The Odd Clauses (2 page)

But which clauses to write about? The Constitution has a lot of seemingly odd clauses in it, and I didn't want to write an encyclopedia of the entire thing, so I had to winnow the clauses down to some manageable number. I ended up writing about ten, but in the course of thinking about the book, I considered close to twenty. I talked to a lot of people about a lot of clauses and presented the idea to the faculties of several law schools. Inevitably in these discussions, the question of what makes a clause “odd” would come up. It turned out that people had a lot of different theories of “oddness.” For some, it's the historically anachronistic clauses—like the one about how slaves would count as three-fifths of a person for determining a state's population (incidentally, this was included to
decrease
the influence of the slaveholding states in the national legislature)—that are particularly odd. For others, the real odd clauses are those where it's hard to understand
why
the framers would have included them. Still others suggested that the truly odd clauses are the ones that deal with relatively insignificant matters (creating post roads, for example) that seem to be beneath the dignity of the Constitution.

In the course of all these discussions, I thought a lot about oddness, and so I figure I should say a few words about what
makes me think a clause is “odd.” For me, it's the specificity of the clauses I've chosen to discuss that make them so intriguing.

The Constitution performs a set of incredibly important functions in establishing and structuring our democracy. It sets up the three branches of government, allocates powers among them, and keeps the branches separate. It lays out the division of power between the federal government and the states, provides the framework for our international relations, and sets out minimum qualifications for the nation's most important officers. It protects our privacy, our liberty, and our right to be treated by the government as equals.

To perform each of these critical functions, the Constitution uses two types of provisions. Some clauses are broad and exceptionally vague. With these clauses, it is almost impossible to know what they mean without seeing how courts actually apply them in specific cases. These tend to be the lions and tigers of constitutional law, like the First Amendment, which says that “Congress shall make no law . . . abridging the freedom of speech” or parts of Article I, Section 8, where the Constitution grants to the Congress such general powers as “regulat[ing] Commerce . . . among the several states” or making laws which are “necessary and proper” to carry out its functions.

In addition to these liony clauses, however, the framers of the Constitution also included a bunch of extremely narrow bat-eared-fox-like clauses to handle very specific issues and problems that related to their broad goals. Thus, while the Constitution protects equality generally through the Fourteenth Amendment's equal protection clause, it also protects equality through the title of nobility clauses, which prohibit the government from making anybody a duke or duchess. While the Constitution governs our foreign affairs by making the president the commander in chief and giving Congress the authority to declare war, it also authorizes the
granting of letters of marque and reprisal to private ships as a way of combating piracy. And while the Constitution allocates power between the federal government and the states through a complicated combination of general clauses, it also, through Section 2 of the Twenty-first Amendment, arguably gives states the authority to make laws governing intoxicating liquors that would otherwise violate a variety of constitutional commands.

It is worth noting one other important thing about these odd clauses. Because the clauses are so narrow, they can be understood fairly quickly without reading hundreds of complicated cases and five legal treatises to get a handle on them. This, in turn, makes these clauses much more convenient for talking and thinking about broad constitutional themes than some of the document's more nebulous clauses. To draw one last analogy to the animal kingdom, then, these odd clauses, in addition to being like shrews and wombats, are also like the drosophila fruit flies of the constitutional kingdom. They are funny little creatures that are uniquely suited to help us understand the larger kingdom of which they are a part. To that end, each of the book's ten chapters introduces one of the Constitution's odd clauses—its history, its stories, its controversies, its possible future—and then links the odd clause to some general principle or function of constitutional law (protecting privacy, separating powers, governing foreign affairs), so that you will come away from the book not
just
with a bunch of cool constitutional trivia, and not
just
with a lot of additional knowledge about some really important specific constitutional provisions, but also with a thorough understanding of our constitutional system generally.

Okay, step inside. The constitutional zoo is now open for business. Please don't feed the animals.

No Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Article I, Section 6

When presidents take office and are looking around to fill their most important posts, they often turn to former members of Congress as possible appointees. This is hardly surprising. Former members of Congress know their way around Washington and can jump right in to help achieve a president's policy goals. In the past few administrations, quite a few prominent former members of Congress have held high government office, from Jack Kemp to Al Gore to Dick Cheney to Hillary Clinton.

But have you ever noticed that nobody is ever both a bigwig official in the administration and an acting member of Congress
at the same time?
Have you ever wondered why that is? It's not because nobody would gain from such an arrangement—presidents would be able to gain support for their programs by promising members of Congress plum positions; members of Congress would gain power and
prestige; and the members' constituents would have influence in not one but two branches of the government. It's also not because no country has ever tried such a thing—several Western democracies, including England and Israel, have governments in which members of the legislature also exercise some forms of executive power. And it isn't because nobody has ever proposed such an arrangement in the United States. Many influential thinkers and politicians—from Woodrow Wilson in the nineteenth century to former White House counsel Lloyd Cutler and a bevy of his followers in the twentieth century—have strongly urged that members of Congress be allowed to simultaneously hold office in presidential administrations.

The reason that nobody in the United States is ever both a member of Congress and an official in the executive branch is that the Constitution's “incompatibility clause” flatly prohibits it. Concerned about the abuse and corruption that they saw in seventeenth-century England and in the early American colonies—both the king and the English administrators responsible for the colonies would basically bribe legislators to support their flawed policies with promises of high executive office—the framers of the Constitution made it one of their top priorities to ban dual office-holding. Some of the framers even wanted to ban members of Congress from
ever
becoming executive officers. James Madison, however, thought this went too far and proposed the incompatibility clause in its current form, which is why it was constitutional for Kemp, Gore, Cheney, and other members of Congress to assume top positions in the executive branch once they resigned from their legislative positions.

