Brown, consolidated

Next time you're with a group of reasonably intelligent people--friends, family, co-workers--you might want to ask them who the attorney was for the Brown family of Topeka in the famous school segregation case. I'll bet somebody says it was Thurgood Marshall.

Now take a look at the heading of the U.S. District Court's opinion in Brown v. Board of Education, 98 F. Supp. 797 (Kan. 1951); this was nearly three full years before the Supreme Court issued its ruling on the appeal:

http://brownvboard.org/research/opinions/brownfsp.htm

Notice a name missing from the list of counsel for the plaintiffs (the Browns) that you thought might be there?

Actually, Marshall was not the attorney for the Browns, whose primary NAACP counsel was Robert Carter. Marshall worked chiefly as counsel for the plaintiffs in Briggs v. Elliott, 98 F. Supp. 529 (E.D.S.C. 1951), a similar school segregation case from South Carolina (see Kluger, Simple Justice, 2004, p. 397 and Rowan, Dream Makers, Dream Breakers: the World of Justice Thurgood Marshall, 1993, p. 190. Marshall is better remembered because, as Rowan notes, he was the "cleanup man" in oral argument when Brown, Briggs, and three other cases came before the Supreme Court. Of course, Thurgood Marshall also became a household name because he went on to serve on the Supreme Court himself.

I thought about misconceptions involving Brown v. Board of Education when I looked at the website of the Brown Foundation, which I've linked above. This organization describes itself on its home page in this fashion: "The Brown Foundation for Educational Equity, Excellence and Research was established in 1988 as a living tribute to the attorneys and plaintiffs in the landmark U.S. Supreme Court decision of 1954 Brown v. Board of Education." Their site has some good resources on the case--but also one glaring error that I'm surprised to see. Here is their page on "myths and truths" about Brown:

http://brownvboard.org/mythsandtruths/

And here is the error:

Myth:
The U.S. Supreme Court decision in Brown v. Board of Education was based on the Topeka case.
Truth:
The Supreme Court combined five cases under the heading of Brown v. Board of Education from Delaware, Kansas, South Carolina, Virginia, and the District of Columbia. Those individual cases were: Belton v. Gebhardt (Bulah v. Gebhardt) (Deleware) Brown v. Board of Education (Kansas) Briggs v. Elliott (South Carolina) Davis v. Prince Edwards County School Board (Virginia) Bolling v. Sharpe (District of Columbia)

"Delaware" is misspelled once, but that's not the mistake I'm talking about. Take a look at the very first sentence of the unanimous opinion delivered by Chief Justice Earl Warren in the case:

"These cases come to us from the States of Kansas, South Carolina, Virginia, and Delaware." 347 U.S. 483, 486 (1954).

Again, is something missing? Right, that's only four cases "combined under the heading" of the Brown opinion. The fifth case, Bolling v. Sharpe, was not combined with the others; it has its own opinion immediately following Brown in the U.S. Reports (347 U.S. 497).

Why the separation? Because Bolling involved school segregation in the District of Columbia. That meant that its holding could not be based on the Equal Protection clause of the Fourteenth Amendment, as this applies only to the states. Schools in Washington, D.C. were maintained by the federal government, so to reach the same result as it did in Brown, the Supreme Court had to write a separate opinion basing its decision on the Due Process clause of the Fifth Amendment, a Constitutional provision which does apply to the federal government. (This is discussed in brief in Bernard Schwartz's A History of the Supreme Court, 1993, pp. 300-301.)

The National Park Service, on its website for the Brown v. Board of Education National Historic Site, repeats this error, which isn't surprising since they acknowledge that they obtained the information from the Brown Foundation:

http://www.nps.gov/brvb/historyculture/mythtruth.htm

Well, at least they spelled Delaware correctly. But this stands to me as another shining example of why one must be careful with information obtained on the Internet--as well as a demonstration of why I try here to cite my sources. Intuitively, one would think a foundation named after the Brown case and the park service administering a historic site commemorating the case would present the information correctly and tell you that there were five school segregation cases, that four were lumped together, and that the other one had a separate opinion. Instead, they expressly say all five cases were "combined... under the heading of Brown v. Board of Education ."

That's simply not correct.

