(A column of dots on the left, including an extra dot at the end of the column, if produced by your browser, may be disregarded.)
Conclusions proffered are based on facial analysis, disregard a potent argument that past practice will resolve the issue, may be weak in comparison to other arguments and strategies available for a cause, and are subject to review and ridicule and to being disregarded by attorneys and judges. Precedents, for example, should be examined, as I have not done so in depth for purposes of drawing these conclusions. The following are not definitive statements of the current state of the law on any subject.
One implication doesn’t mean other implications don’t exist for the same error. I make no attempt to identify all possible implications, or even all reasonable, or all strong, implications. Different attorneys with different issue sensitivities may note possibilities not mentioned here.
Statistically, these represent 56 discrepancies, affecting 20 core provisions. The 56 in turn represent just over 5˝% of all core discrepancies reported in these appendices.
In the following Constitutional texts (which are based on appendices to the article), emphases, bracketed insertions, and ellipses have been added and captions generally omitted. The order of appearance is as they appear in the Constitution.
Repealing Invasions (Article I, § 8, Cl. 15):
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
— National Archives
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repeal Invasions;
— Constitution Annotated Literal Print
Authority for the militia to “repeal” invasions means the right to amend laws and decisions approved by other than Congress.
Whether this would include jurisdiction over other nations’ legal actions is debatable.
If it would not, then the authority would be limited to civil wars within the United States, and only if the domestic invasion was pursuant to a legal decision and not due simply to a rogue personality, with the consequence of forcing legal recognition of whichever authority made a decision to invade. Simply commanding a militia to ignore a legal decision does not amount to repealing it, thus the need to recognize the wayward administration.
That the legislative act of repealing would be performed by the militia and not directly by Congress is presumably consistent with existing Constitutional authorities for military and martial law inside the United States under some circumstances.
Success in repelling an invasion by means of a signed repealer could establish with finality that the pen is mightier than the sword.
Habeas Corpus Unless Unsafe (Article I, § 9, Cl. 2):
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
— National Archives
The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases or Rebellion or Invasion the public Safety may require it.
— Constitution Annotated Literal Print
The former is narrower to an extent that may be relevant to current events.
Habeas corpus, under the latter, would be deniable if “in Cases
Appointing Officials Ex Officio (Article II, § 2, Cl. 2):
[The President]
— National Archives
[The President]
— Constitution Annotated distributed rendition
The difference between “the Courts of Law” and “the Court of Law”, respectively, is that the latter does not appear to refer to a judicial court but instead to Law as an institution in its own right, an institution or a means by which appointments can be effected. The most practicable implication perhaps is for appointments ex officio, by which a statute specifies qualification and anyone so qualified thus would be deemed appointed by operation of statute without human intervention.
Such a means, of course, could outlast a Presidential administration, as repeal or amendment of such a law would require a new law.
Were it Law as institution, of course, courts, the kind with judges, could not be delegated appointment authority, which would place certain appointments in recent decades in jeopardy, in turn potentially placing the work done by those appointed beyond their jurisdiction.
That Constitution Annotated is issued by the Library of Congress and differs on Congressional authority might suggest a view that the question is a political one, thus not justiciable, but that view is not dispositive.
Treason Defined (Article III, § 3, Cl. 1):
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and
— National Archives
Treason against the United States, shall consist only in levying War against them, or, in adhering to their Enemies, giving them Aid and
— Black’s Law Dictionary
In defining treason as other than levying war against the states, the National Archives’ text prioritizes adhering to enemies, describing that as giving aid and comfort, while the Black’s text prioritizes giving aid and comfort, subsuming adhering to enemies as secondary to it.
This is the sort of distinction that could contribute to a news story soon, and it is due entirely to the existence or absence of one comma, that following “or”.
Normal Privileges and Immunities (Article IV, § 2, Cl. 1):
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
— National Archives
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in several States.
— Keepsake Edition
The Bicentennial Keepsake Edition, a lay edition endorsed by high authorities, would narrow the Article IV guarantee of privileges and immunities.
While reference to “the several States” translates as all fifty States, a reference to “several States”, being vaguer, opens the possibility of one party choosing which states should constitute the benchmark for another party’s rights and which should not.
Cf. Amendment XIV, § 1 (“privileges or immunities” and state enforcement).
New States (Article IV, § 3, Cl. 1):
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.
— National Archives
New States may be admitted by the Congress into this Union; but no new State shall be formed or erected with 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.
— Black’s Law Dictionary
The Black’s text would forbid forming or erecting a new state so that it possesses any other state’s legal authority, thus able to exercise the older state’s jurisdiction over future matters of concern, but not preclude the opposite; while the National Archives’ text forbids forming or erecting a new state so that it is under any other state’s legal authority, thus unable to exercise its own authority without the older state’s permission, but does not preclude its opposite.
Jurisdiction, notably, may apply not only to place but also to person and subject.
