Friday, June 18, 2010

A Fragment on Shall and May

A Fragment on Shall and May, by Nora Rotter Tillman and Seth Barrett Tillman, is forthcoming in the American Journal of Legal History (circa 2010-2011) and is available for download at SSRN.
Abstract:
This short paper has some comments on the Constitution's use of the verbs shall and may (and will). 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, 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.