Update, 29 March 2008:

wikipedia phrases the matter differently:

http://en.wikipedia.org/wiki/Brown_v_board_of_ed

"The case of Brown v. Board of Education as heard before the Supreme Court combined five cases: Brown itself, Briggs v. Elliott (filed in South Carolina), Davis v. County School Board of Prince Edward County (filed in Virginia), Gebhart v. Belton (filed in Delaware), and Bolling v. Sharpe (filed in Washington D.C.)."

That's a bit more plausible as it is worded such that the verb "combined" is paired with "heard before the Supreme Court," and indeed all five cases were considered in one set of oral arguments. But the sources I cited earlier declare that all five cases were combined under one heading which sounds as though there was only one written opinion, which again, is not true.

Uh... yes, Chuck, twenty-seven words COULD be clearer...

If you want to know the state of right-wing thought, the website to visit is townhall.com. On their pages are gathered columns written by conservatives. Lots of them. I prefer precise numbers to just writing generalities, so I logged onto their main columnist page to count the pundits. I stopped my tally at seventy-five, so I'll stick with "lots of them."

That's a lot more than I can read. Plus, in any given week half of them will write about the same thing--and how many columns on Barack Obama's preacher did we need last week? So usually I just read Ann Coulter and Brent Bozell. They're more interesting than most of the other columnists, and I figure it's good to read at least one right-winger who is REALLY far right as long as she's also funny (Coulter) and one who is more of a mainstream voice. (To be fair, Bozell at times can be a little bit out there too. He once wrote a column decrying the flatulence humor on the cartoon "The Grim Adventures of Billy and Mandy." Bozell and I are of the same generation; my attitude is if he and I could grow up to lead normal lives watching Bugs Bunny drop an anvil on Yosemite Sam, surely today's kids aren't at risk simply because it's a rare moment on Nickelodeon when someone isn't farting.)

But when I checked out townhall.com today, I got a bit of a surprise: Chuck Norris is now a columnist there. Of course, I had to click on his name to see if his voice was adding anything new or interesting to the discussion.

My conclusion? Basically, Norris is adding something bizarre to the discussion. In this column, he ruminates on several subjects, notably the Second Amendment case of D.C. v. Heller which should be ruled on this spring:

http://www.townhall.com/columnists/ChuckNorris/2008/03/25/guns,_god_and_gays

Here's the bizarre part in my view:

"First, there was the Supreme Court's wrangling with the Second Amendment. Should it allow private citizens or only public servants ('state militias') 'to keep and bear Arms'?
Is someone joking? Could 27 words be any clearer?! '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.'"

So what Mr. Norris is asserting here is that the Second Amendment's meaning is crystal clear.

Now let's see what scholars who have written books and law review articles on the Constituion have said:

"The very wording of the Second Amendment provides fuel for the controversy." -- John R. Vile, A Companion to the United States Constitution and its Amendments, 2nd ed., 1997, p. 143.

"This simple sentence (the Second Amendment) has perplexed most modern readers. How do the two main clauses with different subject-nouns fit together?" -- Akhil Reed Amar, America's Constitution: A Biography, 2005, p. 322.

"No one has ever described the Constitution as a marvel of clarity, and the Second Amendment is perhaps one of the worst drafted of all its provisions." -- Sanford Levinson, The Embarrassing Second Amendment, 99 The Yale Law Journal 637, pp. 643-644.

When even the annotated Constitution maintained by the Library of Congress declares that "there is no definitive resolution... of just what right the Second Amendment protects" I think it's rather apparent Norris is on shaky ground with his premise:

http://www.gpoaccess.gov/constitution/pdf2002/020.pdf

So as you can see, the people who consider Constitutional law for a living DO think twenty-seven words could be clearer.

One other observation on Norris's essay. He quotes a line from Thomas Jefferson's letter to his nephew: "Let your gun therefore be your constant companion of your walks." Do you wonder why the word "therefore" is in that sentence? Obviously, it refers to something Jefferson must have written immediately prior to this.

Here is Jefferson's advice, with the sentence before Norris's citation added:

"Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks."

According to my source, that's from Volume 8 of The Papers of Thomas Jefferson, 1953, p. 407. But what is so great about the Internet is that you don't have to run to an academic library and pull out some massive, dusty book; you can just read the letter from Yale's Avalon Project site:

http://www.yale.edu/lawweb/avalon/jefflett/let31.htm

As the authors of a book discussing the Second Amendment note, "Jefferson's homily... reveals as much about the eighteenth-century English-speaking aristocracy's distaste for rowdy and plebeian soccer as it does about his constitutionalism," Uviller and Merkel, The Militia and the Right to Arms, 2002, p. 24.

