Opinion

The Great Debate

A 14th Amendment for all centuries

By Garrett Epps
October 9, 2013

During the 1980s, a colorful Washington figure used to stand in Lafayette Square near the White House holding a sign: “Arrest Me. I Question the Validity of the Public Debt. Repeal Section 4, Fourteenth Amendment to the U.S. Constitution.” That section reads: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” As far as I know, the whimsical “protester” was never arrested; he wasn’t breaking any law. Congressional Republicans, if they force the United States into default on its debt, will be.

Even most journalists and policy wonks hadn’t heard of Section 4 until recently. But with a default on “the public debt” increasingly possible, many now find the subject gripping. What if the House Republican majority decides that they are just too angry to authorize repayment of the debt? They’d be violating the Constitution — but what would happen to the country, and to them?

During the debt-ceiling crisis of 2011, a number of scholars, including me, suggested that President Obama could end the standoff by proclaiming that Section 4 required him, as part of his duty to “take care that the laws be faithfully executed,” to set aside the debt ceiling and borrow enough money to fund payments on the debt. Obama later said his lawyers told him that was “not a winning argument.” This time around, White House Press Secretary Jay Carney has already said that “this administration does not believe that the 14th Amendment gives the power to the president to ignore the debt ceiling.”

Nevertheless, it’s useful to understand the history that brought Section 4 into being. Its story has parallels to the political situation in the United States today, almost a century and a half after the 14th Amendment was adopted.

In April 1865, Abraham Lincoln was killed by a southern assassin. Eight months later, the 13th Amendment was ratified and emancipation became the law of the land. But even amid the ashes of defeat and the triumph of Abolition, the South proclaimed itself not beaten, but triumphant. One influential southern newspaper explained in January 1866 that if the southern states’ population were counted proportionately in Washington, “the political power of the country will pass into the hands of the South, aided, as it will be, by Northern alliances.”

It was all too believable. Freedom for the slaves made their former masters stronger, not weaker, because southern states planned to accept full congressional representation for the freed blacks (as slaves, they had counted only as 3/5 of free people) — while permitting only whites to vote. Freed slaves now would count one for one, giving the South as many as 28 new House seats — and 28 more electoral votes — all to be determined by an all-white electorate.

After the war, the South wanted their state governments to repay the money they had borrowed to fund the Confederate war effort — and they wanted federal help to do it. If the Union would help not help pay back those debts, then they saw no reason why the U.S. national debt should be repaid either. After all, virtually all of it had been borrowed to fund the Union war effort. “If we’ve got to repudiate [the confederate debt], we may as well help the Democrats repudiate the debt on the other side too,” a delegate to Georgia’s new constitutional convention told a reporter, referring to the national debt. “What’s fair for one is fair for the other.” A South Carolina white put it more colorfully: “What, ruin us, and then make us help pay the cost of our own whipping? I reckon not!”

Northern politicians took the threat of resurgent southern power so seriously that they drafted the 14th Amendment, the longest in the Constitution. The former seceded states were excluded from Congress, and only allowed back in when their states ratified the amendment. In its five sections, it sought to systematically dismantle what northerners called “the slave power.” The Bill of Rights would apply in the South. Southern states would not get representation for black residents if the ballot remained all white. Former Confederate leaders could not serve in Congress. There would be no repayment for slaves. There would be no repayment of the Confederate debt. And the U.S. debt, amassed to pay for the war, was never to be repudiated — it was not even to be “questioned.”

Long after Reconstruction ended, the Supreme Court held that Section 4 remains an absolute command. “While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation,” Chief Justice Charles Evans Hughes wrote for the Court in a 1935 case called Perry v. United States. “Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.”

A large number of today’s House Republicans seem to be channeling the ghosts of those long-ago secessionists. Beaten in an election, they still expect to rule, and they seem to recognize only the laws of which they approve. But last January, every member of the House swore to “support and defend” the Constitution, and “bear true faith and allegiance to the same.” They took that obligation “freely, without any mental reservation or purpose of evasion.”

There is no “14th Amendment exception” to that oath.

A century and a half ago, nearly a million Americans died to establish the United States as one nation. And when the battle ended, the new nation publicly pledged that it had undergone Lincoln’s “new birth of freedom” — that it would give due process and equality to all within its borders.

And that it would always pay its debts. On time. In full. Whether any willful group of renegades liked it or not.

PHOTO: U.S. Treasury Secretary Timothy Geithner holds up a copy of the U.S. Constitution before reading a passage from the 14th Amendment during a breakfast interview at the Newseum in Washington, May 25, 2011.  REUTERS/Jonathan Ernst

Comments
21 comments so far | RSS Comments RSS

regardless of what you think about the present hoopla in DC, your arguement above – that the prez should use the 14th amendment to disregard the debt ceiling – is lame, lame, lame!

first, the plain language of the amendment says the [existing] (!!!) debt of the US shall not be questioned. it’s a massive leap from there to then assert that this somehow applies to future debt, which is essentially what you’re advocating.

second, as you very well know, the constitution delagates exclusively to congress the power to borrow money on the credit of the US, not to the prez.

then there’s all the precidents: before the debt ceiling law existed, all individual bond issues were directly authorized by congress, etc, etc, etc. (there’s lots of precidents against your argument.)

the prez’s advisors are correct, there’s no firm ground to stand on here. and if the prez tries this he could well be into a constitutional crisis and monumental slapdown from the supreme court. your idea is a cute debate topic for moot court, but keep it in the ivory tower please.

