A peculiar use of "shall" in North Carolina's constitution, Art. VI
Article VI of North Carolina's constitution from 1971 contains a provision whose constitutionality is being discussed over at law SE.
Section 8 starts
Sec. 8. Disqualifications for office.
The following persons shall be disqualified for office:
First, any person who shall deny the being of Almighty God.
I stumbled over this use of shall in shall deny. In law texts shall is used in the sense of definition 3b in the Merriam-Webster entry:
—used in laws, regulations, or directives to express what is mandatory
Article VI itself provides a plethora of examples for this usage. The following is an exhaustive list of the occurrences of shall. They all stipulate conditions and a mandatory consequence.
- Section 1: "Every person born in the United States [...]
shall be entitled to vote [...]." - Section 2: "Any person who has resided in the State of North Carolina for one year [...] preceding an election, and possesses the other qualifications set out in this Article
shall be entitled to vote [...]." - Section 3: "No person adjudged guilty of a felony [...]
shall be permitted to vote. - Section 4: "Voters offering to vote in person
shall present photographic identification before voting." - Section 5: "A contested election for any office established by Article III of this Constitution
shall be determined by joint ballot." - Section 6: "Every qualified voter in North Carolina who is 21 years of age [...]
shall be eligible for election." - Section 7: "Before entering upon the duties of an office, a person elected or appointed to the office
shall take and subscribe the following oath:" - Section 8: "The following persons shall be disqualified for office:
First, any person who shall deny the being of Almighty God.
Second, [...] any person who is not qualified to vote in an election for that office. - Section 9 (1): "[... N]o person who holds any office [...
shall be eligible to hold any office in this State that is filled by election by the people." - Section 9 (2): "The provisions of this Section shall not prohibit any officer of the military forces of the State from holding concurrently another office."
- Section 10: "[...] all officers in this State [...] shall hold their positions until other appointments are made [...]."
The use of shall in section 8, sentence 2 is peculiar and stands out against all other sections, and surely most laws in general, because it uses shall to specify the condition of the legal consequence.
This use of shall seems out of place. It surely cannot "express a command". The other uses suggested by Merriam-Webster are either a variant of expectation or statement about the future, expressing determination or, archaic, must or want.
The only conceivable meaning is to express plain or likely "futurity". But it seems odd to define a condition as a futurity; as is evident from the quotes, the law is worded from a point in time when the legal situation occurs: Can I be elected? Not if you cannot vote (present tense). Yes, if you are born in the U.S. This is a good example how out of place "shall" is. Imagine section 1 read "Every person that shall be born in the United States [...] shall be entitled to vote." No matter from which reference point this is considered a future, this would seem wrong:
- If the reference point in time is the enactment of the constitution it is a legal mistake because even people born in the past surely shall be electable.
- If the reference point is the election it's a mistake and a blooper: Nobody born after the election can vote; they aren't here yet. The same is true for somebody who "shall" deny the existence of the "Almighty God": What is this, Minority Report?
Is this usage indeed wrong?
The following persons shall be disqualified for office: First, any person who shall deny the being of Almighty God.
This use of “shall” is explained in the OED as
- In ... relative ... clauses denoting a future contingency, the future auxiliary is shall for all persons alike. (Where no ambiguity results, however, the present tense is commonly used for the future, and the perfect for the future-perfect; the use of shall, when not required for clearness, is apt to sound pedantic)
b. In relative clauses (where the antecedent denotes an as yet undetermined person or thing).
1794 A. Radcliffe Myst. of Udolpho IV. v. 86 I will lay all the spirits, that shall attack me, in the red sea.
1811 R. Southey Let. to G. C. Bedford 16 Feb. The minister who shall first become a believer in that book..will obtain a higher reputation than ever statesman did before him.
1874 R. Congreve Ess. 417 We extend our sympathies..to the unborn generations, which.. shall follow us on this earth.
(The 1811 quote is particularly apt as an example.)
With the disclaimer that "I am not a lawyer": My perception is that it's not about future so much as hypothetical.* Your Merriam-Webster quote already indicates that this legal use is a specialized use; everyday language might render most of the proscriptive shalls as must or similar. This sentence might be rendered something like "... any person who should deny..." (not in the proscriptive sense of should, but the hypothetical, meaning 1 in this M-W entry; that is, "any person who should happen to deny." In fact, M-W describes should as "the past tense of shall." Etymonline elaborates a bit more; the proscriptive sense of "I really should do my laundry" is an evolutionary artifact linking it to all these proscriptive shalls in the legal context.
* If we want to debate the theory that it's a future tense: As noted, this is not Minority Report, and the articles quoted operate in a kind of continuous theoretical "present." It's understood that they are in effect for perpetuity unless altered; it doesn't need to specify "every person who is or will be born in...." Many of the articles make use of past tense or participles to discuss events situated in the theoretical past relative to the application of the law in the theoretical present: "Any person adjudged guilty...." But the qualifications for office are not concerned with forecasting what the person "will" do after taking office, nor is this phrase at least concerned with what they've done in the past (apparently, anyone who has denied "the being of Almighty God" but recanted is fair game).