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

( 8 )


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 ...
See more details below
Paperback (New Edition)
$13.96 price
(Save 12%)$16.00 List Price

Pick Up In Store

Reserve and pick up in 60 minutes at your local store

Other sellers (Paperback)
  • All (15) from $2.96   
  • New (6) from $5.80   
  • Used (9) from $2.96   
The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions

Available on NOOK devices and apps  
  • NOOK Devices
  • Samsung Galaxy Tab 4 NOOK 7.0
  • Samsung Galaxy Tab 4 NOOK 10.1
  • NOOK HD Tablet
  • NOOK HD+ Tablet
  • NOOK eReaders
  • NOOK Color
  • NOOK Tablet
  • Tablet/Phone
  • NOOK for Windows 8 Tablet
  • NOOK for iOS
  • NOOK for Android
  • NOOK Kids for iPad
  • PC/Mac
  • NOOK for Windows 8
  • NOOK for PC
  • NOOK for Mac
  • NOOK for Web

Want a NOOK? Explore Now

NOOK Book (eBook)
$16.99 price
(Save 31%)$24.95 List Price


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.
Read More Show Less

Editorial Reviews

From the Publisher
“I love this book. It is, believe it or not, an utterly entertaining constitutional law book. I am blown away by Wexler's comedic skills and his ability to make the usually dry subject matter so funny and readable.”—Gary Gulman, Finalist, Last Comic Standing and Guest, Late Night With David Letterman and The Tonight Show

“In Holy Hullabaloos, Jay Wexler took us along on what he called a "road trip" to some of the most important places connected to the First Amendment's religion clauses. This time, in The Odd Clauses, Wexler exits off the highway to take us on a tour of some back roads of constitutional law: places scholars and the public seldom visit like the Bill of Attainder Clause or the Third Amendment (which prohibits quartering of troops in private houses during peacetime, in case you didn't know.) The result is magical: you'll have so much fun reading about these unsung constitutional provisions that you won't realize until the trip is over how much you've learned.”— Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law

“The book provides a fresh vantage point from which to consider the Constitution.”—Choice Magazine

“Professor Wexler dispenses his expertise on the Constitution with a light touch, imparting many lasting insights and a few belly laughs along the way. What a delight to discover that our founding document is not only brilliant, but brilliantly weird.”—Ben H. Winters, author of Sense and Sensibility and Sea Monsters

“A know-it-all's treasure trove, a cabinet of constitutional curiosities, The Odd Clauses touches down on NASA, Ellis Island, even Saturday Night Live. Jay Wexler is brilliantly snarky, erudite and comedic.”—Julianna Baggott, author of Girl Talk and Pure

“The maniacs who run the modern American political process seem determined to reduce our Constitution to a electoral fetish object. Thank God, then, that we have Jay Wexler, whose wise and funny treatise reminds us that the Constitution is, like the men who drafted it, brilliant but imperfect. I learned more reading this book than in my entire college career. This isn't saying much given my college career, I realize. But I now plan to attend law school. It's that good.”—Steve Almond, author of Candyfreak and God Bless America

From the Hardcover edition.

Read More Show Less

Product Details

  • ISBN-13: 9780807000892
  • Publisher: Beacon
  • Publication date: 9/4/2012
  • Edition description: New Edition
  • Pages: 240
  • Sales rank: 623,724
  • Product dimensions: 5.20 (w) x 8.30 (h) x 0.50 (d)

Meet the Author

Jay Wexler teaches at the Boston University School of Law. He previously clerked for Supreme Court Justice Ruth Bader Ginsburg and then served as a lawyer in the Department of Justice’s Office of Legal Counsel. Wexler’s writing has appeared in Boston magazine, Spy, and McSweeney’s Internet Tendency, among other publications. His first book was Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church-State Wars

From the Hardcover edition.

Read More Show Less

Read an Excerpt

chapter 6 The Twenty-first Amendment: Federalism

"The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."
Amendment XXI, Section 2

This may come as a surprise, but in the late 1960s, the problem of “bottomless” dancing in California bars and nightclubs had spiraled out of control. Or at least that was the opinion of the state’s Department of Alcoholic Beverage Control, which became so worried about the menace that it held a series of public hearings to figure out the extent of the peril and what to do about it. The testimony at these hearings revealed, in the words of one federal court, a “sordid” story, “primarily relating to sexual contact between dancers and customers.” Apparently, bottomless-dancing clubs were not nearly as wholesome as one might imagine. According to a different court: “Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself.” The State of California, in other words, had turned into a Bangkok red-light district.

Of course, the state had already made it illegal for customers and dancers to engage in public sexual acts, but apparently those laws had not done the trick (so to speak). The agency in charge of licensing the sale of alcoholic beverages within the state therefore decided to do something about the bottomless dancing itself. It passed a series of regulations prohibiting a variety of lewd practices in any establishment selling liquor. Specifically, no club holding a liquor license could allow any person to perform acts of or simulating “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation . . . [or] the touching, caressing or fondling on the breast, buttocks, anus, or genitals.” The state figured that banning these activities in bars would pretty much end them altogether; what guy, after all, is going to pay money to watch a woman simulate caressing her buttocks if he can’t enjoy a beer at the same time?