Posted by boredinvestor | Report as abusive
 

Epps is still out there trying sell this, eh? You’d think the fact that both the White House and Treas. rejected this idea as both incorrect and ridiculous would shake him of it.

Guess not.

Posted by Helvidius76 | Report as abusive
 

Given the 14th amendment section 4 says government debts will be paid, the whole shut down will turn out to be a way for Obama to cut program he does not care for but are popular with Democrats and blame it on the Republicans. The Republicans can then tell their tea party we got the cuts for you.

Nothing like have to honest strait talking political parties. They would not think of making everyone change their investment plans because of a Washington play. Not to mention collecting contributions under false pretenses. I sent the Democrats $250 before I my attention was drawn to section 4 of the 14th amendment.

Posted by Samrch | Report as abusive
 

The Debt Limit Congress adopted is legislative action more recent than the Fourteenth Amendment. As such, that later legislation specifically clarifies Congressional spending authority and limits it.

As a result, BY DEFINITION, any amount Congress spends in excess of the CURRENTLY AUTHORIZED Debt Limit is NOT “VALID public debt” of the United States.

EXCESS SPENDING by our government is the violation that must stop. The idea that Congress can ignore AVAILABLE REVENUE as a constraint was what brought about the Debt Limit, which BOTH PARTIES have substantially and routinely ignored.

Can you imagine the savings if citizens could debate to consensus as to America’s NEEDS, kick the can containing our WANTS down the road, ascertain available revenue by projection, and tell Congress: Here’s what has to be funded and here’s how much you have. Figure it out and make it work or we’ll replace you with leaders that can and will.

Stop the madness! America is the richest nation on the earth and from the news every American citizen lives paycheck to paycheck with no savings, no “rainy day fund”. Why they might have to stop eating out, buy some groceries and learn to cook them. I even remember when coffee was brewed at home, not Starbucks or with expensive little sealed cups.

Our national mindset is like the gal that goes storming into the bank and up to the manager’s desk, upon which she slams her checkbook and an overdraft notice and yells: “SEE? I CAN’T BE OVERDRAWN. I STILL HAVE CHECKS LEFT!”

Posted by OneOfTheSheep | Report as abusive
 

OneoftheSheep…that’s some piece of rationalization you’ve got going on there. Laws passed by Congress do not alter or supercede the Constitution. There is a process to alter the Constitution. And Congress can’t do that on it’s own. Congress has already authorized the money that continues to be spent. The value of the Debt Ceiling is that it requires Congress to revisit the expenditures established by law. The orderly way to proceed is to come to a spending cut agreement to either lower or maintain the debt. If a solution can’t be reached, then Congress BY CONSTITUTIONAL LAW (section 4 of the 14th Amendment) is required to raise the Debt Ceiling and continue to pay for the bills Congress has already authorized. It really is just that simple.

Posted by xyz2055 | Report as abusive
 

Samrch..Presidents do not have the authority to arbitrary cut programs (or spending bills) that are currently law. Only Congress can authorize eliminating or altering existing laws. Appropriation bills ARE sent to the President for either veto or approval. But ultimately Congress has all the power. They can supercede a Presidential veto, where a President has no recourse on such action. Where do you come up with this stuff?

Posted by xyz2055 | Report as abusive
 

It is hard to explain things to people, or for them to understand, who lack understanding in basic English. I am not going to bother listing the dictionary explanation for “valid”, but simply put, the debts incurred by the US government, incurred legally to be precise, cannot be questioned whether or not they are “valid” debts .. that’s all. Whether or not they are paid is another matter outside of this section (4). The current discussions are generated by groups of people who think the constitution needs interpretation; which is fundamentally flawed approach as one only needs a dictionary and common sense. Should one want to challenge the “intent” of any passage in the constitution, well, there are a stack of federalist papers discussing those very points during the creation of the constitution, papers that are routinely ignored by those whom claim the authority to make such determinations, that would satisfy any such interest. Such a reference would only limit the scope of such questioning, and reinforce the fundamental language committed to paper…which returns to the original point, one cannot converse logically with another who chooses not to abide by the language or other reference tool, on any point or topic.

Posted by ANZUS | Report as abusive
 

@ANZUS: “… as one only needs a dictionary and common sense.” – I’d agree, but there’s a problem, for politics calls forth passions, and where are passions common sense isn’t common.

