permalink

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Comments

Not only that, but the founding fathers failed miserably at their objective: to establish a government that had built-in mechanisms to prevent government abuse of power. Um, how about citizen oversight? Without oversight nothing can be expected to adhere to anything. "Supreme law of the land" sure sounds powerful, but without enforcement, or contingencies em-placed, it cannot be expected to be more than that.

The fact that this did not occur to (or you would have included such) is evidence that you will not even understand what I am talking about.

carry on cattle.

Posted by: Michael Kitterman | Jul 27, 2018 1:50:57 AM

You guys do realize this post is a joke, right?

Posted by: Bruce Boyden | Oct 2, 2009 7:00:49 PM

Only a professor would try to assign a grade to the Constitution. Most of the rest of us focus on the meaning of the words within the document.

Posted by: Lawyer | Oct 2, 2009 6:07:37 PM

"Because the fashion of 18th century writing was to imitate classical Latin. That's just a fact, and it's why certain constructions in 18th century English seem weird to us now."

Interesting. So if I looked at James Madison's other writings for public consumption from around the time of his composing the Constitution (e.g. the 1785 Memorial and Remonstrance against Religious Assessments), they would all be uniformly imitating classical Latin? You're asserting it's "just a fact" that because something was the "fashion" in writing, it must apply to any written document, including the Constitution, that was written at that time. That's not how fashions, in writing or anything else, usually operate.

"The main verbs in Latin conjugate as a single word"

So how is it imitating classical Latin to have a sentence like "No State shall, without the Consent of Congress, lay any duty of Tonnage"? The verb "shall lay" has been divided by a phrase that very much *does* change the meaning of the sentence. Without that phrase, there would be an absolute prohibition on States' laying duties of Tonnage; with the phrase, States may do so with Congress's consent. If the writer were trying to imitate Latin, wouldn't the components of the verb be kept together so they would operate as much as possible like a single word? It certainly could be done while retaining the same meaning: No State shall lay any duty of Tonnage without the Consent of Congress.

Posted by: PG | Oct 2, 2009 4:25:53 PM

Andy, that's just sad.

Posted by: J.R. | Oct 2, 2009 3:23:05 PM

Fascinating post. What’s a Textualist to do when the text of the Constitution is flawed?

Posted by: Josh Blackman | Oct 2, 2009 10:45:46 AM

This is the funniest thing I've read in a while, although, to be fair, I spend most of my time reading the tax code and regulations.

Posted by: andy | Oct 1, 2009 9:27:00 PM

"But why would we assume that the English of the Constitution was imitating classical Latin? I haven't studied classical Latin in depth, but my understanding is that its verbs generally conjugate as a single word, such that a phrase like "shall lay," in Latin would be a single word, and inherently could not be bisected by a phrase."

Because the fashion of 18th century writing was to imitate classical Latin. That's just a fact, and it's why certain constructions in 18th century English seem weird to us now.

The main verbs in Latin conjugate as a single word, but the ablative absolute bisects the subject and its verb. Or sometimes not even that. Example:

"The horses galloping at full speed, Gaius won the chariot race."

The first clause is an aa. Note that it could be removed and the meaning of the sentence remain unchanged.

Posted by: Jason | Oct 1, 2009 7:54:02 PM

I don't vouch for it, but here's a link to a discussion of how to read 18th century British and American writing. Spelling (before dictionaries) was also wildly inconsistent.

http://dohistory.org/on_your_own/toolkit/writing.html

Posted by: Jeff Lipshaw | Oct 1, 2009 6:47:22 PM

"This is what is known as an ablative absolute. It was common in the English of the time insofar as it imitated classical Latin."

But why would we assume that the English of the Constitution was imitating classical Latin? I haven't studied classical Latin in depth, but my understanding is that its verbs generally conjugate as a single word, such that a phrase like "shall lay," in Latin would be a single word, and inherently could not be bisected by a phrase.

Yet Art. I., Sec.10 of the Constitution says, "No State shall, without the Consent of Congress, lay any duty of Tonnage..." Could you do that in classical Latin? If not, why assume that the writers of the Constitution were trying to imitate classical Latin?

Posted by: PG | Oct 1, 2009 6:43:46 PM

Cute, but the deeds of trust at issue in Antonelli went way beyond a few interlineations that were clearly made by the same person scribing the original; they had so many handwritten changes that it was impossible to tell whether a given alteration had been agreed to by the signatories, or if it had been mischievously added without their agreement.

Shallus's capitalization and punctuation may have been a mess, but surely you won't accuse him of altering the Constitution for his own benefit.

Posted by: PG | Oct 1, 2009 6:28:02 PM

I believe the "wildly inconsistent capitalization" was common in 18th Century writing, not a quirk of Mr. Shallus.

http://en.wikipedia.org/wiki/Capitalization#Parts_of_speech

Posted by: Orin Kerr | Oct 1, 2009 5:59:16 PM

The U.S. Constitution's weaknesses, expressed above, and its remarkable asset, its brevity, have the same source: it was written in long hand, without a typewriter, let alone a word processor. Early Congressional enactments were likewise brief, as were early court opinions.

These days, the only legal actors who routinely work in long hand in the court system are incarcerated individuals, who aren't well rewarded for the brevity. They almost always lose.

Posted by: ohwilleke | Oct 1, 2009 5:49:13 PM

Fascinating post! I checked my puzzle of the constitution that hangs on the wall of my office and indeed saw the interlineation you mentioned. (Wasn't sure how accurate the puzzle would be.) The capitalization always bugged me.

On a semi-serious note, I have no doubt the framers and the committee on style did not avoid "elegant variation," which is something courts use all the time as a way to say one term means something different than another.

Posted by: David S. Cohen | Oct 1, 2009 5:06:36 PM

"Incredibly, over thousands of pages of the United States Reports, our Supreme Court has not once used the words 'poorly drafted' to describe the Constitution.

Yes, I checked."

It would also be funny and interesting if the Framers/Ratifiers could communicate with us from Constitutional Heaven/Hell about the over thousands of pages of the United States Reports, whether any of SCOTUS' many decisions poorly interpreted the Constitution. Fortunately for SCOTUS, it alone has the final power of judicial review and only its members have the powers to discern original intent, meaning, understanding, expectation, etc, of the ever evolving originalism. How about a grade for SCOTUS?

Posted by: Shag from Brookline | Oct 1, 2009 5:02:33 PM

This is what is known as an ablative absolute. It was common in the English of the time insofar as it imitated classical Latin. The point of an ablative absolute is that it provides context or justification for the claim of the sentence, but it does not affect its meaning. Therefore, anyone who argues for 1 either ignorant of this grammatical construction, or pretends to be because they would rather 1 than 2.

Posted by: Jason | Oct 1, 2009 5:01:08 PM

Funny and interesting. I had no idea the Constitution was such a mess. If our courts have declared sloppy legal documents as unenforceable, and those courts were created by the Constitution, and those courts then use precedent to declare the Constitution unenforceable--then that means there is no enforceable document creating the courts in the first place. Which means they can't rule on the issue. Which means the Constitution is valid again. Quite a paradox, no?

Posted by: GJELblogger | Oct 1, 2009 3:21:21 PM

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