“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?


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.

For Constitution Day, please watch 13th

from 300,000 inmates in 1970 to over 2 million today

13th amendmentMy daughter has watched the documentary 13th (2016) about a half dozen times. She compelled me to watch it recently as well, and now I commend it to you.

13th refers to the 13th Amendment to the United States Constitution: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The problem is that section that is italicized section effectively meant that people, specifically black people, would be arrested on minor charges such as vagrancy or loitering, and ended up being leased out to industry. It was Slavery by Another Name.

This was followed by Jim Crow segregation and lynching, enhanced in no small part by D. W. Griffith’s film The Birth of a Nation (1915). The modern civil rights movement of the 1950s and 1960s arose from the death of Emmett Till. But it was stifled by the mass incarceration efforts of Presidents Nixon, Reagan and Clinton, which affected blacks disproportionately.

Even Newt Gingrich, the former Speaker of the House of Representatives, noted in the film that the much greater sentencing for crack, more often used by blacks, than for powder cocaine preferred by white people.

The country went from having about 300,000 inmates in 1970 to over 2 million today, about 40% black because of various sentencing guidelines. The US has 25% of the incarcerated in the world, though it has but 5% of the world’s population.

13th was directed and co-written by Ava DuVernay, who had directed Selma (2014). Participants include Michelle Alexander, Cory Booker, Angela Davis, Henry Louis Gates, Van Jones, Grover Norquist, Charles Rangel, Bryan Stevenson, and several others. Plus archival footage of Lee Atwater, and every President after JFK.

Watch 13th HERE (96 minutes). See the preview HERE.

Listen to:

Letter To The Free – Common ft. Bilal
Work Song – Nina Simone
Human – Rag’n’Bone Man

Sept. rambling: “I want you to panic”

Dustbury on Kim Kashkashian

1973 male entertainers
1973 benefit. Larry Karaszewski tweet: “We Are The World”. From HERE

Don’t Use These Free-Speech Arguments Ever Again

Follow-up to “How Should We Rewrite the Second Amendment?”

The spy in your wallet: Credit cards have a privacy problem

The Focus on 1619 as the Beginning of Slavery in the U.S. Damages Our Understanding of American History

The White Power Movement From Reagan to Trump

Pediatricians reveal that racism can negatively affect children’s health

#MeToo-era study says Women facing ‘massive increase in hostility’ in workplace

Government Cannot Select the Right Immigrants

On climate change, “I want you to panic”

Alaska’s Sea Ice Completely Melted for First Time in Recorded History

The legacy of ‘boys will be boys’ on American life

Trump is Abnormal, It’s His Superpower

Trump’s Scottish resort: Air Force crew made an odd stop on a routine trip

Dumber than a box of markers

Unions make us strong

I learn something from criticism because when it comes from sources you respect you always examine it and learn. – Maurice Strong

How Do You Decide What’s Right and Wrong?

In defense of reading the same book over and over again

The language rules we know – but don’t know we know

AP Stylebook Changes Hyphen Guidance, Ushering In Total Chaos

Outraged Rio de Janeiro, Brazil Mayor bans comic due to kiss; kiss plastered over international media. STORY

It’s OK to Cry

Appreciation: Valerie Harper and the timeless cool of Rhoda Morgenstern

Howie Morris would have been 100

‘Dustbury’ blogging pioneer Charles Hill completes final tour

Ken Levine: Meet Corporal Klinger – Jamie Farr

Mark Evanier: 100 things I learned about the comic book industry

Welcome to the World of Competitive Wiffle Ball

The new old people

Dustbury: Amusement is where you find it

How to Increase Your Laptop Battery Life

Now I Know: New York City’s Late Pass and The Man Who Beat the Scratch Lottery and The Crime-Busting Pizza Topping and Let There Be Lighght and The Man Who Beat the Scratch Lottery and The Russian Plot to Replicate the Moon and How Not To Use a Very Fast Internet Hookup

The Perfection of the Paper Clip

NOT ME: In Kibler, Police Chief Roger Green rescued an elderly woman from her flooded home about 4:30 a.m. Saturday


Sleep by Eric Whitacre – VOCES8

Dustbury: Several short works by György Kurtág, performed by Kim Kashkashian

Coverville: 1276: The Elvis Costello Cover Story and 1277: Cover Stories for Barry White and The Stranglers

It’s Quiet Uptown – Kelly Clarkson

2011 Tony Awards, hosted by Neil Patrick Harris. show close with a rap number summarizing the evening, written by Lin-Manuel Miranda and Tommy Kail

How Hamilton Works: 10 Reasons 10 Duel Commandments Is Amazing

Michael Kamen’s score for Highlander

Something – The Beatles: Take 39 /Instrumental/Strings Only and 2019 Mix

K-Chuck Radio: Taylor Swift’s not so new idea

Dustbury: An emo version of Baby Shark

Jazz Is a Music of Perseverance Against Racism and Capitalism

Guano birthright citizenship rhetoric

Even Paul Ryan says “you obviously cannot” end birthright citizenship via executive order.

birthrightAs you probably heard, the head of the regime says he will void birthright citizenship law through Executive Order.

Hmm, getting rid of part of the US Constitution by a stroke of his pen? It’s Section 1 of the 14th Amendment (1868) that gives automatic citizenship to children born on US soil, even if their parents aren’t citizens.

He said “he had always been told ‘that you needed a constitutional amendment to end birthright citizenship. Guess what? You don’t.”

“You can definitely do it with an Act of Congress… But now they’re saying I can do it just with an executive order. It’ll happen. With an executive order.'”