Posted by UauS | Report as abusive
 

@Uaus: yes, a most thoughtful response. I think the creators of the constitution were most concerned on that point and insured that the processes to pass legislation were fundamentally inefficient, to ensure dispassionate, calm and thoughtful discussion. The public’s frustration, aside from the media’s representation of it, I feel is reduced in that, they see that the politicians have reached an impasse orchestrated by the constitutional framework, that no longer allows hyperbole to go unnoticed and the ensuing embarrassment of inaction, forces them to do what what is necessary, that being simple discussions and negotiations. I am personally happy to see how effective the constitution is at not letting either side force a resolution, which invariably humans have a weaken towards as you eloquently point out.

Posted by ANZUS | Report as abusive
 

Great article! I wish everyone could read this. I wish the President would evoke the 14th amendment. The tea partiers are terrorists within. They hate the United States, and will no more concede that they lost the Civil War than the fact that Obama won the election, twice.

Posted by dejahthoris | Report as abusive
 

The claim made here is most certainly not correct and that is why the POTUS does not think it is valid. It does not say that if we were to pass an 8 trillion dollar budget that no matter what we need to raise the debt ceiling to pay for it. There is another way to avoid hitting the debt ceiling, spend less. Very simple. The USGOV already collects 3 trillion annually, only spending what you take in eliminates the need for the debt ceiling to be raised. This is a game for people look for ways to artificially create an argument for their side even if it is based on lies. I don’t believe that is the goal or eventual outcome, but trying to rein in the deficit is. We haven’t really done that yet, evidenced by our 972 billion deficit this year after 5 years of recovery.

Posted by Ruralfarming | Report as abusive
 

i think its hilarious how you can tell…by each post…who supports the republicans/tea party and who supports the democrats. i also think its hilarious how the republicans CONSTANTLY, especially fox news, cite the constitution and some amendment…tea part does this all the time explaining how they want to return us to 1800′s era politics *sigh*…when the democrats finally use their own weapon against the republicans they come out in droves to explain how this particular amendment really isn’t viable in today’s culture. …tell that to all the crazy gun nuts out there who talk about their 2nd amendment right to bear arms … which was originally created for what? protection after the revolutionary war i think?? i dunno who cares, not like my post…like all the other ones…will change any minds =)

Posted by fredderf81 | Report as abusive
 

After the deficit spike caused by the Bush Great Recession, it has been plunging since last year (right up to the g’mint shutdown). Repubs ignore that. Inconvenient truth. That they would follow up their Sequestration abomination with a shutdown then threaten the good faith and credit of their own country closes the case on their real patriotism. I say pull out that 14th Amendment and let her rip.

Posted by juniorsenior | Report as abusive
 

I’ve noticed a common denominator between most liberal interpretations of the Constitution: their based on a completely different Constitution than the one we actually have.

Posted by BS_detector | Report as abusive
 

@BS_detector: keep up a good work!

Posted by UauS | Report as abusive
 

The government has plenty of money to service the public debt, even after the 17th of October. I would say that this Amendment indicates that the debt should be paid first, and then other bills paid until the money runs out. The government is taking trillions a year!

In my opinion, the amendment certainly has no interpretation that means the debt could be increased without Congressional authorization.

Posted by stevedebi | Report as abusive
 

There are two processes at work here–incurring debt and paying debt. There can be extensive debate about debt incurred, but once it is there, it must be paid, or we have a deadbeat government. What could be more simple?

Posted by joecalarco | Report as abusive
 

Congress as a whole be sued for not for not enforcing sections 4 and 5 of the fourteenth amendment? Individual members and their staff enjoy immunity for what they say but can a Judge put the whole bunch in jail for violating a court order to enforce the 14th?

Posted by Samrch | Report as abusive
 

“China’s official news agency has called for the creation of a “de-Americanised world”, saying the destinies of people should not be left in the hands of a hypocritical nation with a dysfunctional government.”

Our political parties are seriously hurting the country now. Both of them. We need a referendum vote on Term limits for congress and SCOUS and campaign finance reform. Nothing more or it will be turned into a never ending argument and well get nothing. Just those two things and all things can be achieved after just one or two election cycles. DEMAND IT!

Posted by tmc | Report as abusive
 

The fourteenth amendment is the perfect solution to this quandry. It’s the law that our duly made debts receive the first priority treatment. So be it. The service on our debt is around $18 bil. a month and the gov’t. takes in over $200bil. a month,more than ten times the amount needed. There is plenty of cash available to meet our obligations. If the Emperor refuses to take that route,then he has willfully broken the law and should be impeached. The ONLY reason the dumbocrats want the debt ceiling raised is to provide them with more money to blow buying votes.

Posted by Anonymous | Report as abusive
 

Like the counties in CO, desiring secession, watch what happens as the spending and socialization of the US continues. You will see more and more dissent and most likely, eventually, outright rebellion. I think the founders knew that this would be a possibility. They knew that the power residing in cities vs. that of farmers and rural towns needed balance – so, the senate and the electoral college. That’s why they went with a constitutional republic and not mob rule. Fortunately, the believers in freedom will be able to defend themselves, since they take the 2nd amendment seriously, and the socialists will have to count on hired help to defend themselves. History repeats itself? It’s an interesting time to be alive.

Posted by amicidavinci | Report as abusive
 

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