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All Renditions, Re Bill of Rights Preamble:
All renditions should have the preamble for the Bill of Rights, just as they have the preamble from the original Constitution, as it’s important for purpose-based interpretation (when courts do such interpretation). It appears to be clearly more important, in terms of modern legal interpretation, than the letter of transmittal accompanying the original Constitution. That the preamble to the Bill of Rights can be looked up is not helpful when a rendition used as authority does not announce that such a preamble even exists, much less where it can be read. I did not research the extent to which ratifications included or excluded the preamble or courts have considered the issue. It arguably carries more weight than the intent of the framers documented only elsewhere, and presumably applies when any of the twelve amendments proposed on the same page were ratified, without requiring all twelve to have been ratified, since there appears to have been no requirement that ratification be of all twelve articles of amendment written on the sheet or of none, and any claim that ratification had to have been of all twelve or of none would have run into, inter alia, the antiquity counterargument.
A scope-of-applicability error occurs when the general heading of the Bill of Rights, as originally phrased, is applied to all of the amendments, because it specifies the legislative method of amendment, whereas the liquor prohibition repeal amendment, Amendment XXI, was ratified by conventions rather than by legislatures. In some renditions, the legislative-specific phrasing is rewritten, which eliminates the scope of applicability problem, but which introduces an accuracy problem, because the language is so structured as to appear to be not a modern editorial addition but from the Bill of Rights or an amendment, thus implicitly invoking the phrase about legislatures, making the language incorrect in either case when applied to amendments not in the Bill of Rights.
In the preamble as ratified, an ambiguity is formed by its reference to amendments being additional, while claiming that they amend the Constitution. They are additional to the original but they are of the whole.
In the resolving clause, the word vizt. (which may appear with 2 periods, one or both of which may precede the last letter) is an obsolete form of both viz. and viceroy, according to the Oxford English Dictionary Online, accessed Dec. 7, 2002. While the former may be the likelier in context, there may be little proof of that, so rendering it as viz. may amount to a word substitution error rather than a misspelling.
“Congrefs”, not “Congress”, is in the Bill of Rights in the statement of place and date that also applies to Amendment XXVII. That determination depends on the relevant typographic styles prevalent in 1789. While the word is printed by hand, its prominence by size and placement on the page and the difference in its calligraphic styling in comparison to the rest of the page’s content makes it particularly susceptible to comparison to then-prevalent fonts used in published works, as that would determine how the letter in question would be interpreted upon its appearance in the Constitution. The handwriting in the body of the first ten amendments, e.g., in Amendments IV (twice), VII, and XXVII, uses a character that is identical whether it is “f” or “s” and is defined by the next character, the latter an “f” or “s”, respectively; it employs a high ascender and a low descender, the descender being a loop with its orientation opposite that of the descender on the trailing or isolated “f”; but no similar potential for misidentification appears to be the case with typeset fonts of the period, and this allows comparison to be useful. For such a comparison, reliance was placed upon The Typographic Book 1450–1935: A Study of Fine Typography Through Five Centuries: Exhibited In Upwards of Three Hundred and Fifty Title and Text Pages Drawn From Presses Working In the European Tradition, by Stanley Morison and ed. Kenneth Day (Chicago: U. Chi. Press, 1963), passim (authorship adjudged per id., p. vii (Publishers’ Preface), id., p. [v] (2d title-piece p.), id., p. [vi] (copyright notice), id., spine, & id., dust jacket front and rear panels and spine) (title per spine & dust jacket spine The Typographic Book, 1450–1935). Samples chosen were those for 1789 and earlier, in italic style, and where the letter could be identified as either “f” or “s” because of familiarity with the word or context in which used; no such sample purported to show a full character set. No attempt was made to locate variants of all words in foreign languages in order to eliminate alternate spellings, since dictionaries needed would have to have been historical or contemporary with the editing or printing and comprehensive as to spelling variants; thus, uncertainty as to a word and resulting ambiguity as to a character led to not considering it as probative. No determination of what typeset font would be closest to the calligraphy used for the letter in question was attempted, but it appears, at least, to be italic, and to have a crossbar at a position appropriate for an “f”, but only the left half of a crossbar, albeit not so small as to be merely a stub, but of a plainly visible size, if faint. Plate 230, for 1785 (from Caractères de l’imprimerie de M. Pierres, by H. T. De Hansy, printed in Paris by