November 23, 2011
Jay Wexler’s new book shines light on the U.S. Constitution’s “unsung heroes”
By his own admission, BU Law Professor Jay Wexler made it though law school without really getting to know the U.S. Constitution. Sure, he took his share of constitutional law classes as a J.D. candidate at Stanford, studying well-known provisions such as the First Amendment and the Fourth Amendment. But a few years after he graduated, while working for the U.S. Department of Justice, Wexler came to the realization that he knew almost nothing about whole sections of our founding document—the “smorgasbord of clauses that hardly anybody ever talks about in law school, much less anyplace where normal people congregate.”
In his ignorance about the Constitution’s lesser-known passages, Wexler was probably typical of most law school graduates—and most practicing attorneys. What made him different was that he soon found himself itching to investigate and write about these constitutional backwaters. He waited about ten years to do it—“until I got tenure,” Wexler says—but eventually he followed through on his idea.
The book that grew out of that pursuit, The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions (Beacon Press), hit bookstores at the beginning of November. In the book, Wexler digs into some of the most obscure passages of the founding document—the Weights and Measures Clause, the Letters of Marque and Reprisal Clause, the Title of Nobility Clauses—and explores what these idiosyncratic and sometimes dated provisions reveal about our constitutional system.
“[If] the Constitution were a zoo,” Wexler writes in the book’s introduction, “and the First, Fourth, and Fourteenth amendments were a lion, a giraffe, and a panda bear, respectively, then this book is about the Constitution’s shrews, wombats, and bat-eared foxes. And believe me, if you’ve never laid eyes on a bat-eared fox before, you are in for a treat.”
The book looks at the history of the ten featured clauses, reviewing court decisions that have interpreted the provisions and controversies that have arisen around them. One of the themes that emerged from Wexler’s research is that the odd clauses of the Constitution often “rise and fall in prominence,” and that long-ignored provisions can suddenly become headline news after decades or centuries in hibernation. Take, for example, the Letters of Marque and Reprisal Clause, which gives Congress the power to grant letters of marque to private citizens, authorizing them to fight foreign ships and pirates on the government’s behalf. Congress hasn’t issued a letter of marque since the War of 1812, but as Wexler describes, that clause suddenly became front-page news in 2009 when U.S. Representative Ron Paul suggested that the government hire private ships to fight Somali pirates.
A harebrained idea? Maybe. But in Wexler’s opinion, granting letters of marque to privateers to fight Somali pirates would be perfectly legal under the Constitution. “So far, Paul’s proposals haven’t gone anywhere,” he writes, “but under slightly different circumstances—more pirates, a navy engaged in war elsewhere, a different political climate—they might.”
A member of the BU Law faculty since 2001, Wexler has taught classes in law and religion, the First Amendment, legislation, administrative law, environmental law and natural resources law, and has published numerous journal articles on these topics. He is also the author of Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars (Beacon Press, 2009), which Publishers Weekly called “a combination of thoughtful analysis and quirky humor that illuminates an issue that rarely elicits a laugh.”
That same quirky humor is everywhere in The Odd Clauses, though Wexler insists that he didn’t set out to write a humor book. “Humor is really subjective,” he noted in a recent interview for the BU Law Faculty Podcast Series. “I wanted to make it so that if you don’t like the humor, you still like the book.”
Since finishing the book, Wexler has become something of a go-to expert for the media on questions where constitutional minutia affect current events. During last summer’s debt ceiling crisis, for example, Wexler appeared on WNYC to weigh in on the question of whether the Public Debt Clause of the Fourteenth Amendment gave President Obama the authority to exceed the debt ceiling without congressional approval. (It did not, in Wexler’s opinion.) He has also appeared on programs such as WGBH’s Emily Rooney Show and NPR’s All Things Considered.
On November 10, Wexler gave a talk about The Odd Clauses at a book-launch event at Brookline Booksmith. The event was filmed by C-SPAN2, which plans to broadcast Wexler’s talk as part of its BookTV programming. BU Law will present a mini-symposium on the book on Monday, March 5, from 12:45 p.m. to 2:00 p.m. Watch the BU Law Web site for more details as the date approaches.
To listen to Wexler’s interview for the BU Law Faculty Podcast Series, visit the Web site of Legal Talk Network.