Tuesday, June 15, 2010

Mother (Constitution), May, Shall, or Will I?

Nora Rotter Tillman and Seth Barrett Tillman have posted A Fragment on Shall and May, which is forthcoming in the American Journal of Legal History (2010-11). The authors describe “this short paper” as a comment “on the Constitution's use of the verbs shall and may (and will).” It commences:
Recently Professors Randy E. Barnett and Sotirios Barber, two commentators with very different views with regard to how the United States Constitution should be interpreted, have expressed the view that "words have not, for the most part, changed meaning [since 1787]. Most of the meanings [of the words of the Constitution] have not been changed.” We suggest that the American English of the founding generation was a more capacious language than its modern successor and that which came into being post-Noah Webster's first dictionary and grade school primer, A Grammatical Institute of the English Language, first published in 1783. As we explain more fully below, where a word once had multiple meanings, but only one variant is now remembered and understood, we may be seriously mistaken when we ascribe near certainty to our understanding of how a constitutional term was used.