The U.S. Constitution, reverence and respect for which are inversely proportional to its readership, is not an elegant document. Unlike the King James Version of the bible (another document more respected than read), the Constitution displays very little eloquence, elegance, or poetry. It is a plodding, prosaic document whose language often betrays its contentious, compromise-laden creation process.
The Body of the Constitution
Needless to say, the Constitution is riddled with passive constructions, the majority of them with unexpressed agents. Once we get past the comparatively eloquent—and active-voiced—preamble (We the People of the United States…), we find ourselves immersed in a sea of passivity.
Article I, section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives….[We’ll Return to Article I later.]
Article 2, section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:…
Article 3, section 1. The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish….
You get the picture. Now, the main body of the Constitution is no longer entirely in effect; the states and legislatures have introduced and passed 27 amendments to the original articles (so far), which have altered and updated the original document as times have changed and U.S. citizens have had the opportunity to reconsider many original provisions. The first ten of these amendments are called The Bill of Rights. These are among the most important, and controversial, documents in American government and politics.
The Bill of Rights
The amendment process began almost concurrently with the composition of the original document. The first ten amendments were part of the package agreed upon by the Framers that was submitted for ratification by the first Congress assembled after the adoption of the new Constitution. It was the intent of the Framers to specify the key rights that citizens of the new nation were entitled to possess.
Unfortunately, the amendment writers were no more gifted as writers than the original bunch. Some of our amendments are models of confusion. Consider, for example, the well known First Amendment, which contains exactly one sentence—but what a sentence!
Amendment I. 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.
We are so used to quoting snippets from this amendment that we do not often notice how muddled the English is. The most that can be said of this lead-off sentence is that it is written in the active voice; beyond that, we sense that it forbids Congress from trampling on certain individual rights. However, the message of the amendment is obscured and diluted because the grammar of the sentence is convoluted. Let’s take a close look.
The sentence begins simply enough with a subject–verb–direct object, plus a negating adjective:
but after word number 5 the sentence devolves into a morass of seemingly random constructions and murky syntax. Three participles are followed by a gaggle of prepositional phrases and a couple of infinitives. By the time we get to “or the right,” we have pretty much lost our way. Where does this phrase come from, and to what does it relate? The final straw is “and to petition”; this seems like an afterthought.
Just try to diagram this sentence. I did, and it nearly cost me my sanity.
Here is my version. I had to distort the normal shape of a diagrammed sentence just to fit this sentence’s 45 words and convoluted structure onto the printed page.
It is only by diagramming this awkward sentence that I managed to unravel its underlying syntax, which in turn revealed its meaning and logic. Through the diagram, we can see that the entire tail of the sentence is based on a set of three participial phrases that modify the noun law (respecting, prohibiting, and abridging), each with a direct object of its own. Furthermore, one of the participles (abridging) sports a compound direct object (the nouns freedom and right). And the final direct object (right) is followed by a prepositional phrase (of the people) modified by two infinitive phrases (to assemble and to petition).The coda of this symphony consists of a prepositional phrase (of grievances) within a prepositional phrase (for a redress). Whew!
Another problem with this problematic sentence is that the antique punctuation gives misleading clues as to what phrase belongs with which idea. For example, it is only by diagramming the sentence that we can see that or the right grammatically depends on the participle abridging.
Now, I thump no bibles, but I have to admit that, compared to this amendment, Thou shalt not kill is admirably direct.
Amendments or Improvements?
Sometimes the relationship between the original Constitution and the amendments is one of improvement: An amendment corrects an untenable idea in the Constitution while simultaneously clarifying its language.
Let’s return to another part of the very first article of the original Constitution, first quoted above. This article famously includes a notoriously callous calculation of the value—using a wealth of passive constructions—of the life of each slave for purposes of representation and taxation:
Article I, section 2. …Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
Much later, the Thirteenth Amendment rendered this loathsome calculation null and void by making slavery illegal—and at the same time, it upgraded the language to a comparatively direct statement, with only one passive construction buried in a relative clause within a prepositional phrase. Remove the interpolation, as I have done by striking it through below, and you get a very straightforward sentence:
Amendment XIII, section 1. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place under their jurisdiction.
Similarly, the language of the next amendment, Amendment XIV, which extended citizenship to persons in the United States, is not only clear, but uncharacteristically devoid of passive constructions:
Amendment XIV, section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Perhaps the committees of politicians working on these two amendments received, consciously or otherwise, some subtle guidance from the president himself, a man named Lincoln who was known to turn a good phrase from time to time.
