Parsing the Seventeenth Amendment

Norman Williams raises an interesting issue in interpreting the Seventeenth Amendment. Here’s the relevant passage:

When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

Note that:

  • “Vacancies” is always plural.
  • “Representation” is singular .
  • “Any state” is always singular, and so is “such state.”
  • “Executive authority, “legislature,” and “executive thereof” are singular.
  • “Writs of election” and “appointments” are plural.

Williams argues that the plural use of “appointments” suggests that a governor, empowered by the legislature to make an appointment to fill a Senate vacancy, is in fact empowered to make multiple appointments. Thus—here comes the punch line—once Blagojevich is impeached and removed from office, his successor will be able to make another appointment to fill Barack Obamas Senate seat. This second appointee would therefore simply replace Burris, making the whole problem go away.

Howard Wasserman takes this argument apart by pointing out that “vacancies” is also plural. Thus, the “appointments” simply mirror the “vacancies,” and no such inference from the use of the plural is warranted.

Williams then claims that the text would have been unambiguous in requiring only one appointment if it had said “a temporary appointment until the people fill the vacancies by election,” so the choice not to say that must be meaningful. The counter to that argument, however, is that “a temporary appointment” would (by the same kind of reasoning) be telling us that the governor is only allowed to make one appointment, even when there are two vacancies.

In fact, there’s an even more striking reading of the Amendment, one that Wasserman passes over as “unlikely” and Williams doesn’t even mention. If “vacancies” is plural but “state” is singular, why are we even bothering with an appointment to fill Obama’s seat? Dick Durbin is still in office; Illinois only has one “vacancy.”

I can even spin out a story about why this is the most structurally plausible reading. The point of this passage of the Seventeenth Amendment is to make sure that no state is wholly unrepresented in the Senate, I’d say. Being down a Senator is acceptable, because the other can speak for the state. Only when the state is down both Senators does the election-or-appointment clause kick in.

This argument has got to be wrong, but its wrongness is no longer a matter of the kinds of textual exegesis or democratic-republican first-principles you see in so many constitutional arguments. This is why I hate most modern constitutional law scholarship that seeks to interpret particular provisions. Having relied on such profoundly junky forms of argument, it no longer has the intellectual purchase to reject obviously fallacious counter-arguments.

I know just enough linguistics to know that lawyers can quickly get out of their depth when they try to make linguistic arguments about legal texts. When a scholar with actual linguistic training looks at a disputed phrase, she doesn’t see two possible meanings; she sees nine. I would be interested in hearing from any linguists in the readership who could give an analysis of the number of acceptable readings of this passage. It’s been too long since my own computational linguistics course for me to do this properly myself, but I’d note the following:

  • Does the scope of “when” run to the entire sentence, or only through the colon?
  • I’m inclined to say that any reading in which “the vacancies” in the second half doesn’t refer back to “vacancies” in the first should be starred.
  • In the second half, “as the legislature may direct” is susceptible of both high and low attachment.
  • We also need to decide where to attach the entire second half; perhaps the executive authority should only issue writs of election if the legislature of the state isn’t allowed to empower the executive to make appointments.
  • Should we imply an “authority” to follow the second “executive,” or treat the second occurrence as a noun? If the latter, perhaps they need not refer to the same thing.
  • Presumably, “writs of election” don’t in and of themselves “fill such vacancies,” or we could have the Senior Writ from the Great State of Illinois.
  • “Any state” appears twice; are you certain that both instances refer to the same state?