The Obama Legacy at Occupy Oakland
The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions

Occupy Wall Street, the Guarantee Clause, and Separation of Powers

Jay Wexler is the author of The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions. Wexler is a professor at the Boston University School of Law; prior to teaching he worked as a clerk to Justice Ruth Bader Ginsburg at the U.S. Supreme Court, and then as a lawyer in the Office of Legal Council at the Department of Justice. He has published nearly twenty academic articles, essays, and reviews, as well as nearly three dozen short stories and humor pieces, in places like The Boston GlobeSpyMental Floss and McSweeney's. This post originally appeared on his blog.

WEXLER-OddClausesAs I discussed a while back on my Odd Clauses Watch blog, one of the reasons I wrote The Odd Clauses the way I did was to sort of take back the Constitution-- the whole Constitution, not just bits and pieces like the 4th Amendment-- for us liberals. For some reason, it seems that these days conservatives have claimed (and have gotten away with claiming) that the Constitution is mainly theirs. They are, after all, the ones who insisted on reading the whole thing on the House floor after the last election, and if you look around and see who is writing about the various odd clauses of the Constitution, it turns out that they are mostly conservatives. Maybe it has something to do with how conservatives like to read dusty texts in the basements of old libraries, or something, I don’t know. The Tea Party movement certainly has invoked the Constitution to support is radical views about limited government and taxation. But of course the Constitution belongs to all of us.

About a week ago, Yale law bigwig and constitutional provocateur Jack Balkin wrote a post on his Balkinization blog arguing that the Occupy Wall Street movement, while not openly claiming any link to constitutional values, nonetheless does embody the key constitutional notion that our government is supposed to be responsive to all citizens, not just one small tiny itsy bitsy rich faction (and I use that word purposefully) of the population. He argues that in fact, this notion is encapsulated in the Guarantee Clause, which provides that “The United States shall guarantee to every State in this Union, a Republican Form of Government.” I mention this clause briefly in the introduction to my book (and even make the same joke he does about how the clause has nothing to do with the Republican party), but it’s not one of my main clauses. Other prominent blogs have reported on Balkin’s suggestion. William and Mary’s Timothy Zick has issued something of a retort to Balkin. Back at Balkinization, Jason Mazzone has raised questions about the meaning of the Guarantee Clause.

I am sympathetic with Balkin’s suggestion. I do think there’s something constitutional going on with the OWS movement. I would add that indeed OWS is fighting back against what has become the newest manifestation of the framers’ biggest fear–-a concentration of power in a small faction of American citizens that threatens the goodwill of the citizenry as a whole. The framers were terrified of concentrated power. They fled a political system that featured just such a concentration, and they insisted when writing the Constitution on splitting up powers in all sorts of ways-- state and federal, legislative and executive and judicial, House and Senate, church and state, etc.-- to protect against the emergence of such concentrated power in the new Republic. To the extent that OWS is claiming the mantle of the 99% against the 1%, it is claiming that our constitutional system, shaped by questionable decisions like Citizens United, has failed to protect us against the concentrated power of an economic elite that has furthered its agenda at the expense of everyone else.

So, yes, go and claim the mantle of the Constitution, OWS. The Guarantee Clause, Separation of Powers, the First Amendment, and all the rest of it.