Prof. Johnson grades the Original Constitution a B-, Madison rolling over in his grave

October 2nd, 2009

Over at PrawfsBlawg, Professor Johnson, writes that the original Constitution drafted in Philadelphia is not that well written, and contains many scriveners errors and interlinations.

He points out one crucial error that I never noticed:

In Article I, Section 3, explaining Senate procedure upon the impeachment of the president, there is this doozy. The intended language is: “When the President of the United States is tried, the Chief Justice shall preside[.] The original uncorrected, verbless text is: “When the President of the United States the Chief Justice shall preside[.]”

How can you screw up and write something like that unless you are totally mentally wandering while doing it? This is the Constitution of the United States of America for crying out loud. You’d think you could focus. And if you can’t get it right the first time, then I say grab another sheet of parchment and start from the top of the page. Where is the craftsmanship?

Johnson references a total of four interlineations in the Constitution: “U.S. Const. art. I, § 2 (“the”); art. I, § 3 (“is tried,”); art. I, § 10 (“the” in two different places).” Also, Johnson blasts the drafter, Shallus for a shoddy job including “erasures, a misspelling, and wildly inconsistent capitalization”

As Johnson notes, “the federal district court for the District of Columbia, where the Constitution currently resides, has declared legal documents unenforceable on grounds of sloppiness.”

What’s a Textualist to do when the text of the Constitution is flawed? If you saw Scalia, the Textualist who holds the Constitution on his shoulders, if you saw that he stood, blood running down his chest, his knees buckling, his arms trembling but still trying to hold the text of the Constitution aloft with the last of his strength, and the greater his effort the heavier the Constitution bore down upon his shoulders – What would you tell him?