The Constitution's Odd Clauses

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Welcome to Politics Bites, where every afternoon at It's A Free Country, we bring you the unmissable quotes from the morning's political conversations on WNYC. Today on The Brian Lehrer ShowJay Wexler, law professor at Boston University and author of the new book, The Odd Clauses: Understanding the Constitution through Ten of Its Most Curious Provisions, discussed the lesser-known parts of the Constitution and how they affect our lives.

No-no nobility?

Did you know that U.S. officials can't accept titles of nobility from foreign nations?

Really, why would you know that? It's in the Constitution, but items like the Title of Nobility clause go unnoticed mostly because they almost never apply; when they do, it's to an infinitesimal fraction of the population, and it's largely inconsequential.

But it's a law nonetheless, and one caller to the Brian Lehrer Show wondered whether it was unconstitutional for former New York City Mayor Rudy Giuliani to accept knighthood from Great Britain in 2002. Jay Wexler pointed out that the clause only pertains to sitting officials employed by the federal government.

[Giuliani] was not an officer of the United States when he accepted the title of nobility, so only officers of the United States are prohibited from accepting titles of nobility from foreign countries. We have a lot of people who have been knighted. Ted Kennedy was knighted, Jerry Lewis was a member of the French Legion of Honor.

For those keeping score, Kennedy was in fact knighted while he was Senator in 2009, but the clause allows officials to accept titles with the approval of their employing agency. The Senate Ethics Committee granted such approval to Kennedy.

What if there were no 3rd Amendment?

We're always hearing about the First Amendment, the Second Amendment, the Fourth Amendment, "pleading the Fifth". But what about the Third Amendment? Do you even know what it is?

Lesser-known constitutional clauses don't get a lot of traction in the media, mainly because they those clauses deal with things that are essentially non-issues today. Freedom of speech gets litigious; the right to bear arms always faces regulation. But clauses like those in the Third Amendment, for example, don't make headlines because it's settled: The government can't quarter troops in citizens' homes.

Jay Wexler said that while the amendment was originally drafted because the British had forced colonists to house their troops—far from being a problem these days—it's quietly relevant to our past, present, and future.

It works so well. The government never tries to quarter their troops in people's houses without their consent. But who knows what they would have done if there had been no 3rd Amendment, and nobody knows what might happen in the future. There could be a scenario where all of a sudden it would make sense for the military to want to put soldiers in private houses, and they wouldn't be able to do it.

The 'least odd' of the odd clauses

Not all lesser-known clauses are so settled. Wexler pointed to the Bill of Attainder clause, which he called the "least odd" of the clauses discussed in his book. It prohibits the legislature from imposing punishment on individuals or groups, reserving that power for the judiciary.

But it could be argued that recent actions taken by Congress to de-fund ACORN or Planned Parenthood could arrogate some of that power that the Bill of Attainder clause meant to limit to courts.

[The Founding Fathers] didn't like the idea that legislature could simply impose punishment on somebody. The allegations have been, for example in the ACORN case, when Congress defunded them, that the legislature was in fact imposing a punishment on the organization for its bad behavior.

Why they matter, all of them

What made Jay Wexler so interested in these "odd clauses"? They don't often apply, they're usually relics of a by-gone era, and relatively few people are even aware of their existence. So why a whole book about them?

Wexler said that big or small, pertinent or outmoded, they're in the Constitution. That makes them important.

Even if they don't make the news, even if they're not litigated, they provide the constitutional backdrop for how our democracy works. If we're going to understand the Constitution, we're going to have to understand all of it.