The language of the amendments, then, is in general no better than that penned by the original Framers, but sometimes it represents an attempt to redress a wrong that became apparent only after the passage of time.
The Worst Amendment of All?
Let me take one final example of poor language by the hallowed Framers of the Constitution (they are always spoken of with capital letters). This instance consists of a sentence that is not only grammatically abominable, but has generated a hellish controversy that plagues us today as citizens. It continues to bedevil the Supreme Court, which is stuck with the job of interpreting it. This is the Second Amendment.
Amendment II. 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.
Problem 1: Apparently unrelated parts. There are at least two grammatical problems with this amendment. The first is that the sentence contains two grammatically unlinked parts. The “sentence” contains 27 words, but the first 13 words have an ambiguous syntactical relationship with the last 14. The consequence of this is that there is no clear logical relationship between the two parts of the sentence.
Here is how the sentence has to be diagrammed:
Note the gap between the top half of the diagram and the bottom half. Grammatically, what we have in the first part of the sentence is an absolute construction, which is modeled on a Latin construction called the ablative absolute. An absolute construction is unrelated grammatically to the rest of a sentence; its link to the rest of the sentence is more holistic—it is supposed to modify the entire thought contained in the sentence.
Unfortunately, the holistic link in this case is itself not at all clear, with the result that the interpretation of the entire amendment is hopelessly muddled. The issue of who possesses the uninfringeable right to keep and bear arms—the militia? the states that muster militias? the people in well-regulated militias? the people in general?—is left unclear because of the presence of the absolute.
Absolute constructions are rare today, and are generally frowned on by grammarians, but they were more common in the 18th century, when the second amendment was composed. Still, this particular example is a singularly muddled construction, and the interpreters of the Constitution have been laboring under its ineptitude since the day it was penned.
Problem 2: A passive without an agent. The second most damaging flaw in the amendment is that the main clause of the sentence is in the passive voice—and the agent of the predicate (shall not be infringed) is not expressed.
Perhaps the Framers meant that no State could infringe the individual right to bear arms, or that the United States as a whole could not infringe it. Their passive construction represents a missed opportunity to be clear (or an intentional opportunity to be unclear). All that appears to be manifestly clear is the existence of some kind of non-infringeable right.
The grammar of today. Today, a participial construction, such as being necessary to the security of the State, would be attached to a noun that it is a grammatical part of a sentence—usually the subject. In such a construction, the participle would usually be placed next to the noun it modifies. If the Framers had done this, the amendment would be different—clearer, but different. Here are a couple of possible constructions.
Interpretation 1: A tight construction. For example, the second amendment participial construction today might be part of this sentence, in which the right to bear arms is severely restricted to militias:
A well regulated militia, being necessary to the security of the State, shall have the right to store and provide arms to its members in the event of need, and this right shall not be infringed by any governmental body.
Interpretation 2: A loose construction. However, if we simply ignore the first part of the amendment, as many of today’s interpreters wish us to do, the second part clearly seems to vest the right to keep and bear arms in the people. In this part, the Framers seem to state that people—not just States or militias—have the right to keep and bear arms, and that this right is not to be infringed.
Under this sort of interpretation, the amendment might have been worded like this:
All citizens of the United States shall have the right to keep and bear arms, and this right shall not be infringed by any governmental body.
To limit or to explain? But if this is what the Framers wanted—if they had wanted to cede the right to bear arms to all persons, regardless of membership in a militia—why mention the militia at all? The presence of the first 13 words, that damn absolute construction, must have had a purpose in the minds of the Framers. The mention of the militia must have been meant either to explain or to limit the individual ownership right stated in the second part of the amendment.
Limiting. If the purpose was to limit the individual ownership right, perhaps this would be a better wording for the second amendment:
All citizens of the United States who are members of a well regulated militia shall have the right to keep and bear arms, and this right shall not be infringed by any governmental body.
Explaining. But if the purpose was to explain the individual ownership right, perhaps this would be a better wording:
Because States need well regulated militias, their citizens shall have the right to keep and bear arms, which shall be placed at the service of those militias upon need established by the States or the United States as a whole. The right of individuals to keep and bear arms for this or other purposes shall not be infringed by any governmental body.
Quite simply, we do not know what the Framers intended. In fact, what is codified in this ambiguous amendment may well be the Framers’ own ambiguity. It seems pretty clear to me that the second amendment is not the product of consensus among the Framers.
And we are stuck with their dithering.