The Odd Clauses: Understanding the Constitution through Ten of Its Most Curious Provisions

The Odd Clauses: Understanding the Constitution through Ten of Its Most Curious Provisions

Jay Wexler

Language: English

Pages: 240

ISBN: 0807000892

Format: PDF / Kindle (mobi) / ePub

An innovative, insightful, often humorous look at the Constitution’’s lesser-known clauses, offering a fresh perspective on the document’s relevance today
For a variety of reasons, many of the Constitution’s more obscure passages never make it to any court and therefore never make headlines or even law school classrooms, which teach from judicial decisions. In this captivating and witty book, Jay Wexler draws on his extensive professional and educational backgrounds in constitutional law to demonstrate how these “odd clauses” have incredible relevance to our lives, our government’s structure, and the integrity of our democracy.

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twenty years later, Attorney General Harry Daugherty wrote an opinion saying that the president can make an intrasession-recess appointment whenever, “in a practical sense,” the Senate is on a long enough break that its consent cannot be obtained. While Daugherty didn’t say exactly how long such a break had to be, he did make it clear that a really short break like two or three or maybe even ten days wouldn’t count. For the next sixty or so years, presidents following this advice made a number of

supremacy clause of Article VI, which says that federal law is the “supreme Law of the Land.” This clause makes it clear that if a federal law and a state law conflict, the federal law trumps. That’s why, for example, it’s still technically illegal to use marijuana for medical purposes in California. Second, Article I, Section 10, of the Constitution lays out a series of specific limits on the states—they are forbidden, for instance, from issuing titles of nobility (see chapter 8), keeping

According to this theory, officials of the National Security Agency are “soldiers,” and their wiretapping counts as “quartering.” Finally, two professors have argued in a prominent environmental law journal that the Endangered Species Act, by requiring private landowners to “quarter” endangered species on their property, violates the Third Amendment. It turns out, however, that the article is a forty-one-page satire that pokes fun both at the act and the method of constitutional interpretation

Clearly, such a lack of litigation bears no necessary correlation to the importance of the subject matter. As recognized by our sister circuit, for example, in the 216 years since the adoption of the Third Amendment to the United States Constitution, “[j]udicial interpretation of [that provision] is nearly nonexistent.” . . . The Third Amendment’s prohibition on the quartering of soldiers in private residences without consent is, however, one of the constitutional bulwarks protecting privacy

or legitimate than robbing a bank and not getting caught. It is gratifying that in the United States, both the legislative and executive branches have offices whose duties involve advising members of those branches on whether something they want to do is legal, regardless of what, if anything, a court might have to say about the issue later. In the executive branch, the office that performs this function is the Office of Legal Counsel. Unlike the courts, the OLC writes opinions about

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