Sunday, January 1, 2012

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

Posted by Kurt

I went to a prestigious law school, and I've been practicing as a public defender for more than five years, and until I read this book, I thought I didn't like Constitutional law.  The big Constitutional cases tended to be confusing and dishonest examples of judges using implausible means to reach the ends they thought were most just (Wexler completely wins my heart again when he comments that Supreme Court justices like three-part tests almost as much as they like big corporations), and they tended to look much more like politics than legal reasoning.  Through these odd clauses, though, Wexler has made me respect the Constitution (and the history of its interpretations) much more.

Wexler's choice of subject matter may seem a bit random at first, and in fact he self-deprecatingly downplays his choices by repeatedly analogizing them to obscure zoological curiosities.  He avoids the big issues like First Amendment freedoms and Roe v. Wade, choosing to focus on things like the requirement that the President be a "natural born citizen," or the prohibition against titles of nobility, or the Third Amendment protection against having troops quartered in your home against your will.  This makes for a quirky tour of the back roads of the Constitution, but it is also secretly genius.  See, when most scholars want to address Constitutional privacy rights, they tend to go to issues relating to sex and reproduction (anti-sodomy laws, abortion, contraception).  Of course, these are the areas where Constitutional privacy rights are most directly discussed (along with the arguments that Constitutional privacy rights are a legal fiction in the first place), but they are also emotional and personal issues, and I think it is rare for an honest debate about abortion rights to stay at a rational and theoretical level where participants stick to issues of legal interpretation.  In the bigger picture, that may be a good thing for humanity as a whole, but it makes for intellectually suspect analysis.  When Wexler comes at the privacy issue from the angle of the Third Amendment, however, he sidesteps the emotion and frees himself to explore what the Constitution says and doesn't say (most people probably don't get overwhelmed by the emotions relating to private quartering of troops).  In the same way, he can explore citizenship issues through Constitutional qualifications for the Presidency without the emotional land mines inherent in immigration debates, or equality issues through the prohibitions on titles of nobility, etc.  I believe now that the Constitution is a much more fascinating document than I had thought before reading the book, largely because Wexler's tour shows me how much value and texture and nuance it has when it isn't being manipulated for political ends.

I definitely recommend this book for lawyers, but I also think it will make a great graduation gift for anyone heading to law school, or even a high school senior looking to take some government classes at the college level.  Wexler is clear, thorough, engaging, and truly funny (that last part may depend a bit on the perspective of the reader, sorry - a joke about a hypothetical conservative majority banning NPR and compassion made me laugh out loud and share the exact wording with my fellow liberal friends, but I can see how Wexler's openly liberal perspective may grate on committed conservatives).  Anyone interested in a meaty discussion of the Constitution will love this book.

(And I think I'm supposed to disclose that I received my copy for free from the Amazon Vine program)

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