Balkinization: Revisionist History--Season 3

Revisionist History--Season 3

Gerard N. Magliocca

I'm a fan of Malcolm Gladwell's podcast, and the first episode of this season is about the punctuation of the Constitution. More specifically, the episode discusses a paper by Michael Stokes Paulsen and Vasan Kesavan, which argues that the Texas Legislature has the power to subdivide the state into up to four new states because Congress gave its consent to that action when Texas was admitted to the Union in 1845. (Talk about the potential for partisan gerrymandering!)

There are several other fascinating points in the podcast. One is that Gladwell spends a lot of time talking about the punctuation in the Constitution without considering the possibility that the rules of grammar were different in the eighteenth century. I don't know if they were in a meaningful way, but the assumption in the episode is that we should understand the use of commas, semicolons, etc. as they are used now. Why is that?

Another Easter Egg is that Gladwell points out that the Twenty-Sixth Amendment, which was ratified in 1971 (when punctuation rules were presumably similar to our own) read literally says that anyone 18 or older is a citizen of the United States. Here is the Section One of that amendment:

"The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any State on account of age.

Read gramatically, the clause "who are 18 years of age or older" is defining "citizens of the United States." The text should read "The right of United States citizens who are 18 years of age or older" or "The right of citizens of the United States who are 18 years of age or older" In other word, there should be no commas around the relevant clause. Of course, this is just the zillionth example of why we don't read legal texts literally because the drafters are often sloppy even when the meaning is clear from the background context. (The 26th Amendment was not trying to redefine citizenship.)

The podcast is definitely worth your time, if for no other reason than that Gladwell praises law review articles.

Posted 11:37 AM by Gerard N. Magliocca [link]

Comments:

There are several other fascinating points in the podcast. One is that Gladwell spends a lot of time talking about the punctuation in the Constitution without considering the possibility that the rules of grammar were different in the eighteenth century.

"Fascinating" isn't quite the word I'd use there.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The adding consent in 1845 bit is ... well amusing is one word to use.

# posted by

Joe : 11:53 AM

Punctuation was pretty free form back when the Constitution was written, and commas especially so. I think they didn't indicate much more than that the writer thought somebody speaking aloud might pause to breath.

As for the 26th amendment, the distinction between prescriptive and descriptive grammar might be relevant here. The amendment might be perfectly grammatical in the latter sense.

# posted by

Brett : 11:56 AM

Gerard: Gladwell spends a lot of time talking about the punctuation in the Constitution without considering the possibility that the rules of grammar were different in the eighteenth century. I don't know if they were in a meaningful way, but the assumption in the episode is that we should understand the use of commas, semicolons, etc. as they are used now.

Grammar at the time of the Constitution was drafted used a much higher volume of commas and semicolons to create run on sentences than is the practice today. However, the rules concerning main and subordinate clauses remain basically the same.

Another Easter Egg is that Gladwell points out that the Twenty-Sixth Amendment, which was ratified in 1971 (when punctuation rules were presumably similar to our own) read literally says that anyone 18 or older is a citizen of the United States. Here is the Section One of that amendment: "The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any State on account of age."

How do you figure?

Grammatically, the primary clause of Section One is "The right of citizens of the United States...shall not be denied or abridged by the United States or any State on account of age." The inclusion the subordinate clause "who are 18 years of age or older" following the phrase "citizens of the United States" in no way limits the general population of citizens to those 18 years of age or older, but rather creates a subcategory of citizens to whom the franchise is granted.

# posted by

Bart DePalma : 12:54 PM

If you pay attention to commas, Zachary Taylor was our last legitimate President.

# posted by

CJColucci : 1:57 PM

This comment has been removed by the author.

# posted by

Mista Whiskas : 4:18 PM

Maybe we need Victor Borge's audio punctuation method to better understand this post.

# posted by

Shag from Brookline : 8:03 PM

I did a little Googling on "the role of punctuation in linguistics" and found some items of interest, including at this link:

https://articles.c-a-s-t.com/punctuation-1-the-linguistic-side-9ba8eb11fbf2

"Punctuation (1): the linguistic side
The role punctuation marks play within the discussion of writing and speech according to Bredel’s approach. Clarifying their functions puts them into a fresh light"

A passing reference is made to emojis and their use in writings.

For something more wonkish check out this link:

https://functionallinguistics.springeropen.com/articles/10.1186/s40554-016-0029-x

"What’s the point? The role of punctuation in realising information structure in written English"

Maybe originalists out there can provide links to how punctuation applies regarding "original public meaning" in interpreting/construing the Constitution. Or some might search SCOTUS decisions for how punctuation in the Constitution has been addressed.

# posted by

Shag from Brookline : 4:05 PM

Query: To what extent may punctuation be a form of verbal tics of the writer(s) of text?

# posted by

Shag from Brookline : 11:21 AM