My favorite part of the letter, actually, has nothing at all to do with guns or playing ball. It's this little piece of advice on the young man's education:

Then take up antient history in the detail, reading the following books, in the following order: Herodotus, Thucydides, Xenophontis Hellenica, Xenophontis Anabasis, Arrian, Quintus Curtius, Diodorus Siculus, Justin. This shall form the first stage of your historical reading..."

Okay, Jefferson's letter to his nephew does contain some sound advice that resonates to this day; I love his remark, "Give up money, give up fame, give up science, give the earth itself and all it contains, rather than do an immoral act." But times have changed in over two centuries, and I think it's a bit of a stretch to cite this letter for the principle that it's a good idea to make your gun your "constant companion" (does Norris himself even do that?) when this advice is paired with the notion that one shouldn't play ball games. If Norris has a nephew, I don't expect he will tell him not to participate in baseball, football, or basketball because they are "too violent for the body." And for sure I bet he doesn't tell him he must read Xenophontis Hellenica AND Xenophontis Anabasis.

Although if he did, he might conclude their works were clearer than the Second Amendment.

Honest Abe, cockfighting, and the Constitution

"(Cockfighting is) barbarous and cruel, leading to disorder and danger, and tending to deaden the feeling of humanity."

--Commonwealth v. Tilton, 49 Mass. 232 (1844).


Give the Massachusetts Supreme Court credit for realizing in 1844 something that it took a lot of Americans another century and a half to figure out. As late as 1998, five states--Arizona, Louisiana, Missouri, New Mexico, and Oklahoma--still permitted the alleged sport of cockfighting (Waisman, et. al, Animal Law: Cases and Materials, 2nd ed., 2002, p. 451-52). The good news is that in the ensuing ten years these five states fell in line. On August 15 of this year, Louisiana will become the fiftieth state in which cockfighting is banned (LA. Rev. Stat. Ann. §102.23, see also http://news.bbc.co.uk/2/hi/americas/6898020.stm).



In some states, the demise of cockfighting has involved the people or their legislators overturning court decisions. Such was the case in Oklahoma, where forty-five years ago a court ruled that the existing anti-cruelty statute did not enjoin cockfighting, see Lock v. Falkenstine, 1963 OK CR 32, 380 P.2d 278 (1963). For me, what is really striking about Lock isn't so much the ruling itself as this little tidbit from the opinion:



"It is reported that Abraham Lincoln said to a group of citizens, who wished to wipe out gamecock fighting by Federal Law: 'As long as the Almighty permitted intelligent men, created in his image and likeness, to fight in public and kill each other while the world looks on approvingly, it's not for me to deprive the chickens of the same privilege.'" Lock at 278.



Would you like to know where in a collection of Lincoln's papers, or in a biography of the man, this bit of Abe's homespun humor is found? Well so would I. Unfortunately, the Oklahoma court did not cite a reference for the quote. Other courts, however, have cited Lock for the assertion that Lincoln did utter such a witty observation, see State ex rel. Miller v. Claiborne, 211 Kan. 264, 505 P.2d 732 (1973) and Brackett v. State, 142 Ga. App. 601, 236 S.E.2d 689, 690 (1977). I guess that's how a story becomes "official." An official body says something and even though they don't cite a source, everybody else can now cite that body as their source for the information. Sort of like New York Times stories about John McCain.



Well, at the risk of appearing foolish should someone step forth and say, "Here it is--a substantial reference showing that Lincoln did, in fact, make that statement," let me go out on a limb and say this story probably is not true. I say that for three reasons. The first, as I've alluded to, is a matter of scholarship. If an article, court opinion, etc., says this famous person said that and there is no source indicated--not even Bartlett's Familiar Quotations for goodness sakes--I get a bit skeptical as to its authenticity. (Here's a website with lots of things Abe Lincoln is alleged to have said; not even THIS source gives the cockfighting story: http://www.brainyquote.com/quotes/authors/a/abraham_lincoln.html).



The second reason for my doubt is that the details are spotty. Notice the anecdote does not tell us when Lincoln addressed the fight against cockfighting. Was it when he was running for Congress or serving there? Was it later when he ran for President and ultimately got elected? I think if somebody accosted him about banning cockfighting when he took over at the White House in 1861 his response might have been not amusing, but instead a rather somber observation that with the nation tearing apart, he had more pressing matters at the moment.