Philippe-Denis Pierres), shows, for a nonduplicated letter, either a full crossbar or none at all, and for “ff” a single crossbar that extends both left and right of the nearly vertical backbones (e.g., in “faut” and “différent” vs. “c’est” and “raisonnable”), but no “ss” is in the sample, and the roman sample in the same plate and of virtually identical wording shows very short left-pointing stubs in several of a character that might be “s” (as in “c’est”, “raisonnable”, “n’est”, “perspective”, and “bassesse”), stubs not visible in the italic counterparts. Plate 208, for 1766 (from La Pharsale de Lucain, by Marmontel, printed in Paris by Merlin), shows “Françoise” with no crossbar or apparent stub in the “s”. In English, plate 206, for 1761 (from The Book of Common Prayer, printed in Cambridge by John Baskerville), shows no crossbars or apparent stubs in “sung or said” but does show short left-pointing stubs in roman “Administration”, “Use”, “University”, “sold”, and “Bookseller”, while showing full crossbars in all four instances of “of”. From much earlier, plate 187, for 1704 (from The History of the Rebellion, &c., bk. I, by Clarendon, printed in Oxford by University Press), shows a roman letter with a left-pointing crossbar not a stub and another with a full crossbar in the same title, the former attached to the adjacent “t” (“History”) and the latter not attached (“of”); however, several italics on the same page show neither crossbar nor stub (e.g., “so great” and “so nigh”) whereas two more italics in the same passage either show no crossbar or stub or show a full crossbar (“which I set before you”, with two more in “self”), the italics also differentiable in their descenders but not consistently by letter. These samples, if representative for educated American readers’ experience in 1789, indicate that an italic would usually have had a full crossbar for an “f” but no full or half crossbar or stub for an “s”, while a roman would usually have had a full crossbar or a stub, respectively. Thus, I judged the Constitutional word to be “Congrefs”, even though my only proposed explanation for why a drafter would have so spelled it is a drafter’s error.
The retypeset rendition employs a double hyphen where other publishers provide an em-dash. While the double hyphen is a reasonable accommodation to the requirements of many users’ browsers accessing the rendition via the Internet, the error by the National Archives is, as of May 3, 2003, in not stating their editorial decision, so that users can accurately reconstruct original texts.
The Constitution is classified as not organic law in U.S.C.A., contrary to the same publisher’s explanations of what law is organic. It should be reclassified. The text is presently placed away from the section stating Organic Laws. The documents the publisher deems as organic hardly belong there insofar as they are only of historical interest and no longer applicable as law, and thus probably should be reclassified out of that heading (although kept for historical interest), while the Constitution by its own terms is clearly organic and should be classified as such. See Black’s Law Dictionary (7th ed.), organic law, def. 1, and 16 Corpus Juris Secundum (C.J.S.) Constitutional Law, § 2, subsec. a. Accord, the classification of the Constitution as organic in United States Code (2000 ed.). Accord, also, Explanation in U.S.C.A. volume with the unannotated Constitution, p. VII ff.; contra, Table of Contents in same volume, p. XV ff.
In 1992, Amendment XXVII was finally ratified. U.S.C.A., while acknowledging this in some renditions, elsewhere announces that it failed to be ratified; the pocket part should update the information but does not. See the main or bound vol. with Constitution of the United States: Unannotated, Amdt. I, Historical Notes, Proposal and Ratification of Amendments 1 to 10 (describing the amendment as having “failed of adoption”). The identical note appears in the corresponding place in the principal annotated rendition.
Annotations, since they’re grouped by number, should not be assigned to identical numbers unless the textual subdivisions they’re under are also numerically captioned so as to distinguish them conveniently, topical guide words being less likely to be followed when tracing annotations into supplements or pocket parts, especially where supplements or pocket parts lack distinguishing guide words. They can be confusing to cite or find, especially so in a supplement or pocket part where it doesn’t requote text that hasn’t changed since the issuance of its main or bound volume. As a result, attorneys and paralegals looking in the table of contents for the annotations for one Constitutional provision stand a substantial chance of flipping to the wrong page and reading irrelevant annotations without realizing it, and probably concluding that U.S.C.A. has nothing on the point they’re researching. Art. I, § 10, cl. 1; Amdt. I; Amdt. V; and Amdt. XIV, § 1, are further subdivided; see, in the main or bound volumes, the guide words. It is recommended that West Group either caption its textual subdivisions as subdiv. 1 et seq. of clause 1, Amendment I or V, or § 1, respectively, and number guide words accordingly in every two-page spread or assign a single sequence of note numbers across all of the subdivisions so that, e.g., there’ll be only one Note 1 to Amdt. V; and make guide words and page headers consistent between main or bound volumes and their supplements or pocket parts.
