A word to the wise | Opinion

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It has been said that punctuation “provides the road signs placed along the highway of our communication to control speeds, provide directions, and prevent head-on collisions. A period has the unblinking finality of a red light; the comma is a flashing yellow light that asks us only to slow down; and the semicolon is a stop sign that tells us to ease gradually to a halt, before gradually starting up again.”  Pico Iyer, In Praise of the Humble Comma, Time magazine, June 13, 1988. I suppose a colon might mean “pull over and pay attention.”

A nineteenth century grammarian, Richard A. Proctor, referred to punctuation marks as “humble soldiers … which will obey an unskillful general as well as a capable one. When once the order is given, they proceed to execute it, whether for good or ill; theirs not to reason why.”  Punctation – How Considered in the Law, The Central Law Journal, Vol. 45 (1897). One might now question whether they are really “humble soldiers.”

In 2017, litigation concerning overtime pay for truck drivers in Maine hinged entirely on a debate concerning the Oxford comma, the most polarizing of punctuation marks. Three truck drivers sued Oakhurst Dairy, seeking overtime pay that they had been denied. Maine law required that workers be paid 1.5 times their normal rate for each hour worked after 40 hours, but it carved out exemptions. The statute also said that overtime rules did not apply to employees involved in “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of agricultural produce, meat and fish products and perishable foods.”

Delivery drivers distributed perishable foods, but they did not pack the boxes themselves. The First Circuit decided that, had there been a comma after “shipment,” it might have been clear that the law exempted the distribution of perishable foods. It ruled, however, that the absence of a comma produced enough uncertainty to rule in favor of the truckers. Subsequently, the drivers obtained a judgment of ten million dollars. O’Connor v. Oakhurst Diary, 851 F.3d 69 (1st Cir. 2017).

Concerns about punctuation go back long before that. In 1778, as the Constitutional Convention was considering the General Welfare Clause, the drafters sent the proposed text to the Committee of Style. This group, which included Alexander Hamilton and James Madison, was charged with ensuring that the language met the requirements of good grammar. The Committee recommended replacing a certain comma with a semicolon, which they hoped would significantly expand the scope of the provision. The Convention rejected the recommendation and decided to leave the comma where it was. See The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution, Michigan Law Review, Vol. 120 (2021).

The first recorded reference to punctuation occurred shortly thereafter. The case involved the statements of a gentlemen who announced that he was happier under the rule of the English than under the current government. He was charged with violating a statute that made it a crime to publicly espouse returning to English control. The Court found the text of the statute to be “inaccurately penned” and that it could only be “rendered perspicuous and intelligible by expunging the semicolon.” Under this interpretation, the defendant was found guilty of treason. Respublica v. Weidle, 2 U.S. 88, 2 Dall. 88 (1781).

In 1818, the Court was required to interpret the statute which provided that “if any persons shall commit upon the high seas murder or robbery or any other offense which, if committed in the body of a county, would be punishable with death, … and such person shall, upon conviction thereof, suffer death.”  The question was whether the crime of robbery at sea was to be included and be punishable by death. Justice Johnson observed that “as singular as it may appear, it is the fact in this case that these men’s lives may depend upon a comma.” He suggested that the answer to that question would be made clear by expunging all commas. The Court agreed and held that the defendants could not be sentenced to death. United States v Palmer, 16 U.S. 610 (1818).

In a case involving the application of a statute taxing imports, the Court addressed a sentence that included the words “glass bottles or jars filled with articles not otherwise provided for.”  It noted that there was no comma between “jars” and “filled” or between “articles” and “not.” The Court ruled that the sentence must be read as if there were a comma in each place. Schmidt v Badge, 107 U.S. 85 (1883).

Shortly thereafter, the Court again interposed an absent comma, this time in legislation addressing the rights of Native Americans. The issue was whether certain cases originating in the tribal courts could be reviewed by the Supreme Court: “Appeals shall be allowed from the United States courts in the Indian Territory direct to the Supreme Court of the United States to either party, in all citizenship cases, and in all cases between either of the Five Civilized Tribes and the United States involving the constitutionality or validity of any legislation affecting citizenship …”

The Court noted that the language under consideration was obscure, and “if the comma after the words ‘all citizenship cases’ were omitted, or if a comma were inserted after the words ‘the United States,’ that obscurity would practically disappear.” Stephens v. Cherokee Nation, 174 U.S. 445 (1899).

Since that time, there have been very few cases in which the Court has interpreted a statute as though it had a comma or by ignoring the presence of one. Whether Strunk’s The Elements of Style, published in 1920, caused legislators to pay more attention to punctuation is an open question.

Wade Eaton served as an assistant attorney general and is a former partner at Chamberlain D’Amanda in Rochester.