Viewed differently, the National Archives’ text would allow some newer states to have jurisdiction over some older ones, while the Black’s text would instead allow some older states to have jurisdiction over some newer ones.
One word is all it took to generate such a difference.
A state having jurisdiction over another need not be predicated on any prior agreement between them, so that subservience might be nonconsensual, as well as permanent, making directionality all the more critical.
Constitutional Amendment by Convention (Article V):
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress
— National Archives
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Convention in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress
— USCS principal annotated rendition
Amendments proposed at the Federal level may be ratified at the state level by legislature or by convention. For ratification by convention, the National Archives’ text specifies “by Conventions in three fourths [of the states]”, which today would mean thirty-eight conventions. However, the USCS principal annotated text specifies “by Convention in three fourths
Rights Untouchable or Only Unabridgeable (Amendment I, Rights Generally):
Congress shall make no law respecting [i.e., ‘with respect to’] an establishment of religion, or prohibiting the free exercise thereof; or [respecting] abridging the freedom of speech, or of the press; or [respecting] the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— National Archives
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— Senate and House pamphlets and Keepsake edition
Whether “press” is followed by a semicolon or a comma may determine the breadth of the civil liberties of assembly and redress.
The semicolon creates a pairing of subjects untouchable by Congress: first, establishment of religion, prohibition of religious exercise, and abridgment of speech and press; and, second, peaceable assembly and petition for redress. The comma, on the other hand, creates merely a list of three things that shall not be abridged: speech, press, and assembly-and-petition. The difference is that what may not be abridged may still be legislated upon in nonabridging ways.
The comma, and therefore the two Congressional pamphlets and the Bicentennial Keepsake edition, provide for a narrower reading of the public’s rights.
Right Singly or Doubly Protected (Amendment I, Petitioning and Redress):
Congress shall make no law respecting
— National Archives
Congress shall make no law respecting
— USCS unannotated rendition
The USCS Complete Text offers broader protection for assembly and petition. While the National Archives’ text would stop Congress from enacting a law with respect to the right, the USCS text would stop Congress from enacting a law with respect to the freedom of the right, arguably a double layer of protection.
This is due to the inclusion in USCS’ text of the word “of” in “of the right”, when the National Archives doesn’t show that word.
Public’s Right of Assembly (Amendment I, Petitioning and Redress):
Congress shall make no law respecting
— National Archives
Congress shall make no law respecting
— USCS unannotated rendition
The word “peacably”, if it is not held to mean “peaceably”, might (albeit improbably) have no meaning, allowing assembly to be peaceable or not and still be protected as of right, if USCS Complete Text is correct. However, this interpretation is unlikely to be accepted, because any provision is presumed to be meaningful.
But, when unable to find a word in a dictionary, deeming the word orthographically wrong begs the question of what spelling was intended: “peacably” might, for instance, be a misspelling of peakably, referring to the right of people to assemble to a peak; and, as peak is a recognized variant of pique and as piquable is itself recognized, albeit as rare (see Oxford English Dictionary ([1st ed.] 1933), the right of people to assemble until piqued, irritated, or aroused would seem assured.
Housing Soldiers (Amendment III):
No Soldier shall, in time of peace be quartered in any house; without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
— National Archives
No soldier shall, in time of peace be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.
— Statutes at Large
Homeowners generally don’t have to house soldiers except as law says otherwise. There are such laws; the question is whether they control during peacetime.
The semicolon after “owner” makes the legal exception applicable only in wartime. The comma after the same word arguably makes the legal exception applicable in peacetime as well as in wartime.
Praeess vs. Process (Amendment VI):
In all criminal prosecutions, the accused shall enjoy the right
— National Archives
In all criminal prosecutions, the accused shall enjoy the right
— U.S.C., U.S.C.A. unannotated and principal annotated renditions, USCS unannotated and principal annotated renditions, Senate and House pamphlets, Black’s Law Dictionary, Constitution Annotated Literal Print and distributed rendition, and Keepsake edition
In all criminal prosecutions the accused shall enjoy the right
— Statutes at Large
Comment is left to the reader.
Interstate Federal Suits Asserting State Law Claims (Amendment XI):
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
— National Archives
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one on the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
— Constitution Annotated Literal Print
A suit “on the United States” might mayhap mean a suit relying on the substantive law of the Federal government, unlike a suit based on state law pressed in Federal court. If so, the bar to one state’s citizens suing another state’s government would not be a bar if the substantive claims are made under state law, any state’s law.
Electoral College (Amendment XII):
The Electors shall meet in their respective states and vote by ballot for President and Vice-President
— National Archives
§ 1. The electors shall meet in their respective States, and vote by ballot for President and Vice President
§ 2. The person having the greatest number of votes as Vice President shall be the Vice President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list the Senate shall choose the Vice President
— Statutes at Large
The electoral college is required to send to the Senate a list or two of their votes for President and Vice President, so the Senate can carry out the counting.
