Our National Debt 'Shall Not Be Questioned,' the Constitution Says

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In a time that increasingly resembles the Great Depression, Congress shouldn't play politics with raising our debt ceiling

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My last post, entitled "The Speech Obama Could Give," was an imaginary presidential address in which Obama announces that if Congress refuses to raise the statutory debt ceiling, he will not observe it, at least to the extent that doing so would require him to default on interest payments on the national debt, suspend payments to Social Security recipients, or withhold paychecks of U.S. troops during Congressionally authorized military action.

The post has drawn some reaction, which I think is a sign of the underlying anxiety people are feeling as Republicans juggle the dynamite of potential default. Emil Henry, a former Bush administration treasury official, calls the ritual of debt-limitation debates a "Kabuki dance." As part of this ritual, my speech was intended to suggest that there are both ramifications and responses to potential default that we may not have foreseen.

These debts have to be paid, the argument would be, in full, on time, without question. If Congress won't pay them, then the executive must.

As for the consequences, I am a constitutional lawyer, not an economist.  But as a matter of common sense, a delay in raising the debt limit may have malign results even if the United States does not technically default on bond-interest payments. I have been reading David Kennedy's Freedom from Fear: The American People in Depression and War, 1929-1945, and I am not sleeping well. The current year seems uncomfortably like 1931, when some brave forecasters still nourished hope that recovery was underway.  Shocks to confidence in the nation and the world kept coming, however, until by early 1933 severe recession had become unparalleled catastrophe.

Since 2008, we've heard several times that recovery has begun; but events around the world--European debt crises, Middle East revolutions, the earthquake, tsunami and meltdown in Japan, and now political infighting in Washington--keep intervening to strangle it.  

So it seems like a bad time for Congressional Republicans to point a gun at the national credit rating and scream, "One step and I'll shoot!"  If the debt limit increase is snarled, confidence in our bonds may crater even if Treasury is able to find a temporary way to maintain the interest payments.  If the world no longer feels solid about U.S. debt, the consequences could be as bad as 1932-33.

That's where the good old text of the Constitution comes in--the actual text, not the mythical snippets that many Americans misremember from eighth-grade civics, and not the truncated redaction that too many lawyers, alas, learn in their first-year Con Law class.

Section Four of the Fourteenth Amendment states, at its outset, that "[t]he 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." This section was inserted into the Amendment because of a very real concern that Southern political leaders, and their Northern allies, would gain the upper hand in Congress in the 1866 or 1868 elections and vote to repudiate the national debt. 

The Lincoln administration had borrowed freely to finance the war machine. As Reconstruction dawned, white Southerners complained bitterly that they would now be taxed to repay the funds that had been borrowed to defeat their cause. "What, ruin us, and then make us help pay the cost of our own whipping?" one asked a Northern journalist in 1865. "I reckon not."  

Southerners were used to having their way in Congress--they had dominated the institution from 1787 until secession in 1861--and many believed that when their representatives arrived in House and Senate, they would be able to tear up the nation's IOUs.  

Section Four was the response; its language is extraordinary. First, it does not simply say that the national debt must be paid; it says that its "validity ... shall not be questioned." Only one other section of the Constitution--the Thirteenth Amendment's proclamation that "[n]either slavery nor involuntary servitude ... shall exist within the United States, or any place subject to their jurisdiction"--is as unqualified and sweeping.

Second, it suggests a broad definition of the national debt: "...including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion."

From this language, it's not hard to argue that the Constitution places both payments on the debt and payments owed to groups like Social Security recipients--pensioners, that is--above the vagaries of Congressional politics. These debts have to be paid, the argument would be, in full, on time, without question.  If Congress won't pay them, then the executive must.

On the other hand, the language could be seen as simply forbidding outright repudiation, not  temporary default. Default on U.S. bonds would, in this analysis, not dispute the "validity" of the debt; it would simply delay repayment. But remember the strict language. Suppose you lend $10,000 to your cousin. When the debt comes due, he says, "Listen, I'm good for the money, but I'm a little short right now. Trust me, I will get it to you sooner or later." That's not repudiation. But on the other hand, you might think the validity was now at least being "questioned."  

For the Obama administration to adopt the broad reading of Section Four would be bold (and I hasten to say I don't expect them to do it); but it would hardly be unusual in the recent discourse of presidential power--especially the Republican party's theory of the presidency.

(Coming next: The imaginary speech and the imperial presidency)

Image credit: flickr/Tracy O

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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