The Constitution's Latest Blaze of Notoriety: Bad for the Republic
The Constitution becomes a hot news topic only when things in the country are very, very bad.
The past few days have seen the question of Section Four of the Fourteenth Amendment assume almost the salience of Lindsay Lohan's Twitter feed. And because I have written three posts on that subject, I've suddenly been rushed by the media. Since yesterday I have appeared live on MSNBC and by Skype on CNN. I've had phone calls from other reporters, as well. In addition, I've been dismissed as one of a group of "left-leaning legal scholars" by Ezra Klein of the Washington Post (who, interestingly enough, seems to admit that the Section Four argument may be valid but that "now is not the time" to bring it into play) and the Section Four argument has been characterized as "at least a little specious" by David Weigel of Slate.
I wish I could take some satisfaction in being the latest victim of what Evelyn Waugh once described as the media's habit of "seizing upon some gentle and self-effacing citizen and transfiguring him with a blaze of notoriety." (I know perfectly well that my brush with fame will soon end without ever coming to the attention of most TV watchers.)
But the fact is that we are having this discussion only because the Republic may be in serious trouble. And the Section Four issue, which I was one of the first to advance, is only on the table because it begins to look as if the alternative is the unthinkable: U.S. default. On Wednesday, President Obama told a press conference, "Nobody wants to put the creditworthiness of the United States in jeopardy. Nobody wants to see the United States default. So we've got to seize this moment, and we have to seize it soon." (Obama wisely refused to respond to a question about Section Four.)
I hope he is right that nobody wants it; I have my doubts. I think it is very possible that future historians may mark the summer of 2011 as the moment in which the decline of the United States became irreversible. And if that happens, it will be because--as in every declining nation--elements of the ruling elite decided that they would prefer calamity for the nation as a whole to the loss of any shred of their share of the nation's wealth.
I first put forward the Section Four argument as a thought experiment. Who in April really thought that Republicans would be willing to crash the nation's credit rather than discuss any revenue increase whatsoever?
But it is not, as Weigel calls it, a gimmick; even constitutional lawyers who think I am wrong don't call it that. The command in Section Four is strongly worded. Ask yourself how we'd be conducting this discussion if the provision ("The validity of the public debt of the United States, authorized by law, ... shall not be questioned ....") appeared in the body of the Constitution instead of in an obscure section of an Amendment. That really shouldn't make any difference--Article V states that amendments once adopted "shall be valid to all intents and purposes, as part of this Constitution." The Constitution says that default is forbidden; where it says it isn't really relevant.
In Perry v. United States, the one case that has even considered the meaning of Section Four, the Supreme Court interpreted this prohibition to be close to absolute:
... the government seems to deduce the proposition that when, with adequate authority, the government borrows money and pledges the credit of the United States, it is free to ignore that pledge and alter the terms of its obligations in case a later Congress finds their fulfillment inconvenient. The government's contention thus raises a question of far greater importance than the particular claim of the plaintiff. On that reasoning, if the terms of the government's bond as to the standard of payment can be repudiated, it inevitably follows that the obligation as to the amount to be paid may also be repudiated. The contention necessarily imports that the Congress can disregard the obligations of the government at its discretion, and that, when the government borrows money, the credit of the United States is an illusory pledge.
Perry (a case not even a con-law nerd can truly love) concerned a borrower who had bought a $10,000 U.S. bond with a "gold clause," and who claimed that, after the United States went off the gold standard in 1933, he was still entitled to be repaid the amount of money that the equivalent amount of gold represented in 1934--in this case, about $16,000. The Court lectured the government that it had no power to repudiate or even alter the payment of a loan. It made clear that Section Four applies not simply to the Civil War debt but to all of the American public debt. But it then held that, because gold dollars were now outlawed, Perry was entitled only to the face value of his bond, $10,000 in U.S. currency valid at the time of redemption. Confused? Join the club! Shortly afterwards, the great scholar Henry M. Hart wrote, "Few more baffling pronouncements, it is fair to say, have ever issued from the United States Supreme Court." But the language is there.
As for the intent of the Framers, it's clear to me that they were concerned about future partisanship. The United States had no debt to speak of since 1835; no one knew what the massive debt amassed during the Civil War would portend for the country or its politics. Southern Democrats were angry that their tax dollars might go to pay for the Union war effort, and spoke openly of securing repudiation when, as they expected, they took over Congress again. But please don't take my word for it: the indefatigable Jack Balkin of Yale Law School Thursday posted a comment on his brilliant blog, Balkinization, reviewing what was said by the Framers of Section Four during its adoption by the 39th Congress. He concludes:
[T]he goal was to remove threats of default on federal debts from partisan struggle. Reconstruction Republicans feared that Democrats, once admitted to Congress would use their majorities to default on obligations they did disliked politically. More generally, as Wade explained, "every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress."
Like most inquiries into original understanding, this one does not resolve many of the most interesting questions. What it does suggest is an important structural principle. The threat of defaulting on government obligations is a powerful weapon, especially in a complex, interconnected world economy. Devoted partisans can use it to disrupt government, to roil ordinary politics, to undermine policies they do not like, even to seek political revenge. Section Four was placed in the Constitution to remove this weapon from ordinary politics.
In 2011, as in 1866, the most tawdry and ordinary politics may be on the verge of wrecking the nation. I honestly wish that Section Four were still an obscure provision, discussed only by academics at scholastic pigtail pulls. God knows I don't want President Obama to use it. The politics and the economics of doing that are unknowable.