Typos, the 5th Amendment, the 25th Amendment, and Language Log already did it!

by Michael S. Kaplan, published on 2006/10/24 03:07 -04:00, original URI: http://blogs.msdn.com/b/michkap/archive/2006/10/24/867463.aspx

So old friend Andrea IM'ed me last night (yes, that Andrea).

She had apparently been watching West Wing reruns on Bravo, and found something that caught her eye....

The conversation went exactly like I type below as I copied it from the IM window, with her permission. :-)

Andrea: Is there really a typo in the US Constitution?

Me: Huh?

Andrea: It's a chat window, Michael. Repeating myself is not necessary.

Me: I think I need some context. Like maybe your source?

Andrea: Toby said on West Wing that he found a typo.

Me: You understand that this is a fictional show, right? :-)

Andrea: Yes, I do. Are you saying they made it up?

Me: This was from like the next to last episode of the show, I think. Is that the one you mean?

Andrea: Thats the one. Did they make it up?

Me: At the very end of the convo with CJ, I believe Toby makes a reference to Tom Merrill. Which is actually kind of funny, but only in a very obscure way that most people wouldn't get. Hang on, I'll find the text....

Ok, found it. I remember looking all this up after the episode. It was a fun in-joke that I doubt people got.

Andrea: Are you going to tell *me* about it? I don't even know who Tom Merrill is!

Me: He is a law professor. He had testified before the Senate that the Fifth amendment, claiming that the "Takings Clause", the text of which is "nor shall private property be taken for public use, without just compensation", does not describe a separate restriction of eminent domain on items that are "for public use".

Andrea: So where is the typo, exactly?

Me: Well, the problem is that something like half of the copies out there, a comma exists between the word "use" and the word "without".

Andrea: I admit English isn't my first language. But that doesn't sound any different to me.

Me: Ok, here is the link I saved to his testimony. Look at Myth #4:

Myth #4: The original understanding of the Takings Clause limits the use of eminent domain to cases of government ownership or public access.
Justice Thomas filed a separate dissenting opinion in Kelo, arguing that the Court should return to the original understanding of the Takings Clause, which he claimed limited eminent domain to acquisitions of property for the government or for actual use by the public. Justice Stevens did not respond to Justice Thomas’s opinion, which may have reinforced the impression in some circles that the Court’s decision was a clear departure from the original understanding.
Unfortunately, other than the language of the Takings Clause itself (“nor shall private property be taken for public use without just compensation”), there is virtually no direct evidence about what the Framers understood by the words “for public use.” The phrase modifies “taken,” and thus clearly establishes that the Takings Clause is about a subset of takings – those for public use as opposed to other possible types of takings. But this narrowing language does not necessarily mean that the Clause imposes an affirmative requirement that a taking must be for a “public use.” It is also possible that the Framers were simply describing the type of taking for which just compensation must be given – a taking of property by eminent domain as opposed to some other type of taking, such as a taking by tort or taxation. This reading would not, as Justice Thomas argued, render the words “surplusage.” No other words in the Clause tell us the just compensation requirement is about eminent domain (the term “eminent domain” did not enter constitutional discourse until sometime later). Moreover, for all his parsing of old dictionary definitions, Justice Thomas never explained why the prohibitory word “without” is placed before “just compensation” rather than before “public use” – a piece of textual evidence that seems to cut against the thesis that the Clause imposes a public use requirement.
Given the utter lack of direct evidence, the debate over original meaning probably comes down to whether the Framers understood the power of eminent domain from an “English” perspective, reflecting the views of Locke and Blackstone, or from a “continental” perspective, reflecting the views of natural rights thinkers such as Pufendorf, Grotius, and Vattel. The English perspective emphasized the importance of the property owner’s constructive consent to the taking through the owner’s representation in Parliament. If the Framers viewed takings this way, the most plausible interpretation of “for public use” is that it was just descriptive of the power of eminent domain, i.e., a taking of property authorized by the legislature. The continental perspective emphasized that eminent domain should be used only for certain types of public purposes. If the Framers viewed takings this way, the most plausible interpretation is that public use is an implied limitation on eminent domain. Since the Framers left no clues as to which body of thought was more influential in their thinking, the issue cannot be resolved with any certainty. But it would be hazardous to bet against the English perspective, which was almost certainly familiar to more participants in the ratification process.

Andrea: Hang on, Michael. Maybe I am reading this wrong, but "taken for public use without just compensation" does not sound different than "taken for public use, without just compensation". What does this have to do with anything?

Me: I didn't  claim it had anything to do with the issue Tom Merrill raised. My understanding was that he was kind of saying that had the phrasing been something like "taken, for public use, without just compensation" that the meaning would be different.

Andrea: So that's where the comma typo is?

Me: No, it isn't. But it is within a few words of it, which is why putting a call in to Tom Merrill is humor that is pretty subtle.

Andrea: Yes, that is *very* subtle.

Me: Well, they could have gone for a more visceral allusion, like a random case involving self gratification and putting a call in to Paul Reubens (Pee-wee Herman). But maybe that would have been too obvious.

Andrea: I'll say. {pause}

You know, punctuation was hardly a science back then.

Me: Also very true. Look at my blog -- typos a plenty, just thank Bob that I wasn't the constitutional transcriptionist?

Andrea: The whole country can probably be glad about that.

Me: Hey, I just found another typo reference in GoogleLive, this one in the 25th amendment. Look here for it -- a much more significant constitutional point if you ask me.

Andrea: {pause} I'll say! It is much easier to believe in a crisis based on a singular/plural mismatch than the lack of a comma. Too late for the constitutional issue. But maybe you should blog about the singular/plural thing?

Me: They already talked about it on Language Log. ["Singular they" mailbag]

Andrea: Maybe you could have a post about "Language Log already did it" or something?

Me: Nope, South Park already did it, see here: http://en.wikipedia.org/wiki/Simpsons_Already_Did_It

Andrea: Well, take the chat log from this conversation. Maybe you can make something of that.

It is unclear whether I have actually made something of it or not. I'll let you folks judge.

Maybe Andrea should get her own blog!


This post brought to you by (U+3255, a.k.a. CIRCLED NUMBER TWENTY FIVE)

Eman on 24 Oct 2006 3:28 AM:

Do you really type in IM with correct capitalization and punctuation? Or was this log really edited?

Michael S. Kaplan on 24 Oct 2006 3:45 AM:

Mostly I do, though I did fix spelling errors and probably fixed up a bit of capitalization (I did not want anyone to look less sophisticated than me just because they did not have chance to edit!).


Maurits [MSFT] on 24 Oct 2006 11:11 AM:

What did people call typos before typewriters, I wonder?

Michael S. Kaplan on 24 Oct 2006 11:33 AM:

Isn't associating them with typewriters a back formation? Typo is short for typographical error, I thought.... :-)

Kimmie on 28 Sep 2010 11:44 AM:

This is sumthing very childish I wouldn't advise anyone to read this stupid crap

referenced by

2008/05/22 It's a known fact (disputed but not disproven) that Clippy's removal from Office was due to Earl knocking up Scribble

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