The Odd Clauses

by Jay Wexler

  CHAPTER 6: THE TWENTY-FIRST AMENDMENT

  The bottomless-dancing case is California v. Larue, 409 U.S. 109 (1972). Okrent’s terrific book about Prohibition is Daniel Okrent, Last Call: The Rise and Fall of Prohibition (New York: Scribner, 2010). Tribe’s piece about the Twenty-first Amendment is Laurence H. Tribe, “How to Violate the Constitution without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment,” Constitutional Commentary 12 (1995): 217–21. For the discussion of “maximalist” and “minimalist” interpretations of Section 2, see Jonathan M. Rotter and Joshua S. Stambaugh, “What’s Left of the Twenty-first Amendment?” Cardozo Public Law, Policy, & Ethics Journal 6, no. 3 (2008): 601–50. The California beer tax case is State Board of Equalization v. Young’s Market Co., 299 U.S. 59 (1936). The topless-dancing case is New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981). The Y chromosome 3.2 percent beer case is Craig v. Boren, 429 U.S. 190 (1976). The Rhode Island liquor-advertising case is 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). The Court has upheld nude dancing and other adult-entertainment regulations on the grounds that these regulations target the secondary effects of the dancing, rather than the entertainment itself—see City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986)—or because nude dancing is conduct rather than speech, or because regulation of nude dancing is justified by moral concerns, see Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). The Puerto Rico no-serving-alcohol-in-the-wee-hours-of-the-morning case is Broadwell v. San Juan, 312 F.Supp.2d 132 (D. Puerto Rico 2004). The Missouri pool hall case is Spudich v. Smarr, 931 F.2d 1278 (8th Cir. 1991). The Yablon-Zug piece is Marcia Yablon, “The Prohibition Hangover: Why We Are Still Feeling the Effects of Prohibition,” Virginia Journal of Social Policy & the Law 13 (Spring 2006): 552–95. For an excellent account of what Section 2 was supposed to mean, see Asheesh Agarwal and Todd Zywicki, “The Original Meaning of the 21st Amendment,” Green Bag 8, no. 2 (2005): 137–43. The Hawaii pineapple-wine case is Bacchus Imports, Ltd. v. Dias, 468 U.S. 263 (1984). The case striking the discriminatory Michigan and New York laws is Granholm v. Heald, 544 U.S. 460 (2005).