The problem, however, was that California’s regulations seemed clearly to violate the First Amendment. Fifteen or so years earlier, the Supreme Court had held that the government may not ban arguably profane speech or expression that does not rise to the level of “obscenity,” with the term “obscenity” being very specifically defined as material that, when “taken as a whole,” appeals to a “prurient” interest in sex and patently offends “community standards” relating to sex, while completely lacking any “social importance.” Nothing in the regulations limited their application only to “obscene” instances of bestiality or flagellation. Accordingly, when a group of dancers and license holders sued to have the regulations invalidated, the three-judge lower federal court that heard the case held that the regulations were unconstitutional.

The Supreme Court, however, reversed. The Court agreed that the “regulations on their face would proscribe some forms of visual presentation that would not be found obscene” under its prior cases. So why uphold the regulations? The answer appeared to rest in the language of Section 2 of the Twenty-first Amendment, which was ratified in 1933 to repeal the era of Prohibition that had been ushered in fourteen years earlier by the Eighteenth Amendment. According to the Court, Section 2 of the Twenty-first Amendment acted like a thumb on the scale of state power, giving states the authority to regulate alcohol in ways that would otherwise violate the Constitution. As the Court put it: “[T]he broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. . . . Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.”

That seems like a strange result, doesn’t it? How could the amendment that ended Prohibition be used by the Court to uphold a restriction on the sale of alcohol? Well, that depends on what the Twenty-first Amendment was all about. Was it about making alcohol legal, or was it about taking power over alcohol away from the federal government and returning it to the states, where it had always resided prior to 1919?

Perhaps the most difficult issue facing the framers of the Constitution was how to balance the powers of the new federal government with the powers of the states—to work out, in other words, the problem of federalism. Between the end of the Revolutionary War and the ratification of the Constitution, the newly independent states had been operating under the Articles of Confederation, a document that cre- ated a very limited federal government and left most powers to the states. This regime worked poorly, particularly because the states competed with each other for economic supremacy, taxing each other’s goods and otherwise refusing to trade freely among themselves. The federal government, lacking executive and judicial power and possessing only a weak legislature, couldn’t do anything to preserve interstate harmony. When the Constitutional Convention met in 1787, it was clear that the federal government needed to be given more power, but a lot of disagreement remained between the so-called federalists and anti-federalists about exactly how much.

In many ways, the Constitution represents a compromise between these two camps. Most importantly, although the Constitution creates a substantial, three-branch national government, it confers upon that government only a series of specific, limited powers; everything else is left to the states. As discussed in chapter 2, Congress may only exercise those powers enumerated by the Constitution; the founding document does not give Congress any sort of general police power to regulate purely local activities. Likewise, as discussed in chapter 4, the jurisdiction of the federal judiciary is limited to cases involving federal law and cases involving plaintiffs and defendants from different states. Run-of-the-mill controversies about real property, contract terms, criminal law, and negligently dropping a brick on someone’s foot generally cannot be heard by the federal courts.

In addition, two key amendments to the Constitution specifically protect the states. The Eleventh Amendment, ratified in 1795, says: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The amendment was motivated by a famous early Supreme Court case called Chisholm v. Georgia, which held that a citizen of South Carolina could sue the State of Georgia to recover debts from the Revolutionary War. The states kind of freaked out about the idea that people could sue them for the mountains of debt they had incurred during the war, and they acted promptly to enact the Eleventh Amendment. Even though the language of the amendment clearly does not bar citizens from suing their own state and clearly applies only to federal courts, the Supreme Court has priggishly extended the amendment to all citizens and all courts. As a result, states are immune from a lot of lawsuits that they shouldn’t be, like suits brought against them by their own citizens to enforce federal employment or environmental laws, even if these suits are brought in state court.

Read More Show Less

Table of Contents



Chapter 1: The Incompatibility Clause Separation of Powers
Chapter 2: The Weights and Measures Clause Legislative Powers
Chapter 3: The Recess-Appointments Clause Presidential Powers
Chapter 4: The Original-Jurisdiction Clause Judicial Powers
Chapter 5: The Natural-Born Citizen Clause Elected Office for (Almost) Anyone!
Chapter 6: The Twenty-first Amendment Federalism
Chapter 7: The Letters of Marque and Reprisal Clause Foreign Affairs
Chapter 8: The Title of Nobility Clauses Equality
Chapter 9:The Bill of Attainder Clauses Liberty
Chapter 10: The Third Amendment Privacy


Read More Show Less

Customer Reviews

Average Rating 2
( 8 )
Rating Distribution

5 Star


4 Star


3 Star


2 Star


1 Star


Your Rating:

Your Name: Create a Pen Name or

Barnes & Review Rules

Our reader reviews allow you to share your comments on titles you liked, or didn't, with others. By submitting an online review, you are representing to Barnes & that all information contained in your review is original and accurate in all respects, and that the submission of such content by you and the posting of such content by Barnes & does not and will not violate the rights of any third party. Please follow the rules below to help ensure that your review can be posted.

