Commas, constitutional grammar, and the straight-face test: what if Conan the grammarian were a strict textualist?

• Author: Smith, Peter Jeremy

On May 8, 1998, former United States Senator Jennings Randolph of West Virginia died at the age of 96. The obituary that The New York Times wrote for Mr. Randolph focused on the Senator's role as author of the Twenty-sixth Amendment, which, according to the Times, was "the amendment giving 18-year-olds the right to vote."(1) Although Mr. Randolph's effort to pass a constitutional amendment lowering the voting age began in 1942, when he was a member of the House of Representatives, the Amendment did not become part of the Constitution until July 1971. Despite Mr. Randolph's early and persistent advocacy of an amendment that would lower the voting age to eighteen, the nation apparently did not perceive a need for such an amendment until 1970, when the Supreme Court decided Oregon v. Mitchell.(2)

Although Mr. Randolph eloquently defended his decades-long effort to lower the voting age from twenty-one to eighteen--he once stated, "I believe that our young people possess a great social conscience, are perplexed by the injustices which exist in the world, and are anxious to rectify these ills"(3)--his draftsmanship of the Amendment left something to be desired, grammatically speaking. The Twenty-sixth Amendment to the United States Constitution provides:

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age. Section 2. The Congress shall have power to enforce this article by appropriate legislation. Although there is little doubt among lawyers and laypersons alike that the Twenty-sixth Amendment grants the franchise to all otherwise-qualified United States citizens who are eighteen years old or older,(4) read literally the Amendment means something quite different. Read using conventional rules of English grammar, Section 1 of the Twenty-sixth Amendment does two things: first, it defines United States citizenship by age rather than birthplace or naturalization; and second, it prohibits denial of the franchise to those citizens on the basis of age. Quite astonishingly, the Amendment, when read literally, redefines the concept of citizenship established by the first clause of Section 1 of the Fourteenth Amendment, which provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," by referring to the class of United States citizens as those persons "who are eighteen years of age or older."

The fundamental grammatical error in the Twenty-sixth Amendment is the use of a nonrestrictive clause instead of a restrictive clause. A nonrestrictive clause is "one that does not serve to identify or define the antecedent noun,"(5) but rather merely "adds information about the person, thing, or idea to which the phrase or clause refers."(6) According to Strunk and White, because authors must "[e]nclose parenthetic expressions between commas"(7) and because "[n]onrestrictive relative clauses are parenthetic,"(8) nonrestrictive clauses must be set off by commas.(9) Strunk and White provide the following examples:

The audience, which had at first been indifferent, became more and more interested. In 1769, when Napoleon was born, Corsica had but recently been acquired by France. Nether Stowey, where Coleridge wrote The Rime of the Ancient Mariner, is a few miles from Bridgewater. They explain:

In these sentences, the clauses introduced by which, when, and where are nonrestrictive; they do not limit or define, they merely add something.... [Each] clause adds, parenthetically, a statement supplementing that in the main clause. Each of the three sentences is a combination of two statements that might have been made independently.(10) The comma rule for nonrestrictive relative clauses is well established in modern English grammar.(11)

By setting off with commas the phrase "who are eighteen years of age or older," then, the framers of the Twenty-sixth Amendment rendered that clause nonrestrictive. Because the clause is nonrestrictive, the grammatically savvy reader should conclude that the clause "is not essential to complete the meaning of [the] sentence," but rather simply "gives added information about the word it modifies."(12) The word (or phrase) that it modifies, of course, is "citizens of the United States."(13) Therefore, read under conventional rules of English grammar (and with deliberate indifference to history and purpose), Section 1 of the Twenty-sixth Amendment does not limit its own application to the subset of United States citizens who happen to be eighteen years of age or older, but rather defines--by adding information parenthetically--the entire class of United States citizens as those persons who are at least eighteen years old. The Amendment then provides that those persons cannot be denied the right to vote. This definition of citizenship stands in stark contrast to that provided in the first clause of Section 1 of the Fourteenth Amendment, which provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The Fourteenth Amendment's definition of citizenship, which was intended expressly to overrule the Dred Scott(14) decision, is a foundation of modern American constitutional democracy.

There is little doubt, of course, that the Twenty-sixth Amendment was not intended to repeal the citizenship clause of the Fourteenth Amendment. It is well established in legal doctrine, as well as in conventional wisdom, that Congress and the people of the states, in ratifying the Twenty-sixth Amendment, intended to bestow the franchise upon all otherwise-qualified citizens who are at least eighteen years old. Given the overwhelming historical record, we may conclude that the drafters of the Amendment inadvertently set off as a nonrestrictive clause the phrase "who are eighteen years of age or older" (and that no grammarians objected loudly enough to encourage Congress to eliminate the commas).

The drafters of the Amendment should have used a restrictive relative clause. A restrictive clause is "one that is necessary to identify fully the person, thing, or idea to which the clause refers."(15) Put another way, "A restrictive clause is a clause that is necessary to complete the meaning of the sentence because the clause identifies the word it modifies. A restrictive clause cannot be left out of a sentence, whereas a nonrestrictive clause can be."(16) As the Texas Law Review's Manual on Style explains,

The author's intention determines the correct usage. If an author wants the information contained in the relative clause to define the modified word or clause, or to limit the sense in which the modified word or clause is used, the modifying phrase or clause is restrictive.(17) A restrictive clause is essential to the meaning of the sentence because if the author leaves the clause out, then the meaning of the sentence is changed. Strunk and White provide the following example: "People who live in glass houses shouldn't throw."(18) stones. They explain that in this example, "the clause introduced by who does serve to tell which people are meant; the sentence, unlike [a] sentence [that contains a nonrestrictive clause], cannot be split into two independent statements."(19) Because restrictive clauses are necessary "to identify fully the person, thing, or idea to which the clause refers,"(20) and thus by definition are not merely parenthetic, "[r]estrictive clauses are never set off by commas."(21)

In light of the circumstances that led to the enactment of the Twenty-sixth Amendment, we can easily conclude that the drafters of the Amendment intended it to protect only those citizens who are at least eighteen years old from discrimination on the basis of age in the exercise of the franchise. But to accomplish this goal--to limit the applicability of the Amendment to such a subset of United States citizens--the drafters should have used a restrictive clause. The phrase "who are eighteen years of age or older" was intended to tell which citizens, out of the larger group of the American polity, were meant; if the phrase were omitted from the text, then the meaning of the Amendment would be quite different. Without the clause, it would violate the Constitution to deny the right to vote to a four-year-old child. Because the drafters clearly did not intend to establish the franchise for all citizens, regardless of age, the relative clause "who are eighteen years of age or older" plainly is "necessary to identify fully the person, thing, or idea to which the clause refers";(22) it is "necessary to complete the meaning of the sentence."(23) The clause thus should not be set off by commas.

If Mr. Jennings had paid close attention to the rules of grammar, then Section 1 of the Twenty-sixth Amendment likely would have read:

The right of citizens of the United States who are eighteen years of age or older to vote shall not be denied or abridged by the United States or by any State on account of age. Although this phrasing would not be without its own minor grammatical pitfalls,(24) it at least would not, as does the present Amendment, suggest that only persons who are eighteen years of age or older qualify as citizens of the United States.(25)

On May 13, 1912, in response to Progressive-era pressure to democratize further the national legislature, the Sixty-second Congress proposed the Seventeenth Amendment to provide, among other things, for the direct election of Senators.(26) On May 31, 1913, after the requisite number of states had approved the Amendment, the Secretary of State declared the Amendment to have been ratified. The Seventeenth Amendment provides in part:

The Senate of the United States shall be composed of two Senators from each State, elected by...