  CHAPTER 7: THE LETTERS OF MARQUE AND REPRISAL CLAUSE

  For the full story of the Maersk Alabama, see Robert D. McFadden and Scott Shane, “In Rescue of Captain, Navy Kills 3 Pirates,” New York Times, April 13, 2009, and Mark Mazzetti and Sharon Otterman, “U.S. Captain Is Hostage of Pirates; Navy Ship Arrives,” New York Times, April 9, 2009. On Paul’s suggestion to use letters of marque to fight pirates, see Erika Lovley, “Ron Paul’s Plan to Fend Off Pirates,” Politico, April 15, 2009. For Ely’s point about Congress’s authority to instigate all hostilities, see John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (Princeton, NJ: Princeton University Press, 1995). The other pro-Congress scholar quoted is Louis Fisher, from his Presidential War Power (Lawrence: University Press of Kansas, 1995). The quote from John Yoo on presidential authority to instigate hostilities is from “The Continuation of Politics by Other Means: The Original Understanding of War Powers,” California Law Review 84 (March 1996): 167–305. To read the “torture memo” and other related documents from the Bush administration, take a look (if you can bear to) at Karen J. Greenberg and Joshua L. Dratel, eds., The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005). The “dynamic duo” is David J. Barron and Martin S. Lederman; the quote is from their article “The Commander in Chief at the Lowest Ebb—A Constitutional History,” Harvard Law Review 121, no. 4 (2008): 941–1111. The Prakash quote is from Saikrishna Bangalore Prakash, “Separation and Overlap of War and Military Powers,” Texas Law Review 87, no. 2 (2008): 299–386. On the history of letters of marque and reprisal, see J. Gregory Sidak, “The Quasi War Cases—and Their Relevance to Whether ‘Letters of Marque and Reprisal’ Constrain Presidential War Powers,” Harvard Journal of Law and Public Policy 28 (Spring 2005): 465–500; C. Kevin Marshall, “Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars,” University of Chicago Law Review 64, no. 3 (1997): 953–82; and Nicholas Parrillo, “The De-Privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century,” Yale Journal of Law and Humanities 19, no. 1 (2007): 1–95. On the relationship between the letters of marque and reprisal clause and the president’s authority (or nonauthority) to instigate hostilities, the other “prominent writer” is Jules Lobel, “ ‘Little Wars’ and the Constitution,” University of Miami Law Review 50, no. 1 (1995): 61–80. The defenders of presidential powers on this score are John Yoo and C. Kevin Marshall, in the articles cited above. The quote from Jules Lobel on the issue of Congress’s power to make tactical decisions during wartime comes from his article “Conflicts between the Commander in Chief and Congress: Concurrent Power over the Conduct of War,” Ohio State Law Journal 69, no. 3 (2008): 391–467. The other article cited is Ingrid Brunk Wuerth’s “International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered,” Michigan Law Review 106, no. 1 (2007): 61–100. The quote about Johnny Depp is from Andrew Grotto of the Center for American Progress, quoted in the Politico article cited above; the quote about Swiss bank accounts also comes from this article and was uttered by Eli Lehrer of the Competitive Enterprise Institute (who also is the source of the Rambo quote earlier in the chapter). The military expert whose law journal article weighs in on the letters of marque issue is Major Theodore Richard, who makes the point in “Reconsidering the Letter of Marque: Utilizing Private Security Providers against Piracy,” Public Contract Law Journal 39, no. 3 (2010): 411–64.

  CHAPTER 8: THE TITLE OF NOBILITY CLAUSES

  The account of Norman Schwarzkopf’s knighthood comes from Karen de Witt, “No Sword and No Kneeling, Schwarzkopf Is Knighted,” New York Times, May 21, 1991; and Christopher Hitchens, “Knighting of General Norman Schwarzkopf,” Nation, June 17, 1991. The Supreme Court cases described in the section on equality are Brown v. Board of Education, 347 U.S. 483 (1954); Loving v. Virginia, 388 U.S. 1 (1967); Batson v. Kentucky, 476 U.S. 79 (1986); and United States v. Virginia, 518 U.S. 515 (1996). Much of the information about the history of the title of nobility clauses comes from Carlton F. W. Larson, “Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions,” Washington University Law Review 84, no. 6 (2006): 1375–1440; and Jol A. Silversmith, “The ‘Missing Thirteenth Amendment’: Constitutional Nonsense and Titles of Nobility,” Southern California Interdisciplinary Law Journal 8 (April 1999): 577. The controversy over the Society of the Cincinnati is recounted in Larson, “Titles of Nobility.” I got the facts about the knighted Norwegian penguin from Raphael G. Satter/Associated Press, “King Penguin Receives Norwegian Knighthood at Scottish Zoo,” ReadingEagle.com (Penn.), August 15, 2008, http://readingeagle.com/article.aspx?id=102427. The attorney general opinion about J. A. Udden is “Field Assistant on the Geological Survey—Acceptance of an Order from the King of Sweden,” Official Opinions of the Attorney General of the United States 28 (1911). The Foreign Gifts and Decorations Act can be found at 5 U.S.C. section 7342. The information about the titles of nobility amendment comes from Silversmith, The ‘Missing Thirteenth Amendment.’ ” For more on the Twenty-seventh Amendment, and other amendments that have never been ratified, see Richard L. Berke, “More Amendments Lurk in the Mists of History,” New York Times, May 24, 1992. The military rank system case is United States v. Thomason, 444 F.2d 1094 (D. Cal. 1971). The magistrate case is United States v. Riley, 1991 WL 192115 (D. Kan. 1991). The driver’s license case is State v. Larson, 419 N.W. 2d 897 (ND 1988). The “von” case is In re Jama, 272 N.Y.S.2d 677 (N.Y. City Civ. Ct. 1966). The article by Larson is “Titles of Nobility,” cited above. The article by Liptak is Adam Liptak, “A Hereditary Perk the Founding Fathers Failed to Anticipate,” New York Times, January 15, 2008. The article by Delgado
is Richard Delgado, “Inequality ‘From the Top’: Applying an Ancient Prohibition to an Emerging Problem of Distributive Justice,” UCLA Law Review 32, no. 1 (1984): 100–134.

