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Tuesday, November 01, 2011

What Makes an Odd Clause Odd?

Today is the long-awaited (by me) day that my second book comes out.  It's called The Odd Clauses: Understanding the Constitution Through Ten of its Most Curious Provisions, and, as the title suggests, it's about a bunch of constitutional clauses that many people don't know that much about but that are nonetheless really interesting and often important.  As the first two paragraphs put it:

The Constitution of the United States contains some of the most powerful and well-known legal provisions in the history of the world.  The First Amendment, for example, gives us the right to speak our minds without government interference.  The equal protection clause of the Fourteenth Amendment stops the state from discriminating against us because of our race or gender.  And the Fourth Amendment, as our television crime dramas continually remind us, prevents the police from searching our homes without a warrant.  I would bet that in the past twenty years, several hundred books have been written about these important clauses, and for good reason.  This book, however, is not one of them.

Instead, this book will shine a much-deserved light on some of the Constitution's lesser-known clauses--its benchwarmers, its understudies, its unsung heroes, its crazy uncles.  To put it another way, if the Constitution were a zoo, and the First, Fourth, and Fourteenth amendments were a lion, a giraffe, and a panda bear, respectively, then this book is about the Constitution's shrews, wombats, and bat-eared foxes.  And believe me, if you've never laid eyes on a bat-eared fox before, you are in for a treat.

The idea for the book came to me when I was working at OLC about 10 or 11 years ago. 

Lots of the work of that office has to do with clauses that nobody (at least not me) learns about in law school or hears about in the papers or on television.  One day, the question came up whether President Clinton could accept some sort of honor from an African village, or whether that would violate the Titles of Nobility Clause.  I had no idea what the Titles of Nobility Clause even was.  But I thought it would be cool to someday write a book about clauses like that one that seemed really odd to me on some intuitive level.

It turned out, however, that actually choosing which ten clauses to write about was pretty difficult.  I was forced to think about what, to me, makes a clause like the Titles of Nobility Clause odd.  I workshopped the book idea at a few law  schools and got incredibly helpful feedback on what clauses to include and what not to include.  The original scheme for the book included the Property Clause and the Ex Post Facto Clause, for instance.  Neither made it to the final version.  At these workshops, there was a lot of discussion of oddness.  Lots of theories were suggested.  Some argued that it's the anachronistic clauses that should be considered "odd."  Others thought that the oddest clauses were those dealing with things (post roads, maybe) that seemed below the dignity of a constitutiton.  Other ideas were tossed about as well.  Clearly, thinking about what makes a clause odd forces you to think about what makes the non-odd clauses non-odd, or to put it another way, what is it we expect to see in our Constitution, what clauses seem perfectly suited for a Constitution, what is a Constitution supposed to have in it and be like anyway?

In the end, because the book is more of a popular volume than a scholarly one, I didn't feel I needed to develop any sort of sophisticated theory of oddness.  I do explain in the book that, for me, what makes a clause feel odd is its specificness, that it furthers some important objective in a very targeted way, rather than establishing some broad but vague principle.  So, I talk about the Incompatibility Clause, the Weights and Measures Clause, the Letters of Marque Clause, the Third Amendment, and the like, that all fit this criteria, at least in my mind.  But I did find these discussions of oddness theory to be quite interesting, and I wonder if people out there would like to share their ideas about what makes an odd constitutional clause odd.  And while you're doing that, remember that The Odd Clauses makes a great stocking stuffer, assuming that the stocking we're talking about is on the largish side, and that the book is the only thing you plan on stuffing into it.

Posted by Jay Wexler on November 1, 2011 at 12:43 PM in Constitutional thoughts, Jay Wexler | Permalink


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No theory of oddness here. Just hearty congratulations, Jay. Nice work.

Posted by: Holling | Nov 1, 2011 12:47:10 PM

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