“Will” versus “shall” in the Constitution

Plain Language

shallHere’s a question I received from Uthaclena.

I am told that there is a Constitutional difference between the words “shall” and “will.” Since you took PoliSci, do you know what that difference is?

I must admit I had had never heard this. So I decided to look at the document itself. The word will shows up about four times. Twice, interestingly, it appears a very familiar sentence. “I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Whereas shall can be found over 300 times, starting in Article 1, 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.” In fact, shall appears in every part of the Constitution except the Preamble and Amedment X.

Compare and contrast

Does this suggest a differential of obligation in these two examples? Probably not. As the Wikipedia notes: “Historically, prescriptive grammar stated that, when expressing pure futurity (without any additional meaning such as desire or command), shall was to be used when the subject was in the first person, and will in other cases.”

Thus, the Simple Future Tense with no assertion of intention is I/we shall but you/he/she/it will. “I shall go to the store. She will go too.” Whereas Simple Future Tense with an assertion is more pointed. And the words are reversed. I/we will but you/he/she/it shall. “I will survive.” “He shall clean his room if he wants to go to the party.” “Thou shalt not kill.”

The phrases “I will faithfully execute…” and “All… Powers… shall be granted…” are both using Simple Future Tense with an assertion. Therefore, they are both indicating something mandatory. Got that?

Attorneys!

In common parlance, will has all but replaced shall altogether. From the Wikipedia: “Shall is… still widely used in bureaucratic documents, especially documents written by lawyers. Owing to heavy misuse, its meaning can be ambiguous and the United States government’s Plain Language group advises writers not to use the word at all.” Attorneys and plain language? What a concept!

“Other legal drafting experts, including Plain Language advocates, argue that while shall can be ambiguous in statutes (which most of the cited litigation on the word’s interpretation involves), court rules, and consumer contracts, that reasoning does not apply to the language of business contracts. These experts recommend using shall but only to impose an obligation on a contractual party that is the subject of the sentence, i.e., to convey the meaning ‘hereby has a duty to.'”

Here’s more about will versus shall here and here and here.