The Odd Clauses

by Jay Wexler

Cover image

Publisher: Beacon
Copyright: 2011
ISBN: 0-8070-0089-2
Format: Trade paperback
Pages: 193

Buy at Powell's Books

The subtitle of this book summarizes it nicely: Understanding the Constitution through Ten of Its Most Curious Provisions. (The constitution in question is the United States Constitution.) It's a sort of popularization of US constitutional law, but rather than look at the most well-known and controversial parts, it takes a look at some of the odd side points, obscure clauses, or clauses that one rarely thinks about because they rarely appear in the news. This is partly a tour of curiosity aimed at those who like legal trivia, but it also provides, indirectly, a look at how constitutional law is made and debated, and at some of the burning concerns at the time of the writing that have since faded away. Sometimes why the concern has faded is as interesting as the original problem.

This is the sort of book whose table of contents provides a lot of insight into what you're getting. It has ten chapters, each devoted to a particular clause or amendment: incompatibility, weights and measures, recess appointments (one of the rare ones that has made the news), original jurisdiction, natural-born citizen (odd, but sadly now not at all obscure), letters of marque and reprisal, titles of nobility, bills of attainder, and the 3rd and 21st amendments. (For those who haven't memorized all the amendments to the US Constitution, the 3rd is the prohibition on quartering soldiers in private homes and the 21st is Prohibition, which here is examined not for its core intent but for the implications for federalism.)

As you can see, this is quite a selection, and while the clauses are often obscure, the issues raised by them are still generally quite active. There are some that were intensely controversial at the time of the original debate that are little more than amusing trivia at this point (the prohibition on officers of the United States taking titles of nobility), or have become so much a part of the structure of the government that people rarely given them a second thought (such as the incompatibility clause, which prohibits members of Congress from holding positions in the executive branch). But most of these clauses establish ground rules for the US government that are still quite current today, even if the legal terminology used at the time is no longer familiar.

A good example is the clause prohibiting bills of attainder, something that the writers of the US Constitution saw no need to define. A bill of attainder is an act of a legislature declaring a person guilty of a crime and assigning some punishment without trial. Framed that way, it seems like an obvious extension of the separation of powers system that the US government is constructed around, but unlikely to provoke much modern controversy. However, as Wexler explains quite lucidly, there's a reason why this clause is right next to the prohibition on ex post facto laws. While no one would stand for the US Congress declaring guilt on a matter of criminal law, it has written some startlingly specific laws that seem aimed solely at specific individuals or organizations, which is exactly the sort of behavior that this prohibition, interpreted broadly, was intended to prevent.

Similarly, one might think that Congress's power to issue letters of marque and reprisal is little more than ground for an interesting history lesson. But that clause is deeply entangled with the checkered history of US declarations of war and controversies over Congressional oversight, and Wexler uses it as a jumping-off point to take a look at the implications for the modern habit of undeclared wars fought by military contractors.

This is a short book, so these treatments are necessarily brief. Some of them are also fairly minor; for example, the discussion of the weights and measures clause is mostly an extended rant on the US refusal to adopt the metric system. That's a sentiment with which I entirely agree, but I'm not sure it has much to do with constitutional law. But Wexler is an entertaining and concise writer; even when the discussion is relatively shallow, I enjoyed reading his analysis. (I will warn, though, that he takes a few potshots from a liberal perspective, so one's enjoyment of his humor may to some extent depend on your personal political allegiances.)

I wouldn't rush out to find this book, but I found it mildly diverting and occasionally quite informative. The chapter on original jurisdiction, for instance, explained how the Supreme Court handles certain classes of cases that must be filed directly with it, despite not being a trial court. This was a question that I didn't even know I had, and a side system of judicial procedure that turned out to be surprisingly interesting.

I suspect The Odd Clauses will be the most interesting to people who have only a news media understanding of the US Constitution. I went through a personal libertarian period, during which I read the constitution in detail and sought out some discussions of its specifics, so quite a bit of this book was familiar ground to me. Others without that study background may find more novelty. But even with that background, I was entertained, and don't regret buying it.

One note, though: I bought this book on the recommendation of Kevin Underhill, author Lowering the Bar, which is a masterpiece of dry humor. If you're looking for legal humor, parts of The Odd Clauses are mildly funny, but Lowering the Bar is the sort of site that will have you staying up late reading just one more page of archives and reading bits aloud to anyone nearby.

Rating: 7 out of 10

Reviewed: 2013-06-26

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