Friday, July 08, 2011

Is Section 4 Alive?

Jason Mazzone

My colleagues-in-blogging have taught me a good deal about section 4 of the 14th Amendment and they have given me a lot to think about during the debt ceiling debates. But a question continues to nag me: What is the reason for thinking that section 4 applies beyond the context of Union debts incurred during the Civil War? Put differently, is Section 4 even alive today?

The text does not obviously answer this question. Section 4 says:
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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

It's certainly possible that the first sentence of section 4 is forward looking and is meant to apply to all public debts incurred by the federal government at any time in the future. One can, for example, contrast section 4, above, with the first clause of Article VI ("All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation."). But it's possible also to read the first sentence of section 4 as referring only to the debt the U.S. government had already incurred: "the public debt . . . authorized by law." This interpretation seems strengthened by the "including...." language. The public debt whose validity shall not be questioned includes the bounties and pensions owed to soldiers who served to suppress rebellion against the United States. Perhaps this too anticipates future rebellions (with future bounties and pensions incurred as debts) but it's hard to avoid the inference that the "rebellion" in question is that by the Confederacy. The second sentence of section 4 seems even more strongly limited to the context of the Civil War. In particular, it is hard to see how with the 13th Amendment in place claims for losses of slaves would extend very far into the future. If the second sentence of section 4 is a Civil War provision, then, arguably, its companion, the first sentence of section 4, is a Civil War provision also. Finally, look at the rest of the Fourteenth Amendment. Section 4 (like section 3) seems to me to read quite differently from section 1--which clearly does tilt to the future.

We also have the legislative history Jack has set forth. That seems tightly tied to the issue of the Union's war debt. Senator Wade's explanation, which Jack quotes at length, appears to be only about the Union debt and the need to protect Union soldiers and their dependents. The statements Jack quotes are tied to the past in a way that debates about, say, section 1 of the Fourteenth Amendment were not. Perhaps there is other language from the legislative history which also supports a prospective reading of section 4.

Finally, we have Perry v. United States (1935), holding unconstitutional a Congressional attempt to nullify gold clauses in government bonds. Perry's holding, however, is not based on the Fourteenth Amendment and it provides only weak evidence that section 4 of the Fourteenth Amendment lives. All Perry says about section 4 is this:

The Fourteenth Amendment, in its fourth section, explicitly declares: "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned." While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the Amendment was adopted. Nor can we perceive any reason for not considering the expression "the validity of the public debt" as embracing whatever concerns the integrity of the public obligations.

According to Perry, then, section 4 confirms a "fundamental principle" and it is that principle, rather than section 4 itself, that limits Congress's power to renege on its obligations. Indeed, the bulk of the Perry opinion is all about that "principle," with the 14th Amendment put forth to buttress the Court's holding. (In invalidating the congressional resolution at issue in the case, the Court offers various principled statements like this: "To say that the Congress may withdraw or ignore that pledge is to assume that the Constitution contemplates a vain promise, a pledge having no other sanction than the pleasure and convenience of the pledgor. This Court has given no sanction to such a conception of the obligations of our government.")

So if the text of section 4 of the Fourteenth Amendment is open to a reading limited to the Civil War, the legislative history is all (?) about the Union debt, and the Supreme Court has never breathed life into section 4 does section 4 live? Or did it die with the satisfaction of "the public debt" incurred during the Civil War, including "pensions and bounties"?


Does it matter? As long as the "fundamental principle" behind it is alive, and it is, in more decisions than just Perry, is this more than an unimportant question of semantics? The natural reading seems to me to be the court's in Perry. And the Four Horsemen dissented in Perry because they held that the majority was engaging in gymnastics to not give Perry the gold or equivalent he wanted. The point is that they agreed on the "fundamental principle" expressed in the 14th more strongly than the majority did; on the "fundamental principle" the court was unanimous.

