INTRODUCTION :: Take another look at the Fifth Amendment. Look carefully. If you read it with an eye toward punctuation, you will notice that the Amendment itself is one long and complex sentence; you will notice that it contains a number of restrictions on governmental power and that those restrictions seem to be independent and separated by three semicolons. What you may not immediately notice, however, is that the Self-Incrimination Clause runs right into the Due Process Clause, with only a comma between them. If read under a grammatical microscope, the Self- Incrimination Clause is properly susceptible to this startling interpretation: “[N]or shall [any person] be compelled in any criminal case to be a witness against himself . . . without due process of law.”
Would such an interpretation allow the state to compel incriminating testimony as long as a certain amount of requisite process is provided? While many on the Court have questioned the usefulness or justice of the privilege against self- incrimination, the Court has never considered that the original intent of the Founders, as expressed in the language of the Amendment, was to allow for the questioning of criminal defendants. Considering the years of settled constitutional jurisprudence concerning the Fifth Amendment, one is tempted to disregard such a hypothesis immediately, casting aside any such inquiry as foolish and irrelevant. What one might not know, however, is that this interpretation is not without its evidence. For instance, contemporary Maryland’s Declaration of Rights surprisingly stated that “no man ought to be compelled to give evidence against himself . . . but in such cases as have been usually practised in this state, or may hereafter be directed by the legislature.” With both grammatical and precedential evidence behind it, this reinterpretation of the Fifth Amendment becomes much less easy to dismiss.
Regardless, this Note will not seek or encourage any change in Fifth Amendment jurisprudence. Instead, the Fifth Amendment will serve as an example-a case study-to prove a point about the way the modern reader often misunderstands the text of the Constitution and the Bill of Rights. It will guide the reader through the eighteenth- century world of grammar, and most specifically, punctuation; it is a world not completely unlike our own, but with many particular and peculiar ways.
For those who believe in “[t]aking [constitutional] text and structure really seriously,” they also ought to believe that the meaning of the Constitution can depend upon how punctuation is understood to operate. The idea of this Note is to consider what many have missed-that the punctuation of the Constitution and the Bill of Rights does not operate under the same rules and governing concepts employed today, and that this discrepancy in usage can have serious consequences for contemporary constitutional interpretation.
To that end, Part II of this Note will provide an overview of the punctuational history of the Fifth Amendment, laying a foundation for further analysis. Then, in Part III, it will delve into the world of mid- to late-eighteenth-century punctuation and style, explaining the significant differences between now and then. Part IV will apply historical punctuation norms to the Fifth Amendment and attempt to make sense out of the seemingly inexplicable. Part V will include a brief selection of other strangely punctuated passages in the Constitution that this Note will argue are not so strange after all. Finally, Part VI will conclude by suggesting the importance and applicability of these observations to any interpretive philosophy of the Constitution.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital