by Jeff Polet
The 14th Amendment is back in the news, which typically means something is afoot somewhere in this country, but is also an opportunity to review one of the most important provisions in our Constitution. After the Civil War, three amendments (13, 14, and 15) were added to the Constitution. The first got its play in Spielberg’s Lincoln; while one cannot overstate its significance the interpretation of it is pretty straightforward (although I will say that teaching it in a prison to prisoners is an interesting and compelling experience). The most recent controversy came to light during recent debates concerning the “debt ceiling.”
The specific provision being debated results from the language of sections 4 and 5 in the 14th Amendment. The language is as follows: “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,” while section 5 insists that Congress has the power to enforce the provisions of the amendment.
Here we run into one of the oddities of our Constitutional system with its separation of power. Congress is responsible for raising and distributing funds, but the actual spending is done by the executive branch, under the authority of a President who has no legislative power. Each of the agencies submit their budget requests for the coming year to the executive Office of Management and Budget, who then turns over the recommendations to Congress. Keeping in mind that Congress has sole authority over the power of the purse, all budgetary power ultimately rests with Congress. Article I, sec. 8 of the Constitution makes it clear that the President is prohibited from borrowing money. Our presidents, however, have, over time, delegated more and more budgetary authority to themselves, often in complicated ways.
I mention this because the debate over the debt ceiling is ultimately a debate over how the federal government spends its money. There is no constitutional requirement either for a balanced budget or for a limit on spending, but Congress imposed limits on itself through the mechanism of the debt ceiling. It is a debatable policy that, depending on your point of view, may or may not have serious economic consequences. Those who oppose it will, of course, suggest we are on the verge of collapse and time it gets invoked.
The stakes and arguments over what the 14th amendment allows made their way recently into a couple of essays in The New York Times, both essays submitted by eminent constitutional scholars, highlighting once again the ways in which highly-regarded experts can disagree. The first author, Harvard’s Laurence Tribe, helpfully highlighted the issue by arguing that the debt limit was in fact an unconstitutional piece of legislation:
Section 4 of the 14th Amendment says the “validity” of the public debt “shall not be questioned” — ever. Proponents of the unconstitutionality argument say that when Congress enacted the debt limit, effectively forcing the United States to stop borrowing to honor its debts when that limit was reached, it built a violation of that constitutional command into our fiscal structure, and that as a result, that limit and all that followed are invalid.
Tribe had earlier in his career been a critic of this argument, effectively arguing that Congress, according to section, could legislate freely on spending matters. But the most recent debate, yet another iteration of the debt ceiling debates we have every few years, moved his thinking into different territory.
The right question is whether Congress — after passing the spending bills that created these debts in the first place — can invoke an arbitrary dollar limit to force the president and his administration to do its bidding.
Tribe answers aggressively in the negative. He argues that the President has a Constitutional duty to make sure all the laws are faithfully executed, and the Congressional debt ceiling is a limitation on his ability to do so because Congress is not providing the President with the means to execute the laws that they themselves enacted. As a result, the President exercises power arbitrarily, deciding which programs will continue and which won’t. Politics being what it is, Presidents will do what their predecessors did: stop sending Social Security checks, shut down public offices, and close National Parks as a way of forcing public sentiment.
The second essay, penned by Stanford’s Michael McConnell, argues that the debt ceiling is, in accordance with section 5 of the 14th Amendment, perfectly within Congress’ legitimate authority.
The debt limit is nothing more than an authorization from Congress to borrow a certain amount, up to a certain limit. The debt ceiling is not a restriction on what would otherwise be the president’s ability to borrow; it is an authorization for the executive branch to borrow up to that ceiling. Above that, the president may not go.
McConnell argues that section 4 does not authorize the president to spend more money than Congress gives him, in no small part because this would violate Article 1, sec. 8 and thus turn the Constitution against itself. No sensible interpretation of the amendment would argue that its authors were consciously contradicting other part of the Constitution.
More to the point, McConnell argues that, given Congress’ authority in section 5, section 4 operates as a limit on Congress, not allowing it to deny the validity of the debt. As a post-Civil War amendment, the 14th was especially conscious to make sure, in the language of section 4, that Congress did not renege on soldier’s pensions or payments for services rendered. As students of American history know, not paying soldier’s for their service can have disastrous consequences. The 14th amendment insures that Congress will come through and make those payments.
Why would the 14th amendment specifically mention “the validity of the public debt”? From 1789 to 1860, the public debt of the United States was consistently under $100 million (the main reason for any increase in debt is always war). In 1860, the public debt was $64.8 million dollars. And then the rising debt caused by the civil war made its mark:
- 1861: $90.6 million
- 1862: $542 million
- 1863: $1 billion
- 1864: $2 billion
- 1865: $3 billion
America has a long history of struggling with the problem of debt, although one would have to look far and wide these days to find a single politician either concerned about it or who regards it as a moral failing, and the rapidly changing acceptance of massive deficits is one of the legacies of that war.
The debate points to the difficulties involved in Constitutional interpretation and – here’s my approach to it – that such debates are fundamentally irresolvable, in no small part because language is always imprecise, and this becomes an even bigger problem when writers are intentionally imprecise. Still, there are limits to what one can say interpretatively, and part of the challenge of any approach is to spell out what those limits are. As for me, I’m happier when people simply say “Well, of course the Constitution doesn’t allow that, but I don’t care what the Constitution says,” which at least has the virtue of honesty over those who whittle away at all meaning until they get what they want.
The 14th Amendment, as I indicated, has a most interesting history, both in its creation and how it has been used to shape our Constitutional system subsequently. Future essays will spell this out in more detail.
- Are debates about the debt ceiling really debates about debt or are they debates about spending priorities?
- What is the best way for Courts to interpret what the Constitution means? Are they bound by such meanings?
- Do you think Tribe or McConnell has the better interpretation of the 14th Amendment? Why?