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.
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.