United States Code Service carries two additional renditions not described in this research, because none of the content of the additional renditions is Constitutional core. They do, however, have discrepancies, including of word choice and punctuation:
— Within the Complete Text, before Amdt. 1, “HISTORY; ANCILLARY LAWS AND DIRECTIVES”, Explanatory Notes, 1st note, three times quotes, or misquotes, from the general heading for the Bill of Rights. Fragment 3, “ARTICLES” (in double capitals), as it appears in the handwritten original at the National Archives’ Web site, is in USCS as “articles”, a case difference. Fragment 6, “Amendment”, is in USCS as “amendment”. And fragment 7, “Amendment of”, is in USCS with a comma (“amendment of,”).
— Within the principal annotated rendition, before Amdt. 1, “HISTORY; ANCILLARY LAWS AND DIRECTIVES”, Explanatory Notes, 1st note, three more times quotes, or misquotes, from the general heading for the Bill of Rights. Fragment 3, “ARTICLES” (in double capitals), as it appears in the handwritten original at the National Archives’ Web site, is in USCS as “articles”, a case difference. Fragment 6 offers a case error, the Archives stating “and Amendment” while USCS serves up “and amendment”. And fragment 7, “Amendment of”, is in USCS with a comma (“amendment of,”).
A bracket indicating a supersession boundary is mispositioned. In Art. I, § 3, cl. 2, the opening noncaption bracket, both in the Complete Text and in the principal annotated rendition, should precede the semicolon.
Preratification and postratification renditions differ, and no explanation as to why was found. While, for example, a proposal by a Representative or Senator could be amended by Congress before proposal to the states, it’s questionable whether any number of states could amend at all what was proposed to the states, even if all the ratifying states or all the states in the union were unanimous in doing so, and ratification yet be valid, and if that is nonetheless permissible then it would still be questionable how much could be amended. The original Constitution and early Amendments did not contemporaneously appear in these volumes, publication of which began later, thus their scope is limited to later Amendments. It was not presumed that editors of these volumes had access to the originals at the National Archives, because of the number of discrepancies found in these volumes, and thus no benefit of the doubt was granted as to editors’ interpretation of handwriting or old printing, as was granted with respect to the Constitution Annotated Literal Print. It is possible that any error in any of these Stat. volumes was corrected in a later volume; but such corrections were not sought, as few users of the volumes would ordinarily do so themselves. (U.S. Code Congressional and Administrative News and the Federal Register were not examined and compared for preratification texts, so no judgment is offered on those media.) Differences within U.S. Statutes at Large are as follows, with references to preratification preceding postratification and with Stat. vol. eds. as specified elsewhere in these appxs.:
— Amdt. I: 1 Stat. 97 vs. 1 Stat. 21: “thereof,” vs. “thereof;”.
— Amdt. II: 1 Stat. 97 vs. 1 Stat. 21: “state” vs. “State”.
— Amdt. III: 1 Stat. 97 vs. 1 Stat. 21: “shall” vs. “shall,”; “peace” vs. “peace,”.
— Amdt. V: 1 Stat. 98 vs. 1 Stat. 21: “capital,” vs. “capital”; “militia” vs. “militia,”; “service” vs. “service,”; “compelled” vs. “compelled,”; “case” vs. “case,”; “a witness” vs. “witness” (word choice); “himself,” vs. “himself;”; “liberty” vs. “liberty,”.
— Amdt. VI: 1 Stat. 98 vs. 1 Stat. 21: “state” vs. “State”; “favour,” vs. “favour;”.
— Amdt. VII: 1 Stat. 98 vs. 1 Stat. 21: “fact,” vs. “fact”; “a jury,” vs. “a jury”; “States,” vs. “States”.
— Amdt. IX: 1 Stat. 98 vs. 1 Stat. 21: “Constitution,” vs. “Constitution”.
— Amdt. X: 1 Stat. 98 vs. 1 Stat. 22: “respectively,” vs. “respectively”.
— Amdt. XI: 1 Stat. 402 vs. 1 Stat. 22: “equity,” vs. “equity”; “another state” vs. “another State” (case); “another state” vs. “another State,” (punctuation); “foreign state” vs. “foreign State”.
— Amdt. XII: 2 Stat. 306 vs. 1 Stat. 22: “counted:” vs. “counted;”; “President, the vote shall” vs. “President, the votes shall” (word choice); cls. 1–3 vs. §§ 1–3.
