The Odd Clauses

by Jay Wexler

  Clearly, such a lack of litigation bears no necessary correlation to the importance of the subject matter. As recognized by our sister circuit, for example, in the 216 years since the adoption of the Third Amendment to the United States Constitution, “[j]udicial interpretation of [that provision] is nearly nonexistent.” . . . The Third Amendment’s prohibition on the quartering of soldiers in private residences without consent is, however, one of the constitutional bulwarks protecting privacy rights inherent in American citizenship. Especially in this time of seemingly unfettered governmental efforts to intrude into private realms, I would hope that the majority would not equate the “nearly nonexistent” litigation involving the Third Amendment with a lack of importance of the principles protected by that provision.

  Judge Daughtrey’s point about the Third Amendment not being irrelevant just because it never gets litigated is broadly relevant to the odd clauses that I’ve discussed in this book. These clauses rarely make it anywhere near a courtroom. As Judge Daughtrey suggests, though, you can’t always judge a provision by its visibility. The Constitution’s odd clauses—whether they are giving power to the three branches of government or keeping the branches separate or protecting the liberty, privacy, and equality of the citizens governed by those branches—are well worth our attention, even if hardly anybody has ever heard of them, until now.

  Okay, the constitutional zoo is now getting ready to close. Thank you so much for coming. Please exit through the gift shop.

  Acknowledgments

  I would like to thank the faculties at the Boston University School of Law, the Saint Louis University School of Law, and the University of Colorado School of Law for helpful discussions about this book and comments on drafts of various chapters, as well as the following supergreat individuals who helped me so much and without whom this book would not exist: Helene Atwan, Mark Dahl, Ellen Geiger, Carlos Maycotte, Michael O’Malley, Maureen O’Rourke, Karen Tokos, Caitlin Meyer, Allison Trzop, Paz Valencia, Fred Wexler, Mary Wexler, and Walter Wexler.

  Notes

  For general reading about the Constitution, I recommend the following: Akhil Reed Amar, America’s Constitution: A Biography (New York: Random House, 2006); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale University Press, 1998); Erwin Chemerinsky, Constitutional Law: Principles and Policies (New York: Aspen, 2006); and Laurence H. Tribe, American Constitutional Law, 3rd ed. (New York: Foundation, 2000).

  CHAPTER 1: THE INCOMPATIBILITY CLAUSE

  The best overall account of the incompatibility clause is Steven G. Calabresi and Joan L. Larsen, “One Person, One Office: Separation of Powers or Separation of Personnel?” Cornell Law Review 79, no. 5 (1994): 1045–1157. For a nice description and defense of separation of powers generally, check out Martin H. Redish and Elizabeth J. Cisar, “ ‘If Angels Were to Govern’: The Need for Pragmatic Formalism in Separation of Powers Theory,” Duke Law Journal 41, no. 3 (1991): 449–506. To see what the framers had to say about separation of powers, one good place to look is The Federalist Papers, especially nos. 47, 48, and 51. The case where the Court held that Congress could not reserve to itself the right to veto the president’s firing of an executive officer is Myers v. United States, 272 U.S. 52 (1926). The case where the Court approved of a statute creating the independent counsel is Morrison v. Olson, 487 U.S. 654 (1988). The phrase “bankrupts, bullies, and blockheads,” is reported from Calabresi and Larsen’s “One Person, One Office,” p. 1057, which itself quotes from the classic historical work Gordon S. Wood, The Creation of the American Republic, 1776–1787 (1969), which in turn quotes a March 26, 1778, issue of the Boston Independent Chronicle. For the debate over whether the president must step down from a congressional seat upon taking the oath of office, see the following: Seth Barrett Tillman, “Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause,” Duke Journal of Constitutional Law & Public Policy 4 (2009): 107–41; Saikrishna Bangalore Prakash, “Why the Incompatibility Clause Applies to the Office of the President,” Duke Journal of Constitutional Law & Public Policy 4 (2009): 143–51. For the lower federal-court case on the military reservists, see Reservists Committee to Stop War v. Laird, 323 F. Supp 833 (1971). For the Supreme Court case, see Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974). For historical discussions of the executive branch’s meandering interpretation of the ineligibility clause, see Daniel H. Pollitt, “Senator/Attorney-General Saxbe and the ‘Ineligibility Clause’ of the Constitution: An Encroachment Upon Separation of Powers,” North Carolina Law Review 53, no. 1 (1974): 111–33, and Michael Stokes Paulsen, “Is Lloyd Bentsen Unconstitutional?” Stanford Law Review 46, no. 4 (1994): 907–18. For the last two OLC opinions on the ineligibility clause, see Memorandum Opinion for the Attorney General from David J. Barron, Acting Assistant Attorney General, “Validity of Statutory Rollbacks as a Means of Complying with the Ineligibility Clause,” May 20, 2009, available on the Web site of the Office of Legal Counsel, www.justice.gov/olc/. The Cooper memorandum on Orrin Hatch had not previously been released until the release of the May 2009 memorandum, although at least one scholar—Michael Paulsen, whose aforementioned piece on Lloyd Bentsen is a fascinating and entertaining read that I rely on for the story about Bork, Hatch, and Kennedy—had suspected that such a memorandum existed. Paulsen speculates that if it weren’t for the Reagan administration’s strict adherence to the text of the ineligibility clause, perhaps Roe v. Wade might have been overruled, since it is unlikely that Orrin Hatch would have joined any sort of opinion upholding the earlier case, as Justice Anthony Kennedy did in the case Planned Parenthood v. Casey in 1992. The two commentators who think the incompatibility clause is responsible for keeping our government from becoming parliamentary-like are Calabresi and Larsen, cited above. To read the views of the separation-of-powers critics, see Donald L. Robinson, ed., Reforming American Government: The Bicentennial Papers of the Committee on the Constitutional System (Boulder, CO: Westview, 1985). To read an excellent critique of these views, see Thomas O. Sargentich, “The Limits of the Parliamentary Critique of the Separation of Powers,” William and Mary Law Review 34, no. 3 (1993): 679–739.

