The Constitution's Odd Clauses

Monday, October 31, 2011

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.


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Comments [13]

I've always enjoyed the section which reads, "No State shall ... make any Thing but gold and silver Coin a Tender in Payment of Debts;"

My own state, New York, has been happy to accept a check, un-backed in any way by gold or silver coin, in payment for such things as taxes, auto registration and driving licences.

I'n not even sure if the Federal government mints gold and/or silver coins these days.

Nov. 02 2011 04:48 PM
Diane F. Oliver

Because no Americans can or should take Titles of Nobility the Queen of England gives Honorary Knighthoods to Americans. Even Douglas Fairbanks Jr. (no government employee) was granted an Honorary Knighthood. . and of course as such cannot call himself 'Sir'.

Oct. 31 2011 11:12 AM
Andre from NYC

Years ago when I was a SGT in the Army and stationed at Ft. Drum, NY, there was a big storm that knocked out the power for several days. I was a generator mechanic and tasked to hook up power for some of the local dairy farmers so that they could continue milking their cows.

Whenever I left a generator, I also left a soldier to maintain it. All of the farmers that we serviced except one, allowed my soldiers to stay in their home while the generators were hooked up to their farms. There was one, however, who, from the get go, said that he wasn't going to allow the soldier to stay in his home, incorrectly citing the 4th Amendment. I corrected him and, of course, we complied and my soldier stayed outside in a small tent even while it rained!

Oct. 31 2011 11:03 AM
Duncan White from Dunblane, Scotland, UK

Please ask Jay Wexler to stop referring to "England and the English" and use " the United Kingdom and the British" instead

Oct. 31 2011 11:01 AM
Ella Adler from Dublin, Ireland

The Irish constitution contians a similar nobility clause:
Article 40:

2. 1° Titles of nobility shall not be conferred by the State.
2° No title of nobility or of honour may be accepted by any citizen except with the prior approval of the Government.

Must be a reaction to British rule!

Oct. 31 2011 10:59 AM
Stepghen from Manhattan

I could swear Rudolph Giuliani declared himself "Il Duce" while he was still mayor.

Oct. 31 2011 10:58 AM
John from USA

Here's a list of Americans who have been knighted in possible violation of the Title and Nobility Clause.
Knights In The News:

Oct. 31 2011 10:56 AM
Sarah from LES

I would like to point out concerning John McCain and the birther clause. Democrafts are the ones that pushed this through because of McCain and it had nothing to do with Obama.

Oct. 31 2011 10:52 AM
Robert from NYC

Strange, I, ME, MOI, he who is really dumb when it comes to American History, I knew/know about the nobility clause, and this lawyer didn't!!! I will be gracious and say he forgot he knew of it.

Oct. 31 2011 10:49 AM
Lawyer from Quebec

The letters of Marque & Reprisal clause allows the federal government to hire pirates. When Jefferson ran into a problem with Barbary pirates, he waged war with the Marines. Fighting in Tripoli gave rise to the hymn of the Marines words/lyrics..

From the halls of Montezuma to the shores of Tripoli

Oct. 31 2011 10:47 AM
Johnnjersey from NJ

I think the second amendment is a strangely worded clause. There is a clunky dependent clause at first, and then the actual meaning next. I think it has lead to lots of the confusion and controversy. If the wording was changed it would be more clear.

Oct. 31 2011 10:46 AM
Connie Law from Canada

Article two, Section One, Clause 5

The "birther clause"

"... and been fourteen years a Resident within the united states."

So anchor babies who are taken back to Soeul need to return by their 21st birthday if they want to be eligible at their youngest age of 35 years old.

Oct. 31 2011 10:37 AM
brand X from Munnn Tree All

ArticleOne, Section Ten, clause two

no state shall ... lay any imposts or duties on imports or exports...

in 1787 the major reason for a new constitution was the threat of local rebellion and fraying of the union. The central power was missing. Each state could impose tariffs on imports from otter states. In few years before the constitutional meeting, there had been the Whisky REbellion.

Oct. 31 2011 10:31 AM

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