Shrews and Wombats and Bat-eared Foxes! Oh My Stars and Whiskers! Jay Wexler on the Constitutions "Odd Clauses"

My favorite film, I say on those occasions when I'm asked, is Stanley Kubrick's Paths of Glory.  When asked my favorite book, I name Edmund Spenser's unfinished epic poem The Faerie Queene.

I could explain each of those choices in a variety of ways.  Each is a great work of art: careful, composed, perhaps a bit didactic but rich within it's range though the ranges differ dramatically.  Paths of Glory is, uncharacteristically for Kubrick but this was still early in his career, spare even stark.  The Faerie Queene is ornate, elaborate, overflowing (it's an epic after all), at the same time richly allusive and symbolic (it's also an elaborate allegory).

Kubrick made a truly dark film about the horror of war, the dangers of power and ambition, and the hopelessness but necessity of integrity.  Oh, and it also says something about the death penalty and the legal system.  Spenser for all his clearly intended glorifying of Queen Elizabeth (in the person of the Faerie Queene herself, the glorifyingly named Gloriana), fashioned an epic of much darkness.  Heroic characters are insufficient to the task.  Salvation requires constant struggle and is always elusive (and allusive, since this is an allegory).  The age of Eden is over.  Some cannot be, will not be, saved and will be happier beastly.*

Yet from these two works which have no evident relationship to each other (and really, I'll be getting to the point before long and this isn't a post about movies or Renaissance English poetry - it's actually a book review of a new book that has nothing to do with either), it's clearly possible to find points of commonality.

One can always do that, of course, yoke together seemingly unrelated bits and pieces.  When done well, the yoking reveals something.

There's also this (and honest, I am getting there).  The individual parts - or even just one individual thing, seemingly innocuous thing, can also reveal much when it's carefully held up to the light, turned about, examined.

When asked my favorite criminal statute, I say (OK, nobody's ever asked me, but if it were to happen, I would say) Ohio Revised Code Section 959.19.

No owner of a stallion or jack or the agent of such owner, shall permit it to serve a mare within thirty feet of a public street or alley in a municipal corporation.

The law was enacted in 1953 as part of Ohio's General Code and I imagine (I'm not bothering to look it up now) long predated that.  When the Revised Code was adopted 20 years later, the prohibition was collected in Title 9 which deals with Agriculture, Animals, and Fences.

So 959.19 is an artifact.  I don't know much about how it came to be or why it was initially enacted and I never lived where there were any stallions, jacks, or mares going at it within even 30 yards of a public street or alley, let alone 30 feet, so it's not like I've been directly affected by - or even seen the effects of - the law.  (If any; there appear to be no appellate cases dealing with the law, nor am I aware of anyone having been prosecuted for a violation, but I haven't invested enough time or effort on the research to be sure.)

So why?  Protecting the sensibilities of women and children who shouldn't see the bawdy display?  Protecting folks from the danger of distracted driving because they just naturally want to look, and maybe slow down to rubberneck?  Protecting the animals from either screwing their way into the street or getting run down by the excited drivers?  Protecting the mare's from the humiliation and shame of public bopping?  All of the above?  Something else?  Were there a rash of these incidents at one time?  Was the original prohibition enacted because of some particularly newsworthy (even if only tabloid newsworthy) event?  Was it Trigger's Law?  There's a treasure trove of inisght for the cultural historian and the sociologist.

I have a special fondness for the Third Amendment.  I wrote this last year.

Some years ago, at a Constitution Day event on the campus of the University of Toledo, they'd arranged for a variety of folks to give three minute talks on the amendments constituting the Bill of Rights.  I'd been asked, as I recall, to talk about the 8th Amendment.  That's the one that prohibits cruel and unusual punishment, the one that lawyers and the courts use to set the boundaries of the death penalty.

For whatever reason, and I didn't discover this until I arrived just a couple of minutes before things got rolling, nobody had been assigned to speak about the 3rd Amendment.  I wasn't too surprised.  The 3rd is widely ignored, because it addresses what seems today to be a non-issue.  Ellen Alderman and Caroline Kennedy, in their book In Our Defense: The Bill of Rights in Action call it "the forgotten amendment."  They write,

The Third Amendment is a reminder that although the Constitution was "framed for ages to come and . . . designed to approach immortality," it was also written to address real and immediate grievances suffered by its authors.

Indeed.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

The Quartering Act of 1774 authorized the quartering of British troops wherever.  And wherever included the homes of the colonists.  Yes, that's as deeply offensive today as it was then, but it's just not much of a real world concern in the US of the 21st Century.

Still, I jumped into the breach and asked if I could take a couple of minutes to riff on the 3rd Amendment before it came my turn to speak about the 8th.  See, I'm a fan.

What I like so much about the 3rd Amendment is it's absolutism.  No quartering in private homes in peacetime.  Even in time of war it has to be lawful, but none at all in peacetime unless the owner invited them in.

Rich or poor, you can bar the door.

The government simply cannot invade.

Besides, it leads so naturally into the Fourth Amendment.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It's those amendments, supported by pieces of others, that make the basic point.  There are matters with which the government doesn't get to meddle.

Justice Louis Brandeis, finding in the 5th Amendment's prohibition against compelled self-incrimination an extension of the principles of the 4th, explained it as well as anyone.

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.

I'm always saddened by the fact that Brandeis wrote that ringing paragraph not for the Court in Olmstead v. United States but in dissent.

See, when you dig down into the Third, there's all kinds of resonance.  There's the history, of course which is interesting in itself and tells something about the immediate concerns of those who insisted that it's narrow and detailed rules were necessary additions to the Constitution.  But what really resonates is how it interacts with it's neighboring amendments to say to the government

This is mine.  Stay the fuck out.