  CHAPTER 2: THE WEIGHTS AND MEASURES CLAUSE

  On the Mars climate orbiter fiasco, see the following: John Noble Wilford, “Mars Orbiting Craft Presumed Destroyed by Navigation Error,” New York Times, September 24, 1999; Andrew Pollack, “Two Teams, Two Measures Equaled One Lost Spacecraft,” New York Times, October 1, 1999. The case involving the California toad is Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (DC Circuit 2003). The citation for Lopez is 514 U.S. 549 (1995). The Violence Against Women Act case is United States v. Morrison, 529 U.S. 598 (2000). The case involving medical marijuana is Gonzalez v. Raich, 545 U.S. 1 (2005). The article that suggests Congress had exercised all of its powers before it ever exercised its weights and measures power is David P. Currie, “Weights and Measures,” Green Bag 2, no. 3 (1999): 261–66. This article also discusses the early history of the weights and measures clause, including the various commissioned reports of Jefferson and Adams. The report of the academic committee from New York, which includes Adams’s famous report, is Charles L. Davies, The Metric System, Considered with Reference to Its Introduction into the United States; Embracing the Reports of the Hon. John Quincy Adams, and the Lecture of Sir John Herschel (New York and Chicago: A. S. Barnes & Co., 1871). For the story about how the official kilogram is shedding a tiny bit of its weight every year, see Otto Pohl, “Scientists Struggling to Make the Kilogram Right Again,” New York Times, May 27, 2003. For a history of the United States Metric Board, see United States Metric Association, History of the United States Metric Board, http://lamar.colostate.edu/~hillger/laws/usmb.html. Also see David Bjerklie, “What Ever Happened to Metric?” Time, July 6, 1987. For the most recent case on the “intelligible principle” doctrine, see Whitman v. American Trucking Association, 531 U.S. 457 (2001). Fo
r Mankiewicz’s account of his conspiracy with Nofziger to get rid of the Metric Board, see Frank Mankiewicz, “Nofziger: A Friend with Whom It Was a Pleasure to Disagree,” Washington Post, March 29, 2006.

