"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:
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:
... 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.