— Amdt. XIV, § 2: 14 Stat. 358 vs. 15 Stat. 706: “representatives in” vs. “Representatives in”.
— Amdt. XIV, § 3: 14 Stat. 359 vs. 15 Stat. 706: “senator” vs. “Senator” (case); “senator,” vs. “Senator” (punctuation); “representative” vs. “Representative”; “who” vs. “who,”; “may” vs. “may,”; “house” vs. “House” (case); “house” vs. “House,” (punctuation).
— Amdt. XVII: cl. 2: 37 Stat. 646 vs. 38 Stat. 2049: “Provided” (trailing comma not italic) vs. “Provided”; “appointments” vs. “appointment” (word choice).
— Amdt. XXIII, § 2: 74 Stat. 1057 vs. 75 Stat. 847: period at end outside of quotation marks bounding amendment text (thus period not part of amendment) vs. the period being within the quotation marks.
— Amdt. XXVII: 1 Stat. 97 vs. 106 Stat. 5146: “law” vs. “law,”; “and Representatives” vs. “and Representatives,”.
Brackets indicating supersession boundaries are apparently in error. At the end of Art. I, § 3, cl. 2, the opening bracket probably should precede the semicolon and the closing bracket probably should precede the period. Also, as to the last bracketing in Art. III, § 2, cl. 1, the opening bracket probably should precede the comma and the closing bracket probably should precede the period.
A mention of an old proposed amendment erroneously denies that it was ratified. At the statement of place and date, on p. 20 of either brochure (p. 22 (House) or 23 (Senate) in Acrobat Reader), a footnote says, in pertinent part, “On September 25, 1789, Congress transmitted to the state legislatures twelve proposed amendments, two of which, having to do with Congressional representation and Congressional pay, were not adopted.” To be correct, and to be consistent with the footnote to Amdt. XXVII in each brochure, it should conclude
The wrong date is given in the Constitution Annotated Literal Print for the proclamation of the ratification of Amendment XXVII. See id., p. 44, n. 19. It was proclaimed by the Archivist of the United States on May 18, not May 19, 1992. See Certification of Amendment to the Constitution of the United States Relating to Compensation of Members of Congress, 57 FR 21188, Tuesday / May 19, 1992, no. 97 (Ofc. of Fed. Reg., Natnl. Archives & Records Admin. (microfiche (AE 2.106:57/097, 1 of 2, 24X SuptDocs/GPO p. [sic] 21187–21275) (microfiche env. blank except for stampings (prob. stamped by recipient)))) (certification dated “this 18th day of May
Two sources are miscited. One, 40 Stat. 1059, is cited at p. 35, n. 10 (Literal Print), but 40 Stat. 1050 is probably meant. Likewise, 25 FR 1717, which concerns fish portions, is cited at p. 41, n. 16 (Literal Print), but 29 FR 1715 or 1715–1716 is probably meant.
Describing an amendment as purported may be legally justified but the mention should refer readers to a fuller discussion. At p. 44, n. 19 (Literal Print) (Amdt. XXVII), cross-references may lie to p. 900 ff. and p. 1997, n. 1.
A questionable narrowing of ratification dating for Amdt. XXVII appears at p. 25, n. 2, 2d paragraph (Literal Print), where, to include all ratifying states, “1980–1992” probably should read “1978–1992” and probably should also refer to 1873, per id., p. 44, n. 19 (Literal Print), because of ratifications by Wyoming and Ohio, respectively.
A note to the interpretive text contains an apparent error that is not part of the Constitutional text. At p. 955, n. 5, where the note continues onto p. 956, it says,
Amendments as proposed are editorially deemed to be “officially” published in U.S. Statutes at Large when proposed by Congress to the states, when an argument can be made that the official publication occurs when sufficient numbers of the states completed ratification. In that some of the Statutes at Large renditions appear to differ between preratification and postratification (see the descriptive listing supra), the labeling and explanation, or lack thereof, can be significantly meaningful. An explanation of why one and not the other rendering of each amendment is to be considered official should be provided or the entries should be labeled as to processual timing. Because of the textual differences, not doing so is error. Specifically, the distinctions are as follows:
— Amdts. I–X: 1 Stat. 97 (preratification) (cited at Const. Anno., p. 25, n. 2) and 1 Stat. 21 (postratification).
— Amdt. XI: 1 Stat. 402 (Const. Anno., p. 28, n. 3) and 1 Stat. 22.