My third reason for suspecting the story isn't all it's cracked up to be is the Constitution, as it was written and interpreted before Lincoln's assasination. It would be one thing if the anecodote stated that Honest Abe was solicited about a local cockfighting ordinance in New Salem or Springfield, or a statewide ban in Illinois. But notice that the tale doesn't say that. It specifically declares that folks approached Lincoln seeking a federal law against cockfighting. Who, I ask, before Lincoln's death, would have thought federal power allowed this?


National authority before the Civil War was quite limited; that was the framers intent. As James Madison wrote in The Federalist Number 45, attempting to sooth fears the Constitution would create too powerful a central government:


"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs; concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

That was written one score and one years before Lincoln was born (I couldn't resist writing that), but the doctrine of limited federal authority had not diminished by the time Lincoln became a lawyer. He received his license to practice law in 1836 (Delbanco, A., ed., The Portable Abraham Lincoln, 1992, p. xxxiv), just one year earlier Tocqueville commented on federalism in antebellum America in this manner:

"(I)n America the real power is vested in the states far more than in the Federal government."

And:

"In the American republics (sic) the central government has never as yet busied itself except with a small number of objects, sufficiently prominent to attract its attention."

(Democracy in America, Volume 1, the first quote is from Chapter VII, p. 143 in the Vintage Classics edition, the second is from Chapter XVI, p. 271).

That's the way scholars of our time looking back see it, too. William Novak of the University of Chicago asserts that not until 1877--over a decade after Lincoln walked the earth--did the federal government rise in power. Before that, he writes the the "locus of authority" in America was the state and local governments (The People's Welfare: Law & Regulation in Nineteenth Century America, 1996, p. 238).


And it's not too hard to figure out what happened during and after Lincoln's time that made federal power expand: the Civil War and Reconstruction. Or more specifically where the Constitution is concerned, the Fourteenth Amendment, ratified in 1868. Once there was a federal authority to decide whether a state was engaging in equal protection and due process, inevitably Washington, DC was going to ascend.


But to repeat: even with all that federal authority, we still didn't have a national law against cockfighting well over a century after Reconstruction, which is why there were still five states where you could legally induce chickens to kill each other as recently as 1998.


The end of legal cockfighting in this country on August 15 will be a day worth celebrating. Now if we could just do something about that other part of Lincoln's alleged quip and get men created in the Almighty's image and likeness to stop fighting and killing each other.

Not what the clergy is for

My intention in this blog is to stay with a Constitutional theme. In other words, I wish for this to be "Brett's Constitution," not "Brett Comments on Whatever is in the News." But since we will elect a president this year, since that's an office created by Article I, and since there are FOUR amendments to the Constitution dealing with how we elect that person and what we do if he dies, I hope I'm not straying too far afield by commenting on the controversy involving Barack Obama's pastor, Jeremiah Wright.

http://politicalticker.blogs.cnn.com/2008/03/14/obama-minister-under-scrutiny/

To be honest, I'd leave this alone, except there are two points that I haven't heard made by the pundits that I feel are significant.

1. One adjective too many, Reverend Wright. Watching the video of Wright shrieking over the power wielded in this country by "rich white people," I wondered why in the world it didn't occur to the preacher that he could have left out "white" and gotten his message across just as effectively and received just as many cheers from his congregation.

For some people, blasting the rich in America is kind of a default option. One hears statements all the time lamenting that too much wealth is in too few hands, or that the justice system is rigged to favor the well-heeled, or why can't those hotel magnates who raised that yo-yo Paris Hilton be taxed as high as the Swedes would tax them if they lived over there. But you know, most folks who take that approach leave race out of it, because it's not really germaine to the point they are trying to make. If it's bad for white people to be super rich, it's bad for black people to be super rich. Leave race out of it.

Moreover, being an ordained Christian minister, if Wright had truly wanted to sneer at the wealthy he surely must know he could have just read aloud what Christ said in Matthew 19:24: "And again I say unto you, it is easier for a camel to go through the eye of a needle, than for a rich man to enter into the kingdom of God." He didn't say "It is easier for a camel to go through the eye of a needle than for a rich person to enter into the kingdom of God, but that doesn't apply to Oprah, Denzel, LeBron, or P. Diddy." It doesn't seem to have mattered to Jesus whether the rich guy was white or black or whether the camel had one or two humps.