And remember the "militia" aspect of the Second Amendment that turns out, some 200+ years later, not to be controlling or significant in its interpretation? And remember the timing and circumstances of all three Civil War Amendments and subsequent interpretations/constructions beyond slavery? Specifically as to the entire 14th Amendment, not merely its Section 4, it was interpreted and construed over the years beyond the specific evils that brought about the Civil War, without specific language incorporating any of the Bill of Rights. If Section 4 of the 14th Amendment is obsolete because of the lapse of time following the Civil War, then what constitutional provisions are there governing "public debt" (however defined) in effect today?

Because, as a simple matter of grammar, "including" doesn't mean "limited to"? Making all 'interpretations' that limit the clause to Civil war debt steaming piles?

OTOH, I do rather doubt that, should Congress ever make a clear political decision to embrace default, rather that simply being deadlocked over HOW it should be avoided, that the courts would be willing to enforce that clause. Not because it's in any way limited to Civil war debt.

Because they're not very big on enforcing the Constitution.

Brett:OTOH, I do rather doubt that, should Congress ever make a clear political decision to embrace default ... the courts would be willing to enforce that clause.
Because they're not very big on enforcing the Constitution.
Yes, with the exception of when enforcing the Constitution helps the rich and powerful. Preventing the US defaulting for no reason whatsoever, preventing tremendous damage to the economy, would be a rare case where the interests of the rich and powerful are completely aligned with everyone else's. I'd take the other side of the bet from you.


I partly agree, in that Perry also said that Congress's power to issue debt was based on (and limited by) our "public credit." Of course, this is still just the plurality opinion, so none of that language is controlling.

Professor Mazzone- you make an interesting observation, which had not occurred to me in studying the relevant materials over the past few weeks. I think, on balance, that I would tend to reject your reading, but it is a close question.

The first reason for reading Section Four as embracing all public debt is that this seems like a more natural reading of the language. As a literal matter, you are no doubt correct that it could be read to refer only to public debt that existed at the time the amendment was adopted, but this is a less intuitive reading of a constitutional provision which is presumed to be permanent and universal in its application. For an analogous issue, consider the loyalty provision of Section Three, which although was obviously directed at Confederates, was held by House in the case of the seating of Victor Berger (see VI Cannons 57-59) to justify refusal to seat a socialist with a record of disloyal activities.

The second reason relates to this statement made by Senator Wade in support of his initial proposal: “It puts the debt incurred in the civil war on our part under the guardianship of the Constitution of the United States, so that a Congress cannot repudiate it. I believe that to do this will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that 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 rise in Congress.”

Although Wade’s focus was on civil war debt, the statement that he made regarding giving “great confidence to capitalists” and “pecuniary benefit” to the United States doesn’t make much sense unless he thought that his proposed language would assist the US in being able to borrow money in the future on favorable terms. While I have also warned against giving undue weight to Wade’s statements, as his proposal was never adopted by the Senate, it seems to me that his statement here tends to confirm the natural reading of the term “public debt.”

Finally, I had previously read Perry to confirm that Section Four was not limited to civil war debt. Now that you point it out, I see that it could be read to simply mean that while Section Four itself was limited to debt existing at the time of the civil war, the principle it confirms is broader in application. I still think that my original reading of Perry is (very) slightly better, but yours is certainly possible.

At the end of the day, I don’t think it matters much because the only legally operative effect of Section Four is to ensure that civil war debt retains the same validity as the rest of the public debt. I do not believe that Section Four defines the legal protection which exists as a result of that validity, or attempts to change the level of protection that existed before the Fourteenth Amendment was adopted. This is what I think Perry meant when the court said Section Four was “confirmatory” of constitutional protections which existed before it was adopted.

mls' closing paragraph is cogent, but what are the specific provisions in the Constitution that preceded the enactment of the 14th Amendment that he " ... thinks Perry meant when the court said Section Four was 'confirmatory' of constitutional protections which existed before it was adopted"? Was Section 4 partially redundant?

