One of the challenges of writing about the Constitution’s odd clauses was trying to explain why these clauses, which rarely if ever make it into judicial opinions, are actually quite important. There are a lot of reasons why they are, and one of them has to do with their potential for becoming more visible and relevant in the future. After all, the Second Amendment was practically irrelevant until the Supreme Court resuscitated it just a few years ago. If this could happen to the Second Amendment, then why can’t it happen to the Seventh Amendment, or even the Third?
Fiction writers, with their vivid imaginations, might be expected to occasionally give us some insight into the potential for some of our Constitution’s potential potentialities. So it’s probably not surprising that America’s greatest modern writer (now sadly deceased), David Foster Wallace, gives us some weights and measures food for thought in his magnum opus Infinite Jest. For those who haven’t read it, the book’s action takes place in the near future, when the countries of North America have been consolidated into one state called O.N.A.N., or the Organization of North American States. Years are not designated by a number (“1989,” “2011”) but are rather sponsored by corporations, so that they are called “Year of the Whopper,” “Year of the Tucks Medicated Pad,” “Year of the Perdue Wonderchicken,” “Year of the Depend Adult Undergarment,” and the like.
It’s reported on page 223 (of my edition, anyway) that the most recent year will be called the “Year of Glad,” but this information comes, as so much informati0n in the book comes, with an endnote. And in the endnote (note 78, on page 999 of my edition) we learn that this designation is:
(Subject to O.N.A.N. Dept. of Weights and Measures Oversight Committee ratification of final contract between G.F.R. Co., Zanesville, OH, and the Bureau of Endorsement Revenue, United States Office of Unspecified Services, Vienna VA, 15 December Y.D.A.U.)
In other words, the O.N.A.N. has established an agency to oversee the purchasing of year-naming-rights by private corporations. And on what basis might this agency exist, constitutionally? Well, we don’t know for sure, but perhaps it’s something like the Weights and Measures Clause, subject of the second chapter of The Odd Clauses.