A slim argument under the Statutes at Large text is that only one list need be sent and, even more thinly, specifically that that list is only of Vice Presidential votes.
Contra, however, ibid., which goes on to refer to separate lists to be used if no one gets a majority of the college’s votes for either office.
Alternatively, the difference between the two texts is more of a formality, in whether one list listing votes for both offices or two lists treating the offices separately is required. That could justify a challenge to an election if the college violated a procedural duty. However, such a challenge alone would be unlikely to prevail in court, especially retrospectively.
Sharing Enforcement of Amendment XIV (Amendment XIV, § 5):
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
— National Archives
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
— U.S.C., U.S.C.A. unannotated, principal annotated, and redundant annotated renditions, USCS unannotated and principal annotated renditions, Statutes at Large, Senate and House pamphlets, Constitution Annotated Literal Print and distributed rendition, and Keepsake edition
While the National Archives’ text gives “the power” to Congress, the other texts listed give “power” to Congress, the latter suggesting that Congress’ power is not as exclusive of anyone else’s as might be thought.
Compare to Congressional Article I powers the delegation of which are significantly circumscribed.
Senate Vacancies (Amendment XVII, Cl. 2):
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
— National Archives
When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
— Constitution Annotated distributed rendition
The latter can be interpreted to mean that all fifty states must coöperate in issuing writs of election when one state has Senate vacancies to fill.
However, there is only one executive authority that can presently be syntactically described in the singular while being applied to fifty states, and that is the Executive Branch of the Federal Government, unless states have agreed among themselves to form a shared executive authority, perhaps with no duty other than that under this clause.
There is little risk that this interpretation would result in a shortage of Senate representation, as the proviso in the clause empowers each state temporarily to fill its own vacancies without needing the consent of any other state.
If a rationale must be proposed to explain the Framers’ phrasing (assuming the phrasing is theirs), an obligation of “each” state to act when any state loses both of its Senators might have been insurance against one state neglecting to act upon its own first vacancy occurring. Alternatively, this clause arguably applies only when a state has two simultaneous Senate vacancies, leaving open what should be done when there’s only one vacancy.
Voting Under Fiscal Burdens (Amendment XXIV, § 1):
The right of citizens of the United States to vote in any primary or other [Federal] election
— National Archives
The right of citizens of the United States to vote in any primary or other [Federal] election
— U.S.C., U.S.C.A. unannotated and principal annotated renditions, USCS unannotated and principal annotated renditions, Statutes at Large, U.S. Code Cong. & Admin. News, Federal Register, Senate and House pamphlets, Constitution Annotated Literal Print and distributed rendition, and Keepsake edition
The latter text is somewhat broader than the National Archives’, reaching into gray areas of what constitutes a tax, at least the gray areas on the edges of poll taxes, and thus into Governmental burdens on voting, especially those that are fiscally significant burdens.
Emergency Presidential Succession (Amendment XXV, § 4, Cl. 1):
Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
— National Archives
Whenever the Vice President and a majority of either of the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
— U.S. Code Cong. & Admin. News
Presidential succession may be initiated by the Vice President in concert with other persons.
Who those other persons would be depends upon which text is accurate. The latter rendition specifies “either of the principal officers of the executive departments”, which implies that only two such officers exist, and further specifies “a majority of” such officers, which effectively specifies unanimity among such officers. This is rendered moot if Congress instead provides a body for the purpose, unless the operative phrasing is
On the other hand, there may simply be too many instances of, for instance, “of” for syntactical correctitude.
Voting Rights Undeniable (Amendment XXVI, § 1):
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.
— National Archives
The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied, or abridged by the United States or by any state on account of age.
— Keepsake edition
If a comma belongs after “denied”, then “on account of age” applies only to abridgment and not to denial of the right to vote belonging to any citizen who is at least eighteen.
In that case, as long as the citizenship and age-eighteen tests are met, the citizens have a right to vote. Thus, e.g., short-notice absentees without time to apply for absentee ballots, unpardoned felons, college students residing in small towns while at school and wishing to vote in local races, homeless persons subject to local governance, chronic-care hospital patients with no other residence, occasional voters whose registrations have been canceled for not having recently voted, and persons who missed a registration deadline or who have moved since (given the analogy that there is no need to register with the Internal Revenue Service before filing a return, even one qualifying for a refund) would all be entitled to vote, as long as they’re at least eighteen and citizens of the country.
Immediacy of Congressional Pay Raises (Amendment XXVII):
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
— National Archives
No Law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
— Black’s Law Dictionary
Capitalizing “Law”, when no noun not a formal title is capitalized, suggests that law that is not called a “Law” may vary the compensation without an intervening election. E.g., a regulation may suffice to make a raise immediate.
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Appendix first publicly posted to the World Wide Web July 24, 2004; revised (to add links) and posted August 17, 2004.
Minor revisions: Copyright © 2004 Nick Levinson
Balance: Copyright © 2003 Nick Levinson
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