  CHAPTER 3: THE RECESS-APPOINTMENTS CLAUSE

  The controversial appointee who was accused of being racially insensitive was Charles Pickering. For more on his nomination, see Neil A. Lewis, “Bush Seats Judge after Long Fight, Bypasses Senate Democrats,” New York Times, January 17, 2004. The judge who was proud of ruling against children with birth defects was Priscilla Owens. For more on her nomination, see David D. Kirkpatrick, “For Judge Owen, Self-Reliance in Life and Law,” New York Times, May 26, 2005. On Pryor, see Sheryl Gay Stolberg, “A Different Timpanist,” New York Times, June 10, 2005. The following are excellent academic articles on the recess-appointments clause; I relied on these sources for much of my discussion of the clause, its history, and the issues it has raised: Edward A. Hartnett, “Recess Appointments of Article III Judges: Three Constitutional Questions,” Cardozo Law Review 26, no. 2 (2005): 377–442; Michael Herz, “Abandoning Recess Appointments? A Comment on Hartnett (and Others),” Cardozo Law Review 26, no. 2 (2005): 443–62; and Michael B. Rappaport, “The Original Meaning of the Recess Appointments Clause,” UCLA Law Review 52, no. 5 (2005): 1487–1578. Another excellent source of information is Henry B. Hogue, CRS Report for Congress—Recess Appointments: Frequently Asked Questions (Washington, DC: Congressional Research Service, 2008). The commentator who talks about vacations as “happening” is Hartnett, “Recess Appointments of Article III Judges,” at pp. 382–83. The New York Times editorial was published on December 8, 1903. The Knox opinion is “President—Appointment of Officers—Holiday Recess,” Official Opinions of the Attorney General of the United States 23 (December 24, 1901). The Daugherty opinion is “Executive Power—Recess Appointments,” Official Opinions of the Attorney General of the United States 33 (August 27, 1921). The opinion about public committees starting off their sessions with sectarian prayers is Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008). On the issue of whether the Senate can terminate the president’s recess appointments, see Seth Barrett Tillman, “Senate Termination of Presidential Recess Appointments,” Northwestern University Law Review Colloquy 103 (January 2009): 286–91, and Brian Kalt, “Keeping Recess Appointments in Their Place,” Northwestern University Law Colloquy 103 (January 2009): 292–97. These two have written other articles on the subject, but I’ll spare you. Kalt’s article about Idaho is “The Perfect Crime,” Georgetown Law Journal 93, no. 2 (2005): 675–88. The court of appeals decision in the Pryor case is Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).

  CHAPTER 4: THE ORIGINAL-JURISDICTION CLAUSE

  The Ellis Island case is New Jersey v. New York, 523 U.S. 767 (1998). The case where a federal appellate court ruled that New York law applied on the island is Collins v. Promark Products, 956 F.2d 383 (2nd Cir. 1992). The “judicial review” case is Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). The statute that gives district courts concurrent jurisdiction over most of the types of cases that fall under the Supreme Court’s original jurisdiction is 28 U.S.C. § 1251. The most comprehensive source for information about state-versus-state cases, and a book on which I draw heavily for my information and categorization of the various cases, is Joseph F. Zimmerman, Interstate Disputes: The Supreme Court’s Original Jurisdiction (Albany: State University of New York, 2006). Cites for all of the state-versus-state cases discussed in the chapter can be found in Zimmerman’s book, but here are citations for a few of the cases discussed here: Texas v. Florida, 306 U.S. 398 (1939); New Mexico v. Texas, 275 U.S. 279 (1927); Missouri v. Illinois, 200 U.S. 496 (1906). The Time magazine article about the Maine–New Hampshire dispute is “New England: Lobster War,” July 2, 1973. The best source of information about the special masters is Anne-Marie C. Carstens, “Lurking in the Shadows of Judicial Process: Special Masters in the Supreme Court’s Original Jurisdiction Cases,” Minnesota Law Review 86, no. 3 (2001): 625–716. Other articles on the original-jurisdiction clause include James Pfander, “Rethinking the Supreme Court’s Original Jurisdiction in State-Party Cases,” California Law Review 82, no. 3 (1994): 555–662; and “The Original Jurisdiction of the United States Supreme Court,” Stanford Law Review 11 (July 1959): 665–700. A short and funny piece on Supreme Court jury trials is Robert A. James, “Instructions in Supreme Court Jury Trials,” Green Bag 1, no. 4 (1998): 377–80.