  CHAPTER 9: THE BILL OF ATTAINDER CLAUSES

  On the Military Commissions Act, see Hamdan v. Gates, 565 F. Supp. 2d 130 (D.D.C. 2008), and the February 20, 2008, decision of military judge Peter E. Brownback III in United States v. Omar Ahmed Khadr. On AIG, see Carl Hulse and David Herszenhorn, “House Approves 90% Tax on Bonuses after Bailouts,” New York Times, March 19, 2009. On the ACORN controversy, see ACORN v. United States, 662 F. Supp. 2d 585 (E.D. N.Y. 2009). On the commitment of sex offenders and the ex post facto clauses, see Smith v. Doe, 538 U.S. 84 (2003). On the bill of attainder clause generally, see the discussion in Zechariah Chafee Jr., Three Human Rights in the Constitution of 1787 (Lawrence: University of Kansas Press, 1956), and an unsigned student article that turned out to have been written by John Hart Ely, “The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause,” Yale Law Journal 72, no. 2 (1962): 330–67. On the punishment for treason in England, see J. H. Baker, “Criminal Courts and Procedure at Common Law 1550–1800,” in Crime in England, 1550–1800, ed. J. S. Cockburn (London: Methuen, 1977), p. 42. On the bill of attainder supported by Thomas Jefferson, see Jack Lynch, “A Patriot, a Traitor, and a Bill of Attainder,” Colonial Williamsburg: The Journal of the Colonial Williamsburg Foundation 24, no. 1 (2002): 12–17, and William Romaine Tyree, “The Case of Josiah Phillips: How Virginia Came to Pass a Bill of Attainder,” Virginia Law Register 16, no. 9 (1910): 648–58. The Supreme Court cases discussed are as follows: Fletcher v. Peck, 10 U.S. 87 (1810); Cummings v. Missouri, 71 U.S. 277 (1867); Ex parte Garland, 71 U.S. 333 (1867); United States v. Lovett, 328 U.S. 303 (1946); United States v. Brown, 381 U.S. 437 (1965); Selective Service System v. Minnesota Public Interest Research Group, 468 U.S. 841 (1984); Nixon v. Administrator of General Services, 433 U.S. 425 (1977). Quotes from Madison and Hamilton cited in U.S. v. Brown. The case invalidating Amendment 2 is Romer v. Evans, 517 U.S. 620 (1996). The citation for Amar’s article is Michigan Law Review 95, no. 1 (1996): 203–35. Rick Hills’s response is Roderick M. Hills Jr., “Is Amendment 2 Really a Bill of Attainder? Some Questions about Professor Amar’s Analysis of Romer,” Michigan Law Review 95, no. 1 (1996): 236–54. The Nebraska case is Citizens for Equal Protection v. Bruning, 368 F. Supp. 2d 980 (D. Neb. 2005), reversed by 455 F.3d 859 (8th Cir. 2006). Grassley quote: Martin Kady II, “Grassley on AIG Execs: Quit or Suicide,” Politico, March 16, 2009, http://www.politico.com/news/stories/0309/20083.html. On whether the AIG tax would have been constitutional, see Richard A. Epstein, “Is the Bonus Tax Unconstitutional?” Wall Street Journal, March 26, 2009, and Jonathan Adler, “More on AIG Bonus Tax as Bill of Attainder,” Volokh Conspiracy, March 22, 2009, http://www.volokh.com/posts/1237734930.shtml. The ACORN case in the Second Circuit is ACORN v. United States, 618 F.3d 125 (2nd Cir. 2010). “Somebody has to” and other quotes in that paragraph: ACORN v. United States, 662 F. Supp. 2d 285, 296 (E.D. N.Y. 2009).