Sadly, while the haven't been reported Third Amendment violations, the broader principle it embodies has largely been trashed.

It turns out that Jay Wexler likes the Third Amendment, too.  It's the subject of the final chapter in his engaging and informative new book The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions.

What Wexler's done here is to dig into ten provisions of the Constitution that even folks who think about the Constitution a lot, even folks who work on it daily, don't often think about.  He explains the idea in the opening paragraphs of the Introduction.

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 be 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 bench warmers, 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.

And a treat it is, as Wexler, with wit and scholarship - and there's plenty of both - takes us through

• The Incompatibility Clause,
• The Weights and Measures Clause,
• The Recess-Appointments Clause,
• The Original-Jurisdiction Clause,
• The Natural-Born Citizen Clause,
• The Twenty-first Amendment,
• The Letters of Marque and Reprisal Clause,
• The Title of Nobility Clauses,
• The Bill of Attainder Clauses, and of course,
• The Third Amendment.

This could be horribly dry stuff, but Wexler doesn't let that happen.

For one thing, these seemingly minor constitutional bits aren't all that minor.  The Third Amendment (to return to that for a moment) hasn't had much play (Wexler writes that "[i]n the constitutional zoo, most experts would probably identify the Third Amendment as a dodo bird," and notes an article from the Onion, "Third Amendment Rights Group Celebrates Another Successful Year"), others of these provisions aren't entirely without notice.

There's just been a dust up over Obama using the Recess-Appointments Clause to make Richard Cordray the Director of the Consumer Financial Protection Bureau.

The Natural-Born Citizen Clause is at the heart of the birthers' claims (though I note that Wexler doesn't discuss the question that's been key in Georgia: Whether natural-born citizens are a subclass of birthright citizens, though he gives his view of the matter.

Some concede he was born in Hawaii but say it doesn't matter because his father was born in England, thus making Obama a dual citizen of the United States and England (which is irrelevant anyway, but never mind.)

Ron Paul (yes, that Ron Paul) suggested that Congress should issue letters of Marque to fight the Somali pirates.

And there's more.

But it's not just that Wexler puts these constitutional bits in a framework of current events.  He does it with scholarship (he actually makes interesting law review articles - in general the most mind-numbingly tedious and overfootnoted [it's generally darker at night than during the day, must cite source for that bit of information] drivel to come from the word-processor of man; disclosure: I was a law review editor when I was in law school).  And he does it with jokes.

Wexler's a stand-up comic at heart, and while a couple of the jokes fall flat (he should probably keep his day job), most don't.  More to the point, leavening the academic with the Leno (he's not as edgy as Letterman) keeps the pace going and the attention from flagging.  As Scott Greenfield put it in his rave review,

Given our lawyerly love of both the Constitution and oddities, The Odd Clauses is just an enormously fun read and, in the process, exceptionally informative. The problem is that you're having such a good time reading Jay's twisted humor that you don't realize you're learning. Damn that Wexler!

Damn him indeed.

OK, I think The Odd Clauses is a terrific book that should get a lot more attention from the mainstream press than it has gotten.  And it ought to be short-listed for inclusion in next year's edition of the Green Bag's Almanac and Reader of "Exemplary Legal Writing."

Of course, for a rave review to have credibility, especially when the book was a gift from the author with an inscription worth savoring,** it has to have a caveat.  Here it is:

Wexler's a bit naive.  It's understandable.  He clerked for Supreme Court Justice Ruth Bader Ginsburg.  He worked for the Office of Legal Counsel in the Department of Justice during the Clinton Administration.  He's a Professor of Law at Boston University School of Law.  He is, then, invested in the too-often fiction that the law really works the way it's supposed to, that when push to shove the Rule of Law prevails over the Law of Rule.  And for him it mostly has and does.

Regardless, The Odd Clauses is a terrific book, fun and informative.

And Wexler likes the Third Amendment.  What more needs to be said?

----------------------

*Here are the last lines of Book II of The Faerie Queene.  Sir Guyon, the Knight of Temperance, with the aid of his Palmer (don't ask) has defeated Acrasia and is freeing from enchantment as swine those who entered too willingly into her Bower of Bliss.

Streight way he with his vertuous staffe them strooke,
  And streight of beasts they comely men became;
  Yet being men they did vnmanly looke,
  And stared ghastly, some for inward shame,
  And some for wrath, to see their captiue Dame:
  But one aboue the rest in speciall,
  That had an hog beene late, hight Grille by name,
  Repined greatly, and did him miscall,
 That had from hoggish forme him brought to naturall.

Said Guyon, See the mind of beastly man,
  That hath so soone forgot the excellence
  Of his creation, when he life began,
  That now he chooseth, with vile difference,
  To be a beast, and lacke intelligence.
  To whom the Palmer thus, The donghill kind
  Delights in filth and foule incontinence:
  Let Grill be Grill, and haue his hoggish mind,
But let vs hence depart, whilest wether serues and wind.

** Scott reports that the copy of the book Wexler sent him bore this inscription.

Dear Scott,

I think you will soon agree that this is the best book ever published. Congratulations on getting to read it!

[Completely unreadable scrawled signature that appears to be "jarmulkar"]

The one he sent me has this one.

To Jeff, The blogmaster, The King of all bloggers in This world and any other, I present to you not only this book but also a picture of Batsy, the Bateared fox mascot of The Odd Clauses
[And then a drawing of Basty followed by a signature that seems to include in uppercase both the letters J and D.]

I win.