Monday, July 19, 2010
Nora Tillman and Seth Barrett Tillman have authored a short (8 pages, lots of footnotes, VERY quick and easy to read) article called "A Fragment on Shall and May." It will be published in a future issue of the American Journal of Legal History.
They examine the Constitution's use of the verbs "shall" and "may" (and "will") and suggest that the American English of the founding generation was a more capacious language than its modern successor. As they explain in the article, 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.