  CHAPTER 10: THE THIRD AMENDMENT

  Peggy Noonan’s piece is called “Expect the Unexpected: Why the Third Amendment May Once Again Be Needed,” December 7, 2000, available at www.peggynoonan.com/article.php?article=85. The privacy cases I discuss are Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Roe v. Wade, 410 U.S. 113 (1973); and Lawrence v. Texas, 539 U.S. 558 (2003). On substantive due process during the Lochner era, see Lochner v. New York, 198 U.S. 45 (1905), and West Coast Hotel Company v. Parrish, 300 U.S. 379 (1937). For a terrific account of FDR’s Court-packing plan, see Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (New York: Norton, 2010). On Justice McReynolds being a bigot, see Shesol’s book at p. 102, where Shesol describes how McReynolds refused to talk to the Court’s two Jewish justices at the time—Justices Brandeis and Cardozo. On Justice Ginsburg and Roe, see Linda Greenhouse, “Judge Ginsburg Still Voices Strong Doubts on Rationale Behind Roe v. Wade Ruling,” New York Times, November 29, 2005. On Ely and Roe, see John Hart Ely, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Yale Law Journal 82, no. 5 (1973): 920–49. On the history of the Third Amendment, the best account (and the one I discuss explicitly in the text) is probably Tom W. Bell, “The Third Amendment: Forgotten but Not Gone,” William & Mary Bill of Rights Journal 2, no. 1 (1993): 117–50. Other accounts include William S. Fields and David T. Hardy, “The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History,” American Journal of Legal History 35, no. 4 (1991): 393–431; and Seymour W. Wurfel, “Quartering of Troops: The Unlitigated Third Amendment,” Tennessee Law Review 21, no. 7 (1949): 723–37. The absurd cases I discuss are Custer County Action Association v. Garvey, 256 F.3d 1024 (10th Cir. 2001) (airspace); Jones v. Secretary of Defense, 346 F. Supp. 97 (D. Minn. 1972) (parade); Securities Investor Protection Corporation v. Executive Securities Corporation, 433 F. Supp. 470 (S.D. N.Y. 1977) (subpoena); United States v. Valenzuela, 95 F. Supp. 363 (S.D. Cal. 1951) (Housing and Rent Act). The case from New York involving the National Guard and the correction officer barracks is Engblom v. Carey, 677 F.2d 957 (2nd Cir. 1982). The case on remand in which the lower court held that the officers had “qualified immunity” from money damages was Engblom v. Carey, 572 F. Supp. 44 (S.D. N.Y. 1983). Morton Horwitz’s article is “Is the Third Amendment Obsolete?” Valparaiso University Law Review 26, no. 1 (1991): 209–14. The ACLU cartoon can be found at www.aclu.org/standup/comics/readbook.php?comicid=14. A picture of the “Repeal the Third Amendment” sign can be found here: www.flickr.com/photos/gemstone/5133666734/. The Onion article can be found at www.theonion.com/articles/third-amendment-rights-group-celebrates-another-su,2296/. The articles about creative arguments to revive the Third Amendment are Geoffrey M. Wyatt, “The Third Amendment in the Twenty-first Century: Military Recruiting on Private Campuses,” New England Law Review 40, no. 1 (Fall 2005): 113–64; Josh Dugan, “When Is a Search Not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping,” Georgetown Law Journal 97, no. 2 (2008): 555–87; and Andrew P. Morriss and Richard L. Stroup, “Quartering Species: The ‘Living Constitution,’ the Third Amendment, and the Endangered Species Act,” Environmental Law 30 (Fall 2000): 769–810. The quote that ends the chapter is from Mikulski v. Centerior Energy Corporation, 501 F.3d 555, 576 (6th Cir. 2007) (Daughtrey, J., dissenting).