Shag- I believe that Perry was referring to the Article I powers "to pay the Debts" and to "borrow Money on the credit of the United States." Essentially, the court was saying that these provisions mean that Congress must pay back the money it borrows "on the credit of the United States." Congress can't borrow money and then decide it would prefer not to pay it back.

I am wary with such a time locked reading of the 14A and find others more convincing on the point.

It rubs me too much like the idea that the Territory Clause only meant the territories then and there present when it was ratified. Constitutional provisions should not be deemed to have such a limited reach unless compelled by the text.

I think Brett is right to note the word "including" -- the amendment is specifically concerned about the present but sets forth a rule for the future.

mls' response closes with this:

"Congress can't borrow money and then decide it would prefer not to pay it back."

If Congress does not pass a bill to increase the debt ceiling, isn't that a decision indicating such a preference (subject, however, to the meaning of "public debt" in Section 4, which phrase does not appear in Sections 8 and 9 of Article I)? Congress seems to have the power to pass bills creating unfunded obligations but does Congress have the obligation to appropriate such funding? Can "public debt" result from such unfunded obligations? My next Social Security check is scheduled for direct deposit on August 3rd. "A nice mess, Ollie."

Shag- suppose that President Obama demanded that Congress raise taxes by 5 percent, and said that this was necessary to pay the debt of the United States. Congress, instead, passes a bill to raise the debt limit, which Obama vetoes. He argues that simply increasing our debt will ultimately bring it to the point where we cannot pay it, thus bringing the creditworthiness of the US into question. Each side accuses the other of violating the letter and/or spirit of the Public Debt Clause.

Does the Constitution tell us which of these positions is correct? I say no. I suppose one could argue that the Constitution tells us that the fiscal affairs of the nation must be managed prudently (although I am not sure that this as a constitutional command rather than common sense is particularly helpful), but it certainly does not tell us which economic theory or strategy is the correct one in a particular set of circumstances.


The only situation in which the Public Debt Clause can conceivably compel additional taxation or borrowing is if the interest on the debt exceeds current tax revenues.

In that case, who gives a damn because the Republic would insolvent and on the brink of economic and military collapse.

The Public Debt Clause' only current effect is to compel the Treasury to use current tax revenues to pay interest on the public debt before any other expenses. The rest is partisan motivated nonsense.

In times of decreased liquidity, those people or entities holding assets and controlling resources are at an enhanced advantage.

For a congress faction to impair further the improvements which the US treasury has realized over the first two years of the Democratic party led administration, is a clumsy ploy to strengthen the affluence of the resource holders.

As many observers describe, there would be some marginal decrement, perhaps, to the fungibility of those assets so held. The Tea Party inspired, not led, Republican wager is that the 'decrement' to the overall national, and global, worth of resource holders will afford a relative strengthening of control, after the debt limit fracas dust has settled. The Tea Party needs to look at its leadership's asset portfolio, and compute these strategic outcomes, before plunging the entirety of southern Europe into unemployment.

The overall dispute recalls the numerous occasions upon which many a political speech was concocted in support of the proposition: Resolved: The Unites States should abolish foreign aid.

Except, in this instance the foreign nation is ourselves.

Or, in permutation, there have been numerous instances of the US' disciplining recipients of foreign aid by threatening to or actually suspending aid promised.

I think it significant that there is secessionist influence visible in some of the public remarks made in support of defaulting on US debt. But it is a changed world since cotton was monarch.

As for the temporality component of prof Mazzone's 14A dispute, I tend to align with host JB's initial June 30, 2011 summary of the postbellum legislative history, supplementing that with JB's followup July 2, 2011, which links to the minutes of the Senate secretary on June 8, 1866. With respect to the last link, I observed its text appears less than verbatim in style in numerous places; which is a characteristic still patently part of US Senate tradition with respect to its parliamentary chronicle.

Law historian Paul Madison concludes the provision merely prevents Congress from disowning the public debt but not from defaulting. More here:

Twenty years from now you will be more disappointed by the things you didn’t do than by the ones you did do.
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