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.”