  Index

  Please note that page numbers are not correct for the e-book edition.

  ACLU (American Civil Liberties Union), 142, 187

  ACORN (Association of Community Organizations for Reform Now), 158–59, 174–75

  Adams, John, 63, 144 Adams, John Quincy, 23, 28, 46

  adjournment clause, 50

  AIG bailout and bonuses, 158, 173–74

  Albright, Madeleine, 85

  Amar, Akhil, 169–70

  amendments: First, ix, xiv, xvi, 98, 107, 181; Second, xiv; Fourth, ix, 182, 189; Fifth, 180, 182; Ninth, 181, 182; Tenth, 101–2; Eleventh, 100–101, 116; Twelfth, 94; Thirteenth, 106, 141; Sixteenth, 104; Eighteenth, 99, 103–6; Nineteenth, 141; Twenty-first, xvii, 99, 104, 106–11; Twenty-fifth, 92–93; Twenty-seventh, 150–51. See also Third Amendment; Fourteenth Amendment

  American Civil Liberties Union (ACLU), 142, 187

  American Civil War, 130 American Revolutionary War, 128–29

  animals, ix, xi, xiv, 18–19, 25–26, 56, 87, 95, 131, 137, 146–47, 175, 188, 192

  appointments clause. See recess-appointments clause

  armadillos, use in studying leprosy, xiv

  Article I: adjournment clause, 50; commerce clause, 25–27, 107; congressional elections clause, 78; congressional protections under, 6; ex post facto clauses, 160–61; foreign affairs powers clause, 102, 121–24, 131–34; incompatibility clause, 2, 6–9, 11, 16–19, 193; ineligibility clause, 6, 11–15; pocket veto clause, 50; separation of powers under, 3–7, 9–11, 15
–19; states’ rights and limitations under, 102; text of, 1, 7; war powers clause, xvi, 121–27, 131; and the War Powers Resolution, 124; weights and measures clause, 21–23, 27–29, 37, 193. See also bill of attainder clauses; dormant commerce clause; letters of marque and reprisal clause; title of nobility clauses

  Article II: commander in chief clause, xvi, 42, 121, 122–27, 133–35; executive powers under, 3–5, 41–43; recommendations clause, xi; relevance of, 193. See also natural-born citizen clause; recess-appointments clause

  Article III, 78; judicial powers under, 3, 59–64; original jurisdiction clause, xii, 57, 62–64, 69, 71, 75, 175, 193. See also bill of attainder clauses; Supreme Court, U.S.

  Article IV, xi, 24, 75

  Article V, 96

  Article VI, 79, 102

  Articles of Confederation, 99–100, 102, 134, 143

  Asian tiger mosquito, 95

  Association of Community Organizations for Reform Now (ACORN), 158–59, 174–75

  “Attainder and Amendment 2” (Amar), 170

  Aykroyd, Dan, 23, 35

  Bataillon, Joseph, 171

  bat-eared foxes, ix, xvi

  Batson v. Kentucky, 141

  Bell, Tom, 184–85, 186

  Bellanca, N.Y. State Liquor Authority v., 108–9

  bill of attainder clauses: and ACORN, 158–59, 174–75; and corporate bonus taxation, xiii, 158, 173–74; defined, 159; history of, 162–65; and the Military Commissions Act, 157–58, 172–73; relevance of, 193; and sexual orientation, 2, 168–69, 170–72; text, 157