Farberm Daniel A., Constitutional Commentary
A symposium on the subject of "constitutional stupidities" appeared in these pages a while ago, in which some noted scholars offered their views as to the stupidest provision in the Constitution. But functionality and stupidity do not exhaust the universe of possibilities. There are also aspects of the constitutional text that, while taken for granted or ignored entirely, are a bit perplexing once they are considered. Their functional significance isn't obvious, and they may be fairly arbitrary accidents of drafting--but they might also have some significance that isn't immediately obvious.
A perusal of the constitutional text does, in any event, provide some occasions for puzzlement on the part of the late Twentieth Century reader. Doubtless there are more examples, and peculiarity is to some extent in the eyes of the beholder. What follows, at any rate, is a sampler of textual peculiarities in the eyes of at least one reader.
1. How did the "Preamble" get to be called that? It doesn't have a heading (at least, not in my copy of the Constitution), and unlike the normal preamble, it actually contains the key legally operative language of the entire document ("do ordain and establish this Constitution for the United States of America"). It might more properly be called the Enacting Clause of the Constitution (in which case we might view it as somewhat more important.)
2. Why did the Framers go to the trouble of specifying age limits for elected officials, a matter which they address in considerable detail? They didn't bother with other, equally relevant qualifications for office, such as literacy or lack of a criminal conviction. (Not to mention other characteristics that might have seemed relevant in the historical setting, like being propertied or being a white male. There isn't even anything precluding a "person held to service" from holding office.) Were they really worried that some district would send an eighteen-year-old to Congress? A friend tells us that there were age requirements for various offices under the Roman Republic. Is this another bow toward classicism, like the use of the term "Senate"?(1)
3. Why is the chief executive called the "president"? The Vice-President actually presides over something (the Senate), but what does the President preside over? (And why does the President have a special oath? And who "received ambassadors" under the Articles of Confederation, or did they just wander around trying to find someone to talk to?)
4. Instead of providing a list of the powers of the government of the United States, why did the drafters use the article on the legislature as the place to delimit federal power? Surely it would have been more logical to first set out the powers of the government, and then detail how they were divided between the branches. (Or is the implication that sovereignty reposes in the legislature, or perhaps instead that, absent the specification, the President would have had direct authority over these matters?) Another question about Article I: why are the limits on state power found there, rather than in Article IV?
5. What exactly is a "direct tax"? Why is it scarier than an indirect tax?
6. Some odd phrasings:
(a) Why does the Constitution connect citizenship with references to nature ("natural born citizen" and "naturalization")?
(b) The phrase "full faith and credit" is customarily used in municipal bonds to pledge the full taxing authority of the municipality. Which came first? Is there a historical connection between this and the language used in the Constitution about recognition of the laws of other states?
(c) Why is it "privileges and immunities" in one place, but "privileges or immunities" elsewhere? (Simply a matter of grammar?) And what did they think was the difference between a privilege and an immunity?
(d) Why does the appointments clause refer to the "courts of law" (a phrasing which is used nowhere else)? …