2. It isn't just left-wing clergymen who blamed America for 9/11. Wright is also under fire for a sermon he delivered almost seven years ago, shortly after the terrorist attacks, in which he implied that because the U.S. used the atom bomb in Japan and "supported state terrorism against the Palestinians and black South Africans" that we brought the carnage on ourselves.

Not to excuse this kind of thinking, but it deserves mention that a couple of white, right-wing ministers also felt the U.S. was to blame for 9/11. Of course, when the late Jerry Falwell and Pat Robertson expressed their view on the 700 Club two days after the attacks, they didn't say if had anything to do with Hiroshima or the Palestinians. As reported by Jon Meacham in American Gospel (2006, p. 235) the dialog went like this:

FALWELL: The abortionists have got to bear some burden for this because God will not be mocked. And when we destroy 40 million little innocent babies, we make God mad. I really believe that the pagans, and the abortionists, and the feminists, and the gays and the lesbians who are actively trying to make that an alternative lifestyle, the ACLU, People For the American Way--all of them who have tried to secularize America--I point the finger in their face and say "you helped this happen."

ROBERTSON: Well, I totally concur, and the problem is we have adopted that agenda at the highest levels of our government. And so we're responsible as a free society for what the top people do...

Again, I don't bring this up to excuse Reverend Wright's comments in any way. In fact, my attitude is to heck with all three of them--Wright, Falwell, and Robertson. As I see it, they were all being unprofessional. I say unprofessional because as I view it, the function of clergy after a national calamity like 9-11 is to comfort their flock, to pray for peace, and to remind everybody how much goodness there is in the world and in most people. In other words, amidst horror and sadness, we don't need clergy sounding like irate callers to radio talk shows.

Personally, my favorite clergyman was the Nobel Peace Prize winner who grew up a couple miles from where I write this in my Atlanta home. In a speech he delivered in 1956, Dr. Martin Luther King, Jr. declared:

"True peace is not merely the absence of some negative force--tension, confusion, or war; it is the presence of some positive force--justice, good will and brotherhood." (I Have a Dream: Writings and Speeches That Changed the World, 1992, p. 17). Those are the kind of soothing, inspiring words I would have preferred to hear from Wright, Falwell, and Robertson in the days following 9/11.

Maybe if more ministers saw the world as King did we'd have a little more of that justice, good will, and brotherhood.

Every ten years

"The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten years, in such Manner as they shall by Law direct." U.S. Constitution, Article I, Section 2.

And so the Constitution set out the rule that we'd have a census. Of course, the reason this provision is in Article I, Section 2 is because that is the part of the document that considers the apportionment of seats in the House of Representatives. The census has evolved over time into much more than that, as you can easily discover for yourself if you play around on the Census Bureau's website: http://www.census.gov/.

In doing a bit of research pertinent to another article I'll post soon, I pulled up the census report from 1950. I was looking for a ranking of states according to their population in an initial effort to discover just what percentage of Americans lived in states with segregated public schools in the last census before the Supreme Court said in Brown v. Board of Education that such educational policies were unconstitutional. And that's when I got a bit of a surprise.

Table 11 on page 1-14 of the 1950 report ranks the states in 1950 and in the previous censuses going back to 1900. Here, from number one through number ten, are the largest states in 1910 by population:

1. New York
2. Pennsylvania
3. Illinois
4. Ohio
5. Texas
6. Massachusetts
7. Missouri
8. Michigan
9. Indiana
10.Georgia

Now look at the top ten states by population in the 2000 census, ninety years later:


1. California
2. Texas
3. New York
4. Florida
5. Illinois
6. Pennsylvania
7. Ohio
8. Michigan
9. Georgia
10. North Carolina

Interesting. All the top five states in 1910 are still in the top ten. Furthermore, seven of the states that were on the list generated a few years after Wilbur and Orville Wright flew were still in the top ten almost a century later when thanks to the Wright Brothers you can travel from New York to California in a couple of hours. Moreover, the three states that fell from the 1910 list haven't descended far: Massachusetts now ranks 13th, Indiana 15th, and Missouri 18th.

It's also worth noting that two of the three current top ten states that didn't make the 1910 list were nevertheless not far from those heights back then: California was the 12th largest state and North Carolina checked in at number 16. For all the talk about how the population shifted in this country in the twentieth century, there hasn't been as much variance in where the states rank as you might have expected. In other words, Illinois is still big, Montana is still not.