— Amdt. XII: 2 Stat. 306 (Const. Anno., p. 28, n. 4) and 1 Stat. 22.
— Amdt. XIII: 13 Stat. 567 (Const. Anno., p. 30, n. 5 (with annotation on date being consistent with preratification status)) and 13 Stat. 774–775 (certification referred to in Const. Anno., p. 30, n. 5).
— Amdt. XIV: 14 Stat. 358 (Const. Anno., p. 30, n. 6 (with anno. on date)) and 15 Stat. 706 (certification with reservation referred to in Const. Anno., p. 30, n. 6, but not citing publication of subsequent certification without reservation).
— Amdt. XV: 15 Stat. 346 (Const. Anno., p. 33, n. 7 (with anno. on date)) and 16 Stat. 1131 (certification referred to in Const. Anno., p. 33, n. 7).
— Amdt. XVI: 36 Stat. 184 (Const. Anno., p. 33, n. 8) and 37 Stat. 1785 (certification referred to in Const. Anno., p. 33, n. 8).
— Amdt. XVII: 37 Stat. 646 (Const. Anno., p. 34, n. 9) and 38 Stat. 2049 (certification referred to in Const. Anno., p. 34, n. 9).
— Amdt. XVIII: 40 Stat. 1050 (Const. Anno., p. 35, n. 10 (erroneously as 40 Stat. 1059 as discussed supra)) and 40 Stat. 1941 (certification referred to in Const. Anno., p. 35, n. 10).
— Amdt. XIX: 41 Stat. 362 (Const. Anno., p. 36, n. 11) and 41 Stat. 1823 (certification referred to in Const. Anno., p. 36, n. 11).
— Amdt. XX: 47 Stat. 745 (Const. Anno., p. 36, n. 12) and 47 Stat. 2569–2570 (certification referred to in Const. Anno., p. 36, n. 12).
— Amdt. XXI: 47 Stat. 1625 (Const. Anno., p. 38, n. 13) and 48 Stat. 1749 (certification referred to in Const. Anno., p. 38, n. 13).
— Amdt. XXII: 61 Stat. 959 (Const. Anno., p. 39, n. 14) and 65 Stat. 777 (certification referred to in Const. Anno., p. 39, n. 14, but only as in Fed. Reg., not Stat.).
— Amdt. XXIII: 74 Stat. 1057 (Const. Anno., p. 40, n. 15) and 75 Stat. 847 (certification referred to in Const. Anno., p. 40, n. 15, but only as in Fed. Reg., not Stat.).
— Amdt. XXIV: 76 Stat. 1259 (Const. Anno., p. 41, n. 16) and 79 Stat. 1327 (certification referred to in Const. Anno., p. 41, n. 16, but only as in Fed. Reg., not Stat.).
— Amdt. XXV: 79 Stat. 1327 and 81 Stat. 983–984 (neither rendition cited in Const. Anno., p. 41, n. 17; certification referred to in Const. Anno., p. 41, n. 16, but only as in Fed. Reg., not Stat.).
— Amdt. XXVI: 85 Stat. 825 (Const. Anno., p. 43, n. 18) and 85 Stat. 829 (certification referred to in Const. Anno., p. 43, n. 18, but only as in Fed. Reg., not Stat.).
— Amdt. XXVII: 1 Stat. 97 (Const. Anno., p. 44, n. 19) and 106 Stat. 5146 (proclamation referred to in Const. Anno., p. 44, n. 19, but only as in Fed. Reg. and Cong. Rec., not Stat.).
As to the Bill of Rights, the language of the general heading gives the linguistic appearance of being part of the original ratification and not a subsequent editorial addition. As such, it is incorrectly phrased. Were the phrasing to conform to the original Constitutional language, its use in this context would still be in error, in that it describes a method of ratification not descriptive of all amendments. Further, it is also in error in suggesting that the amendments are in addition to the Constitution. While it acknowledges that amendments amend the Constitution, they are not in addition to it, but are part of it. They are in addition to the original Constitution, but not in addition to the whole Constitution. However, it is not error to quote the original language that was on the sheet containing the same proposed amendments, as long as the fact of quoting is clear.
U.S. Code Cong. & Admin. News:
Regarding Amendment XXVI, 1971 U.S.C.C.A.N. 929, the Contents table, id., at p. V, erroneously cites the starting page as 947, rather than 927.
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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.
Revisions: Copyright © 2004 Nick Levinson
Balance: Copyright © 2003 Nick Levinson
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