Reviews by Our Customers Under the Age of 13

We highly value and respect everyone's opinion concerning the titles we offer. However, we cannot allow persons under the age of 13 to have accounts at or to post customer reviews. Please see our Terms of Use for more details.

What to exclude from your review:

Please do not write about reviews, commentary, or information posted on the product page. If you see any errors in the information on the product page, please send us an email.

Reviews should not contain any of the following:

  • - HTML tags, profanity, obscenities, vulgarities, or comments that defame anyone
  • - Time-sensitive information such as tour dates, signings, lectures, etc.
  • - Single-word reviews. Other people will read your review to discover why you liked or didn't like the title. Be descriptive.
  • - Comments focusing on the author or that may ruin the ending for others
  • - Phone numbers, addresses, URLs
  • - Pricing and availability information or alternative ordering information
  • - Advertisements or commercial solicitation


  • - By submitting a review, you grant to Barnes & and its sublicensees the royalty-free, perpetual, irrevocable right and license to use the review in accordance with the Barnes & Terms of Use.
  • - Barnes & reserves the right not to post any review -- particularly those that do not follow the terms and conditions of these Rules. Barnes & also reserves the right to remove any review at any time without notice.
  • - See Terms of Use for other conditions and disclaimers.
Search for Products You'd Like to Recommend

Recommend other products that relate to your review. Just search for them below and share!

Create a Pen Name

Your Pen Name is your unique identity on It will appear on the reviews you write and other website activities. Your Pen Name cannot be edited, changed or deleted once submitted.

Your Pen Name can be any combination of alphanumeric characters (plus - and _), and must be at least two characters long.

Continue Anonymously
Sort by: Showing all of 8 Customer Reviews
  • Anonymous

    Posted July 16, 2013


    Terrible treatment of what should be an interesting subject. I'm sorry I wasted good money on this piece of trash.

    3 out of 3 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted July 13, 2013

    Waste of time!

    I found this book poorly organized. I might have enjoyed it more had the author been less sarcastic and gave less evidence of his left leaning bias.

    3 out of 3 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted July 21, 2013

    Poor book

    I wish I had read the reviews before I bought this. I will be more careful in the future.

    2 out of 2 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Posted January 3, 2012

    Check it out...from your library

    I concur with anonymous. It is unfortunate that an author would take so little pride in his work as to print something as mundane and uninspired as Jay Wexler. I bought this book with the hope of an enjoyable, yet intelecutaly stimulating read, but found neither.

    2 out of 2 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted January 3, 2012

    Doesn't Recommend

    This book is absolute drivel. Far from being witty or humorous, Wexler's writing is not only obviously skewed and his opinions are blatantly stated within the text, but there are moments of obvious historical inaccuracies. On page 28 for example Wexler states that "In 1816 President James Madison brought the issue [the standard of weights and measures in the country] up again with Congress, and Congress once again asked the Secretary of State to prepare a report. This time the Secretary of State was John Quincy Adams." In 1816 under the Presidency of James Madison the Secretary of State was James Monroe, not John Quincy Adams.
    Because this was written so early in the text everything else was suddenly suspect and the entire book became unreliable, its argument lost all credence, and every assertion required extra research to uphold validity.

    2 out of 2 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Posted April 1, 2013

    more from this reviewer

    The Odd Clauses, by Jay Wexler, provided a fascinating and very

    The Odd Clauses, by Jay Wexler, provided a fascinating and very accessable journey through ten of The Constitution's more obscure provisions.
    A professor at Boston University School of Law, Mr Wexler writes with a large dollop of snarky political asides, that I found in no way affected my understanding of the difficul subject matter.

    Seperation of Powers; Weights and Measures; Recess Appointments; Original Jurisdiction; Natural Born Citizen; Federalism; Letters of Marque and Reprisal; Title of Nobility and Privacy clauses are all treated thoroughly enough that even a political neophyte like myself grasped a basic understanding of these parts of our Constitution with out making me feel stupid.
    I came away with a much greater respect and admiration for the framers of the Constitution who were prescient to include these clauses to ensure a more free and open society than what they had left in Great Britain.
    My interest has been piqued enough that I will pursue more on this and similar subjects.

    0 out of 2 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted June 1, 2012

    Ant historian should check it out

    Witty, informative, entertaining, educational and enlightening.

    0 out of 2 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
  • Posted December 27, 2011

    An informative, quick and humorous read.

    The US Constitution can be a very sleepy read except for maybe those folks who make their living from in its interpretation and application. Even under those circumstances, I'm sure it's a far cry from riviting.
    Wexler does an excellent job of taking some of the least read and or understood clauses of the Constitution and makes them not only fun but pertinent. His stand on each is very obviously left of center which of course allows for even more fun given the right and far right are so tied up in themselves that nothing is fun and everything is threatening and insulting. I loved it and would like to see more serious legal subject matter addressed by this author.

    0 out of 2 people found this review helpful.

    Was this review helpful? Yes  No   Report this review
Sort by: Showing all of 8 Customer Reviews

If you find inappropriate content, please report it to Barnes & Noble
Why is this product inappropriate?
Comments (optional)