As someone from the Boston Globe put it, “US conservatives have suffered from ABDS (anchor baby derangement syndrome) for years, and have been trying to get rid of so-called birthright citizenship, even though it… was enacted by… Republicans trying to help freed slaves after the Civil War…” Or maybe because of that.

A few questions popped up:

Question 1: Is he lying about the history of birthright citizenship, or is he just ignorant?

Birthright citizenship Wasn’t Born in America. Blame Elizabeth I for his least-favorite policy.

Also, it is a hallmark of New World democracies – “Nearly every nation in the Western Hemisphere, including Canada, Brazil, Argentina, and Venezuela, offer some form of unconditional birthright citizenship to children born in-country.”

So his assertion, going back at least to 2015, “that the United States is ‘just about’ the only country ‘stupid enough’ to grant citizenship to all children born within its borders is easily proven false.”

Question 2: What are we talking about anyway? “You can be born into U.S. citizenship by being born in the United States—the principle known as jus soli, or ‘right of the soil.’ Most countries in the Americas feature jus soli citizenship. And you can also be born into U.S. citizenship by being born to U.S. citizens, even if you’re born abroad—a concept known as jus sanguinis, or ‘right of blood.'”

“The traditional interpretation means that people with diplomatic immunity like an ambassador, would not be subject to US law, so their offspring would not be citizens by birthright. The regime “wants to bend that to mean ‘illegal’ immigrants. It’s ridiculous because they are bound by our laws, clearly.”

“The majority view is that the words mean exactly what they say—a reading the U.S. Supreme Court agreed with in the 1898 case of United States v. Wong Kim Ark, in which it rejected a government attempt to deny citizenship to the child of Chinese immigrants.”

Question 3: Who the heck are “they” who are putting these ideas in his head? Initially, I assume it was a function of advisor Stephen Miller or maybe some crackpots at FOX. I discovered that his people are pretty good at finding folks on the fringes of academia.

“Peter H. Schuck… and Rogers M. Smith… have for years been beating the drum for the idea that the Fourteenth Amendment means something radically different from its historical meaning, permitting Congress to strip these children of their citizenship and potentially render them stateless. Though Schuck and Smith are respected, few other serious constitutional scholars have joined their parade.”

There are a few others. “Writing in The Washington Post, the former Trump White House aide Michael Anton has now proposed…an executive order [that] could specify to federal agencies that the children of noncitizens are not citizens.'”

“Anton is not one of the ‘great legal scholars, the top’ whose authority Trump has claimed… He gained notoriety during the presidential election by comparing the Hillary Clinton campaign to an al-Qaeda hijacking. Voting for Trump, he argued, was a meritorious act of destruction, the equivalent of forcing the Flight 93 hijackers to crash into the ground.”

The executive order on birthright citizenship would fail to address his stated concerns while undermining fundamental American ideals. Even the outgoing Speaker of the House Paul Ryan (R-WI) says “you obviously cannot do that.”

The only joy I got from this whole scenario is Borowitz satire: He Strips Citizenship from Children of Immigrants, Thus Disqualifying Himself from Presidency.

Earl Warren versus “people are corporations”

A leader of the Republican Party for more than a decade, Roscoe Conkling had even been nominated to the Supreme Court twice. He begged off both times, the second time after the Senate had confirmed him.

Earl WarrenSometime in 1973 or early 1974, I was in a class at the SUNY College of New Paltz. It was my only course, 15 credits, in political science, and, oddly, I don’t remember much about it except save for the fact that it was conducted by the late Ron Steinberg.

Except for one thing: we all got to meet retired US Supreme Court Chief Justice Earl Warren in his office in Washington, DC. And not a meet-and-greet but him talking with us for at least a half hour, and then the dozen or so of us able to ask him questions.

Earl Warren is the guy whose court made many monumental decisions between 1953 and 1969 when he retired.
They included:
*attempting to end segregation policies in public schools (Brown v. Board of Education)
*ending anti-miscegenation laws (Loving v. Virginia)
*ruling that the Constitution protects a general right to privacy (Griswold v. Connecticut)
*protecting the rights of the accused (Miranda v. Arizona)
*providing lawyers to the indigent (Gideon v. Wainwright)
*codifying one person, one vote redistricting (Baker v. Carr)
*freedom of the press (New York Times Co. v. Sullivan)

The question I had must have been stated ineloquently because he didn’t know what I was getting at. I was probably nervous. Finally, I asked him about the precedent of the Court considering corporation as people back in the late 19th century. He said that the Court got it wrong back then.

Earl Warren, who died in July 1974, would have appreciated this article, “‘Corporations Are People’ Is Built on an Incredible 19th-Century Lie: How a farcical series of events in the 1880s produced an enduring and controversial legal precedent.” It involved the Southern Pacific Railroad Company, “owned by the robber baron Leland Stanford,” and the corporation’s lawyer, Roscoe Conkling.

Former President Harry S. Truman applauded the newly-retired Warren in this January 1970 California Law Review article. To the point of my question, Truman wrote:

“I would suggest that it is at least symptomatic of a conservative in today’s society that [Warren] is deeply concerned with the faceless, seemingly randomly and capriciously directed activities of the gigantic institutions which influence the direction of modem life. Under this definition, a conservative is one who worries that the balance of power in this nation has shifted in favor of oversized corporations, government agencies, labor unions, universities, foundations, and institutionalized groups which draw together shifting combinations of some or all of these.”

Happy Constitution Day.