  CHAPTER 5: THE NATURAL-BORN CITIZEN CLAUSE

  The symposium put together by William Eskridge and Sanford Levinson is called “Constitutional Stupidities: A Symposium,” Constitutional Commentary 12, no. 2 (1995): 139–225. The symposium was later turned into a book: William N. Eskridge and Sanford Levinson, eds., Constitutional Stupidities, Constitutional Tragedies (New York: New York University Press, 1998). The point about getting no points for condemning the fugitive slave law was made by Lief Carter, “ ‘Clause and Effect’: An Imagined Conversation with Sanford Levinson,” Constitutional Commentary 12, no. 2 (1995): 155–58. The professor who called the symposium “vapid” was Phillip Bobbitt, “Parlor Game,” Constitutional Commentary 12, no. 2 (1995): 151–54. The critic of life tenure who likened the United States to China was L. A. Powe Jr., “Old People and Good Behavior,” Constitutional Commentary 12, no. 2 (1995): 195–97. The two articles criticizing the natural-born citizen clause in the symposium were Randall Kennedy, “A Natural Aristocracy?” Constitutional Commentary 12, no. 2 (1995): 175–77, and Robert Post, “What Is the Constitution’s Worst Provision?” Constitutional Commentary 12, no. 2 (1995): 191–93. Post is the one who called the clause a “vestigial excrescence.” The case holding term limits unconstitutional is U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). On the age requirement for president, the case in which Frankfurter noted that it “draws on arithmetic” is National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 646 (1949) (Frankfurter, J., dissenting). For the argument that “thirty-five” means sufficiently mature or experienced, see Giradeau Spann, “Deconstructing the Legislative Veto,” Minnesota Law Review 68 (1984): 532. For the extension of that argument, see Gary Peller, “The Metaphysics of American Law,” California Law Review 73 (1985): 1174. On the “unstoppable virus,” see Anthony D’Amato, “Aspects of Deconstruction: The ‘Easy Case’ of the Under-Aged President,” Northwestern University Law Review 84 (1990): 255. For the “teenage guru,” see Mark Tushnet, “A Note on the Revival of Textualism in Constitutional Theory,” Southern California Law Review 58 (1985): 686–88. For criticism of the natural-born citizen clause, see Frederick Schauer, “Constitutional Invocations,” Fordham Law Review 65 (1997): 1301 (“morally dubious”); William Safire, “The Constitution’s Flaw,” New York Times, September 6, 1987 (“blatantly discriminatory”); John W. Dean, “The Pernicious ‘Natural Born’ Clause of the Constitution,” FindLaw, Writ, October 8, 2004, http://writ.news.findlaw.com/dean/20041008.html (“lowdown dirty shame” and “inane”; “Permit me”); Post, “What Is the Constitution’s Worst Provision?” (“highly objectionable”). For excellent general articles discussing the history and meaning of the natural-born citizen clause, see Jill A. Pryor, “The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty,” Yale Law Journal 97, no. 5 (1988): 881–900; Christina S. Lohman, “Presidential Eligibility: The Meaning of the Natural-Born Citizen Clause,” Gonzaga Law Review 36, no. 2 (2000–01): 349–74; and Sarah Helene Duggin and Mary Beth Collins, “ ‘Natural Born’ in the USA: The Striking Unfairness and Dangerous Ambiguity of the Constitution’s Presidential Qualifications Clause and Why We Need to Fix It,” Boston University Law Review 85, no. 1 (2005): 53–154. For the Bob Hope example, see Schauer, “Constitutional Invocations,” at p. 1302, n. 28. Information about the birther movement is everywhere on the Web. For one good account, see Alex Koppelman, “Why the Stories about Obama’s Birth Certificate Will Never Die,” Salon, December 5, 200
8, http://www.salon.com/news/feature/2008/12/05/birth_certificate. On the number of people who think Obama was born abroad, see Dalia Sussman and Marina Stefan, “Obama and the ‘Birthers’ in the Latest Poll,” New York Times, April 21, 2010. The Washington, DC, judicial opinion is Hollister v. Soetoro, 601 F.Supp. 2d 179 (D.D.C. 2009). The opinion from California is Barnett v. Obama (C.D. Cal. Oct. 29, 2009). The opinion from Georgia is Rhodes v. MacDonald (M.D. Ga. Sept. 18, 2009). For Medved’s comments, see Ben Smith, “Culture of Conspiracy: The Birthers,” Politico, March 1, 2009. For the argument about Obama being a kitten and meowing all day long, see Teo Bear, “Birthers and Dualers are Constitutionalists,” http://www.birthers.org/misc/birthersdualers.html (last accessed May 26, 2010). For the Tribe-Olson memo on McCain, see appendix A: “Opinion of Laurence H. Tribe and Theodore B. Olson Dated March 19, 2008,” in Gabriel J. Chin, “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship,” Michigan Law Review First Impressions 107 (2008): 19–21, http://www.michiganlawreview.org/assets/fi/107/chin.pdf. For the argument in favor of McCain responding to Chin, see Stephen E. Sachs, “Why John McCain Was a Citizen At Birth,” Michigan Law Review First Impressions 107 (2008): 49–57, http://www.michiganlawreview.org/assets/fi/107/sachs.pdf. The current succession statute is located at 3 U.S.C. § 19. James Ho’s piece is “Unnatural Born Citizens and Acting Presidents,” Constitutional Commentary 17, no. 3 (2000): 575–86. Ho quotes Demolition Man in his footnote 10.