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BREAKINGVIEWS-U.S. Constitution's hidden parts are oddly useful

23 Dec 2011 14:53

Source: reuters // Reuters

(Repeats Dec. 20 item without change to text) (The author is a Reuters Breakingviews columnist. The opinions expressed are his own.)

By Reynolds Holding

NEW YORK, Dec 20 (Reuters Breakingviews) - The U.S. Constitution's hidden provisions are oddly useful. Clauses like the ban on bills of attainder may not ring a bell, but a new book argues that they shed needed light on fuzzy concepts like free speech and due process. Wall Street occupiers should take note. In protests against inequality under the law, there are worse slogans than: "Down with Titles of Nobility."

On a potentially dry subject, "The Odd Clauses" is remarkably light and funny, if occasionally strained. Author Jay Wexler, a law professor at Boston University, compares the Constitution to a zoo. Its best known provisions, like the First Amendment's free speech guarantee, are lions and tigers, he says, while its obscurities resemble shrews and wombats. The analogies are a little awkward, but Wexler deserves credit for making the Constitution a bit less intimidating.

By "odd clauses," Wexler says he means narrow and specific provisions rather than broad and vague ones like the 14th Amendment's due process guarantee, which aims to ensure fairness by requiring appropriate steps before a person can be deprived of life, liberty or property. He writes about 10 of them, using each to say something bigger and sometimes fascinating about the founding document.

The bills of attainder clause, for instance, prohibits laws that single out people for punishment without a court trial. Common in England and colonial America, the laws severely infringed liberty and gave legislators too much power, according to the Constitution's authors. The clause is one of the document's most pointed guarantees of liberty and separation of powers, and one of the few outside the Bill of Rights.

As Wexler points out, it's used even today. When insurer American International Group <AIG.N> gave traders almost $200 million of bonuses in 2009 after getting a huge government bailout, for example, the U.S. House passed a 90 percent tax on such payments. The legislation went nowhere after critics warned it could be a bill of attainder.

Also surprisingly relevant is the letters of marque and reprisal clause, which authorizes Congress to allow private ships to attack pirates. Wexler shows how the clause strengthens arguments that Congress rather than the president should control the nation's war powers. It also offers a possible way to deter pirates off the coast of Somalia.

By contrast, the Third Amendment says people can't be forced to let soldiers stay in their homes. It clearly protects privacy, but unwelcome soldiers aren't much of a problem today. That they aren't, Wexler says, may actually show how well the principles behind the clause are working. That seems a bit of a stretch.

He's right, though, that a seemingly moribund provision can suddenly come to life. At the height of last summer's impasse over the U.S. debt ceiling, the 14th Amendment's relatively obscure bar to reneging on federal debts became one of D.C.'s hottest topics. Some Democrats and legal scholars urged President Barack Obama to cite the clause in declaring the debt ceiling unconstitutional.

Wexler's broader point is that all parts of the Constitution matter. Even the title of nobility clause, as ridiculously archaic as it may seem, supports a core legal principle.

Before the 14th Amendment was ratified in 1868, the ban on creating kings and princes was about the only clause requiring the government to treat people equally. As Wexler explains, Alexander Hamilton, the first U.S. Treasury secretary, considered its expression of equality a "cornerstone" of the new democracy. That seems a concept worth remembering for the 1 percent.

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-- "The Odd Clauses," by Jay Wexler, was published on Nov. 1. He is a professor at Boston University School of Law.

-- For previous columns by the author, Reuters customers can click on [HOLDING/]

(Editing by Martin Langfield and Richard Beales)