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

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

by Jay Wexler

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Product Details

ISBN-13: 9780807000892
Publisher: Beacon Press
Publication date: 09/04/2012
Edition description: New Edition
Pages: 240
Sales rank: 341,686
Product dimensions: 5.20(w) x 8.30(h) x 0.50(d)

About 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

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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.

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


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Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions 2.9 out of 5 based on 0 ratings. 16 reviews.
Anonymous More than 1 year ago
Terrible treatment of what should be an interesting subject. I'm sorry I wasted good money on this piece of trash.
Anonymous More than 1 year ago
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.
Anonymous More than 1 year ago
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.
Anonymous More than 1 year ago
I wish I had read the reviews before I bought this. I will be more careful in the future.
don_car1 More than 1 year ago
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.
Hedgepeth on LibraryThing 5 months ago
Jay Wexler does a decent job of examining some of the less frequently cited clauses of the Constitution. Even when detecting a slightly liberal lean, he writes in such a way as to appeal to many readers. The one thing I really didn't care for was his fictional accounting of what takes place in the Supreme Court chambers. I didn't care for this insertion of fiction in what should be a non-fiction work. If those sections were removed, I could actually strongly recommend this book as an introduction to government for teenage readers.
charlottem on LibraryThing 5 months ago
The Book is very funny, even if you don¿t agree with all Mr. Wexler¿s opinions.
oldbookswine on LibraryThing 5 months ago
A book I might not have picked at a store but found to be an excellent read. In today's world where misstatements appear everywhere this little book put you on firm ground with the Constitution's little known clauses. Using todays newspaper headlines, in some cases, the author explains the Birther position, the appointment of Hillary Clinton and the third amendment, as well as other issues. Written with humor but solid evidence and support of other experts, the reader feel find much to remember and use in discussions. Only the chapter on Nobility chapter tended to be a bit much. I would find it interesting if the author has noted that in each presidential election someone searches out the candidates family connections to the European royal families.Recommended to all who want to be informed. Young Adults will find a term paper here.
michigantrumpet on LibraryThing 5 months ago
Jay Wexler, professor at Boston University School of Law, takes us on a delightful romp through ten of the little read, rarely regarded and misunderstood clauses of the U.S. Constitution. These ten clauses serve as a vehicle to shine light on constitutional principles and interpretation. Wexler uses real life and apt examples to illustrate his points. In one chapter you can find him using the Mars orbiter's crash (due to a discrepency between newton-seconds and pounds-seconds) to explain the "weights and measures" clause and along the way, legislative powers. Also finding treatment are the Incompatibility clause (separation of powers), the Recess-Appointment Clause(presidential powers), the Original Jurisdiction clause (judicial powers), the Natural Born Citizen Clause (election law and constitutional interpretation), the Twenty-First Amendment (federalism), the Letters of Marque and Reprisal clause (foreign affairs), the Title of Nobility clauses (equality), the Bill of Attainder clauses (liberty) and the Third Amendment (privacy). Wexler's writing is quite accessible and entertaining. References to Scooby-Doo, the Friends sitcom ("We were on a BREAK!") and 'Bootylicious' are sure to appeal to younger, hip readers. You do NOT have to be a lawyer or constitutional scholar to find this book entertaining and informative. Unlike another reviewer, I particularly liked his review of the natural-born citizen clause. It was interesting to note that John McCain was born in the Panama Canal Zone, which could call into question whether he was a "natural born citizen." Does the place of birth have to be within the contiguous states? Is everyone born in places such as the Panama Canal Zone (or the Phillipines before 1946) a U.S. citizen? Here is Constitutional fun for everyone. Wexler has a liberal bent, but usually does credit other points of view. He notes where the constitutional basis for his perspective is weak. On an note of full disclosure, he teaches at my alma mater, but I have never met the man. I can imagine he would be a very enagaging an popular professor. I would recommend this book to anyone.
melopher on LibraryThing 5 months ago
Bias in a book about law is to be expected. However, it occasionally got so extreme in this book that I was almost embarrassed for the author. Any time half of the country's population is called "nauseating" and "silly" there is credibility lost. After reading half of the book, I decided that I couldn't trust his representation of anything. That's unfortunate, since he actually did a good job at making complicated issues accessible.
TLCrawford on LibraryThing 5 months ago
In ¿The Odd Clauses : Understanding the Constitution through ten of its most curious provisions ¿Jay Wexler shows us how the Constitution has been interpreted through history. Wexler is obviously qualified to write about the Constitution, as an attorney in the Justice Department¿s Office of legal Counsel much of his work involved giving opinions on the constitutionality of proposed legislation and executive actions, but that does not explain how he developed the entertaining and conversational writing style that make his book such a pleasure to read. He clearly shows the differences between the strict literalists and those who feel the Constitution is a living document. By looking at ten relatively minor, uncontroversial, provisions he manages to avoid the inherent controversy that would result from discussing the various interpretations of, for instance, the First and Second Amendments.He compares these ¿odd clauses¿ to the zoo¿s moles and shrews where the lions and bears, for instance, are the First and Second Amendments. I believe he made a good comparison, everyone goes to see the lions and bears but to a zoologist the moles and shrews are equally important. This comparison also works well with Wexler¿s light-hearted writing style which keeps the book entertaining and at same time informative.My one concern with the book is that half the people who would read it are going to discard it over the light-hearted (disrespectful?) way Wexler summarizes political events as he uses them to discuss the real world application of these constitutional clauses. Personally I agreed with everything he said, except he did lose me for a bit by saying that John Yoo, of the Bush Torture memos, made a reasonable argument on another subject. I doubt that my conservative friends will read that far. In my opinion the book is ever so slightly left of ¿fair and balanced¿ but I am afraid we are so divided these days that the smallest perceived slight will turn away readers.
antiquary on LibraryThing 5 months ago
It is rare for a work on constitutional law to make me laugh out loud, but this did. The imaginary dialogue among the justices in interpreting te 21st Amendment is unexpectedly hilarious. It is more remarkable that I like this book as the author is frankly a liberal Democrat who worked for President Clinton and takes a much broader view of interpreting the constitution than I do. Still, he is honest enough to point out that constitution interpretations of issues like presidential appiointment powers tend to vary depending on which party controls the presidency, and even to say of the Griswiold decision ```````````"this sounds more like it is describing a haunted house from Scooby-D~oo than` the U.S. Constitution. "Eeeek, it's the emenation of the penumbra of the Third Amendment." A few lines like that are enough to make even a relatively strict textualist like myself forgive lines about Justice Scalia biting his gavel. I caught only two actual errors 1) contrary to common belief, the Society of the Cincinnati did not drop its hereditary requirement --such a proposal was made,but not passed, and the Society is hereditary to this day, as its website confirms 2) again, contrary to common belief, Prohibtion really did cut the amount of alcohol consumed in America substantially, though obviously not totally --see Sismondo's America Walks into a Bar.and more scholarly studies cited tere.
Anonymous More than 1 year ago
iluvvideo More than 1 year ago
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.
Anonymous More than 1 year ago
Witty, informative, entertaining, educational and enlightening.
M-Dugan More than 1 year ago
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.