With exceptions, of course. The one state that's just way out in left field on these charts is Florida. It ranked 33rd just before World War I and was STILL only number 20 in 1950. In 2000, the Sunshine State was larger than all but three other states with a population of nearly sixteen million people. In 1910 it had the absurdly low total of 752, 619 humans. (Maybe there were more alligators.) To put that in perspective: let's say that there was a county in Florida today that had the same population as the entire state had in 1910. We'll call this fictional unit "Gore County." Well, Gore would rank eighth in population among today's Florida counties, with about a third the number of individuals of Miami-Dade.

I have to admit as somone living in Georgia that I never would have guessed we were in the top ten a hundred years ago. It didn't last; in 1930 Georgia was down to 14, but that's still a big state, and gradually we climbed back. The point is, you hear a lot about how much Georgia in general and the Atlanta metro in particular have grown the past few decades, and it's true, we have--but on the other hand, unlike Florida, Georgia wasn't a tiny state in Woodrow Wilson's America.

So what state is the opposite of Florida? What state was once among the big boys and is now kind of puny?

You know how when the presidential election process began this year, as in the past, the pundits--depending on their view--either praised or sneered that the first state to weigh in is a small one, Iowa?

Well in 1900 Iowa--yes, Iowa--was the tenth largest state in the land. And it's dropped like a stone ever since, down to number 22 by 1950 and falling to number 30 by 2000. (The other small state that starts us on the presidential race, New Hampshire, has been small all along--in 2000 they ranked 41, exactly where they were in 1920.)

Do you know why Iowa and New Hampshire are small? There's no punchline; it's a serious question. And let me answer it. Iowa could be the tenth largest state in 1900 and it can't be today for a reason that matters now but didn't then: there's no big city. A state could be big without having a huge town back in the days when this was a more rural country; it doesn't work like that today. Take a look at every one of the twenty states from Iowa on down and see how few big cities are in those states. Even the few you might argue are good sized towns--Las Vegas, Honolulu, Providence--aren't exactly New York, Los Angeles, or Atlanta.

John McCain and the crazy comma

"Restrictive clauses... are not parenthetic and are not set off by commas. Thus: 'People who live in glass houses shouldn't throw stones.' Here the clause introduced by who... serve(s) to tell which people are meant; the sentence... cannot be split into two independent statements."

--Strunk and White, The Elements of Style, 4th ed., 2000, p. 4.

Recently I visited a chat board in which someone posted a humorous anecdote about a college professor who wrote a sentence on the board in front of his class and asked them to punctuate it. The sentence read:

"A woman without her man is nothing."

The young men in the class felt the appropriate punctuation was:

"A woman, without her man, is nothing."

But the young ladies present argued that the sentence only had meaning if it was punctuated:

"A woman: without her, man is nothing.

I thought about that when I encountered this article in the New York Times, discussing whether John McCain is constitutionally eligible to be president given that he was born in the Panama Canal Zone to parents stationed there because of his father's military service:

http://tinyurl.com/293fzo

That got me looking at the provision of the Constitution in question; it is in Article II, Section 1 and reads:

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States."

Wait a second, I mused after I read it, why is that second comma there? Why is it "or a Citizen of the United States, at the time of the adoption of this Constitution" instead of "or a Citizen of the United States at the time of the adoption of this Constitution" the comma excised? If I'm reading the Strunk and White text that I've quoted above correctly, that comma isn't simply unnecessary, it's wrong. "Or a citizen of the United States" makes this a restrictive clause defining who is meant. Furthermore, "Or a citizen of the United States" and "at the time of the adoption of this Constitution" can't be split into two separate statements.

Now when I read this section of Article II carefully, the thought occurred to me that perhaps the publisher of the copy of the Constitution I was reading had made an error. So I checked the books I own having copies of the Constitution--all nineteen of them. That's one in the drawer of my desk, seventeen in my bookcase, and one in the glove compartment of my car. (Yeah, I got a Constitution in the glove compartment of my car. Wanna make something of it, tough guy?)

Eighteen of my copies of the Constitution have the funny comma. That little punctuation mark is also between "States" and "at" on the Constitutions available online from the U.S. Government Printing Office (http://www.gpoaccess.gov/constitution/pdf2002/006-Constitution.pdf, p. 13) and from Yale Law School's Avalon Project (http://www.yale.edu/lawweb/avalon/art2.htm). Clearly, that comma is official.