Well, except maybe for Hillary Clinton as secretary of state, but we'll get to that.

As every American learns in grade school, the structure of the United States' constitutional democracy is distinguished by its
separation of powers.
How exactly, though, does the Constitution create this structure? There is no separation-of-powers clause in the document. Indeed, the Constitution doesn't use the phrase “separation of powers” at all. It doesn't say anything that even remotely resembles “separation of powers.” It doesn't say, for example, that “the powers shall remain separate,” or “separate the powers shall always be,” or “powers, you stay the hell away from each other,” or anything of the sort.

To understand the US system of separation of powers, it is critical to recognize that the Constitution—appropriately, given its name—
constitutes
the federal government. In other words, rather than limiting a government that already exists, the document actually creates the federal government out of nothing. Specifically, the first three articles of the Constitution create the three branches of government: Article I creates the Congress and gives it certain enumerated legislative powers (discussed in chapter 2). Article II creates the office of president and gives it the “executive power” (discussed in chapter 3). And Article III creates the federal judicial system and gives it the “judicial power” (discussed in chapter 4). None of the branches possesses any power from any source other than the Constitution. This means that for any branch of government to act, it has to find authorization for that action somewhere in the Constitution.

In addition to doling out powers to each branch, the Constitution sets out the procedures that the federal government must follow when carrying out certain important actions, like appointing top officials or impeaching officials gone bad or passing laws. For many of these actions, the Constitution will give specific roles to more than one branch, so that no single branch can do anything all by itself. Thus, for example, the Constitution gives the president the authority to nominate
principal officers like cabinet members or federal judges, but the nominations are subject to Senate confirmation. The Congress can pass bills, but a bill cannot become law until the president signs it (unless a supermajority of both congressional houses overrides the president's veto). The Senate holds a hearing on whether to impeach the president, but the chief justice of the Supreme Court presides over the hearing. The Congress and the president make policy for the government, but the judicial branch can determine if the actions of the other two branches are unconstitutional (this power, that of “judicial review,” is not super explicit in the Constitution, but the Supreme Court announced it early on, and it's existed ever since). In each of these cases, one of the three branches has the power to check the action of another branch, thus keeping the power of all three branches in a state of balance. Thus the proverbial “checks and balances,” another phrase that does not appear in the Constitution itself.

In addition to checks and balances, however, the notion of separation of powers includes the more abstract idea that, by creating three different branches, each with its own enumerated powers, the Constitution implicitly provides that those specific powers belong primarily, if not exclusively, to the branch to which they are assigned and not to any other branch. So, for instance, as we'll see in greater detail in chapter 3, Article II of the Constitution gives the “executive power” to the president. Presumably, then, only presidents (and those to whom they delegate their power) should be able to exercise this executive power, whatever that power might include. Moreover, presidents could plausibly argue that since the executive power belongs to them and them alone, other branches should not be able to infringe upon their exercise of that power, except if the Constitution explicitly allows for such a check, as for example it does when it gives the Senate the power to veto top presidential appointments.

This might seem straightforward, but in practice it gets messy. Part of the problem is that it's not always clear what actually counts as “legislative power” or “executive power” or “judicial power.” If the Environmental Protection Agency makes a rule limiting the amount of sulfur dioxide that light trucks can emit per mile traveled, or the Federal Communications Commission bans celebrities from saying dirty words like “shit” or “shitbag” on television, are those legislative actions or executive ones? If the agency then fines a company or celebrity for breaking its rule, and then rejects an appeal of the fine, is that an executive decision or a judicial one? Yes, the EPA is controlled by the president, and the president appoints the heads of the FCC, but the rules sure seem like the kind of general laws that we expect from legislatures, and deciding appeals sure seems judicial, doesn't it? It should also come as no surprise, given human nature, that the various branches might try to take a little bit of extra power for themselves if they figure they can get away with it. As a result, the federal government is riddled with examples of practices that are arguably inconsistent with the notion of separate powers. For instance: presidents have employed troops for military purposes countless times in the absence of congressional authorization. Congress has passed hundreds of laws dictating that the president can only appoint various high officials if they possess certain qualifications (a PhD in botany, for instance, or a certain political party affiliation). Courts set out rules—like the one from
Miranda v. Arizona
telling the police exactly what they have to tell suspects in custody—that seem almost like legislative ones. Some of these arrangements are at least arguably inconsistent with the kind of government the framers thought they had created.

From time to time, disputes involving these arrangements have made it to the Supreme Court, which unfortunately has not provided a whole lot of clarity about what's constitutional
and what isn't. Sometimes—like in the 1926 case of
Myers v. United States,
where the Court held that Congress could not give the Senate the right to veto the president's firing of an executive postmaster—the Court has been strict in policing the branches. Other times, as in the 1988 case of
Morrison v. Olson,
when seven justices approved of a statute creating the position of independent counsel—basically a prosecutor appointed by a special court, who is not controlled by anyone inside the executive branch—the Court has been more lenient. As a result of this lenience, the nation was treated a decade later to Kenneth Starr's $40 million witch hunt of President Bill Clinton. When one of these separation-of-powers cases comes before the Court, it's basically anybody's guess what's going to happen. Most of the time, though, the Court has been willing to tolerate at least some interbranch infringement or intermingling, much to the chagrin of some of the so-called formalists on the bench and elsewhere (Clarence Thomas?) who think that the entire modern federal government is unconstitutional.