Thursday, July 28, 2011

Invoking the 14th Amendment

On this date in 1868, the famous 14th Amendment to the U.S. constitution was ratified by the required ¾ of the states. Its purpose was to undo the damage done by the Supreme Court’s infamous Dred Scott decision (Dredd Scott v. Sanford, 1857) – the 19th-century political equivalent of Roe v. Wade – that held that persons of African descent were not U.S. citizens and were not protected by the Constitution. In 1866, the post-Civil War Reconstruction Congress corrected that monstrous policy of the Judicial Branch with a constitutional amendment whose expansive first section leaves no doubt about the basis for and inviolability of American citizenship: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

As an enactment of a victorious Union, having successfully defeated a rebellious secessionist movement, the 14th Amendment rightly reflected federal supremacy and the need to establish forever in the Constitution a clear basis for the exercise of federal power on behalf of the rights of citizens. In the century-plus since its adoption, the 14th Amendment (particularly its due process and equal protection clauses) has been construed in some potentially problematic ways – for example, in the legal fiction that corporations are “persons” and in the peculiar practice of “selective incorporation,” by which certain provisions of the Bill of Rights (initially intended to limit only federal power, not state power) have been imposed on the states, thus creating, for example, a host of church-state controversies, which probably should never have arisen in the first place. Of course, as with all political acts, judicial decisions may be substantively good or bad – depending on one’s particular point of view.

Now, the 14th Amendment is being cited by some (among them former President Bill Clinton and Iowa Senator Tom Harkin) as providing the President a way out of the debt-ceiling impasse. This time, it’s the amendment’s Section 4 that is being invoked: 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. In its original context, that provision was meant to ensure the payment of Union debts after the Civil War and (in the sentence the follows the one I just quoted) to disavow Confederate ones. As written, however, it seems legitimately to suggest a more universal interpretation. Moreover, the Supreme Court has held (Perry v. United States, 1935) that this does not apply just to public debt incurred in connection with the Civil War.

Now, the little constitutional law I learned years ago hardly qualifies me to adjudicate this question. But it does seem that the moral argument that Congress cannot rightly refuse to pay bills it has already authorized the U.S. to incur (which is really what this is all about) may also take the form of a straightforward legal argument. Of course, to say that, having ordered (a rather expensive) lunch, the country cannot rightfully refuse to use its credit card to pay for it does not, ipso facto, say that the President can unilaterally raise the debt-ceiling by invoking this provision. But it is, at least, a plausible interpretation. American constitutional history is, after all, full of examples of Presidents assuming unilateral powers no one had thought they had beforehand (much as the Supreme Court also has done in presuming to review congressional legislation). Like the President’s power to commit American forces to combat without a prior congressional declaration of war, a presidential power to increase the debt-ceiling unilaterally could in time become one more presidential power we will become accustomed to – and for much the same reason, inasmuch as Congress cannot effectively conduct foreign policy and maybe cannot (any longer) effectively deal with this issue.

Of course, Congress used to raise the debt-ceiling routinely. So the analogy is not perfect. But the political reality is comparable. Certainly someone would challenge the President’s action in federal court, and such a prospect would hardly safeguard the markets’ confidence in the security of our public debt. Even so, I could easily imagine Congress breathing a (private) sigh of relief at not having to vote on this anymore!

The President’s present public posture seems reluctant to embrace this option – no doubt for very good reasons over and above the President’s much noted tendency to be excessively cautious in such matters. Still it merits consideration – and having it on the table might just motivate a reluctant Congress to save some shreds of its dignity and actually do its job.

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