In case you're curious--the one book in my library that does NOT have this comma--in other words, the book that has it grammatically correct but legally wrong--is Edward S. Corwin's The Constitution and What It Means Today, 14th edition, 1978. Interestingly, this textual mistake--or grammatical insight, if you prefer--occurs on TWO pages, p. 154 where Article II is discussed at length and p. 568 where the Constitution is reprinted in its entirety. I'm speculating here, but since the book was published thirty years ago, and back then the Constitution couldn't just be cut and pasted into the text by computer, whoever typeset the manuscript probably simply missed the comma because he or she did not expect it--and why would he or she since it's grammatically unnecessary? (By the way, Corwin's book is a fantastic reference source and I wish a current scholar would update it.)

After all that running around looking at my Constitutions, a thought occurred to me that perhaps has settled on you as well. Punctuation in 1787 wasn't the same as it is today, maybe what we've stumbled onto here is simply a case of the grammatical rules of 2008 being different from those of the eighteenth century. In other words, maybe the Constitutions I looked at having the weird comma were true to the original copies, with no modernization of punctuation.

Fine--except for one problem. Spelling was also different back then. And when I tried to correlate the odd comma with modernized texts, I fell deeper into the swamp. The final sentence of Article I, Section 2 begins: "The House of Representatives shall chuse their speaker and other Officers..." Obviously if we were writing the Constitution today that would be "shall choose their speaker."

Corwin's book, in which the extra comma is excised, also has "choose" and not "chuse" in its discussion of Article I. So that looks like a case of an editor modernizing spelling and punctuation. Meanwhile the Cato Institute's little book containing the Constitution and the Declaration of Independence--my desk drawer reference--has both the offending comma and the old spelling of "choose" suggesting that they consciously presented the original text unaltered. So far, so good.

But here comes the complication. Of all the copies of the Constitution that I looked at besides Corwin's--that is, all my copies which have the funny Article II comma--some had the old spelling of choose but some had the modern one. As an example of the latter, the Modern Library Classics edition of The Federalist spells it "choose" (2001, p. 582). I guess the Modern Library editors intended to modernize the text but either missed the comma or disagree with me that it is archaic. It's all very confusing.

And here's the amusing part: based on our current rules of grammar, that comma arguably means that even if John McCain had been born in Belgium to traveling gypsies who had never set foot in the western hemisphere, he still could run for President! Couldn't he? Let's look at that sentence again:

"No person except a natural born Citizen, or a Citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President..."


If that second comma wasn't there it would be clear that the entire portion of the sentence after the first comma and before the word "shall" was one related thought: "Even if you weren't born in the U.S., you still can be President if you are a citizen of the U.S. the magic moment that enough states ratify this thing for it become law."


Thanks to that bizarre comma, however, it actually reads as though everything before "at the time of the adoption of this Constitution" is modified by that phrase. In other words, you only needed to be a natural born citizen OR a citizen of the U.S. to be President at the time the Constitution was adopted. Old as he is, even John McCain wasn't around in 1788, the first election under the new government. So neither he nor anybody else running today needs to have been born in this country. The Governor of California should be pleased.


Okay, I know that's all preposterous. Clearly the framers did not mean that the only Presidential election with a residency or citizenship requirement was the first one; I'm just playing with the grammatical interpretations knowing full well that it isn't really ambiguous. We know what is actually meant. That comma may be somewhat archaic and annoying, but obviously it's not significant. In the broad field of law, once in a while you hear stories such as this one where a punctuation error leads to someone really taking a hit in a contract:


http://www.theglobeandmail.com/servlet/story/RTGAM.20060806.wr-rogers07/EmailBNStory/Business/home


... But I think these things are less common than you might guess. About a century ago, when if anything people were MORE likely to insist on contracts being observed to the letter, a court in New York State declared:


"The sense of a writing is gathered from its words and their relation to each other, and after that has been done, punctuation may be used more readily to point out the division in the sentences and parts of sentences. But the words control the punctuation marks, and not the punctuation marks the words... Punctuation in writings, therefore, may sometimes shed light upon the meaning of the parties, but it must never be allowed to overturn what seems the plain meaning of the whole document." Travelers' Ins. Co. v. Pomerantz, 124 Misc. 250, 256-257 (N.Y. App. Div. 1914). So too, I think, in Constitutional law as well as contractual law.


Sorry, Arnold.