LawProse Lesson #106

How did the jargonistic same — used as a pronoun — cause a crisis of presidential succession? Using same as a pronoun — as in acknowledging same or making note of same — is a primary symptom of legalese. And it’s imprecise legalese — the worst kind. When used as a pronoun, same can mean either the singular it or the plural they, and that can lead to ambiguity in interpretation. An ambiguous same in Article II of the U.S. Constitution once gave rise to a major legal question: Was John Tyler really the tenth president of the United States? In 1841, after speaking for two hours in the rain at his inauguration and contracting pneumonia, President William Henry Harrison died in office — barely a month into the ninth presidency of the United States. His vice president, John Tyler, became the new president. Or did he? The answer turned on the wording of Article II of the Constitution: “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.” But what, precisely, devolved: the office or the powers and duties of said office? Did John Tyler become the tenth president, or did he remain the vice president while having the powers and duties of the presidency? Using it or they or, better yet, office would have prevented the ambiguity. Senators debated the point for some time before Congress passed a resolution referring to Tyler as “the President of the United States.” But historians still debate the legal question. The same same caused a different problem in 1919 when President Woodrow Wilson suffered a stroke. The question was whether Wilson’s vice president should assume the office of president (effectively deposing the ailing Wilson) or only the duties and powers of the presidency (in case the elected president recovered before the end of his term). Ultimately, neither was done: the president’s wife, Edith, unofficially assumed her husband’s duties and powers until March 1921. In the field of textual interpretation, the so-called last-antecedent canon would resolve the issue favorably to Tyler and to all the other vice presidents who succeeded to the presidency. The last-antecedent canon states that a pronoun, relative pronoun, or demonstrative adjective generally refers to the nearest reasonable antecedent. In Article II, office is the nearest reasonable antecedent of same; the phrase powers and duties, though reasonable, is more remote. The ambiguity was finally eliminated in 1967. The 25th Amendment remedied it by providing that if the president dies, resigns, or is removed, “the Vice President shall become President.” If the president is disabled, the vice president assumes the office’s powers and duties as “acting president” for as long as the disability continues. The simplest way to prevent any ambiguity with same is to avoid using it as a pronoun altogether. Sources: Garner’s Modern American Usage 726 (3d ed. 2009). Garner’s Dictionary of Legal Usage 796 (3d ed. 2011). Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 144 (2012). David P. Currie, “His Accidency,” 5 Green Bag (2d series) 151, 154 (2002).