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

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 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[.]”  

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.”

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[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 PrawfsBlawg.]