an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
First, why should we pay attention to Senator Wade's speech, which I claim explains the purposes behind section 4, when his proposal was not the final version?
Second, given that the language of section 4 changed through the various proposals, how should we understand these differences in interpreting the Public Debt Clause today?
Third, there is a legal difference between repudiating debt and merely defaulting on debt. So why shouldn't we read the Public Debt Clause quite narrowly to prohibit only direct repudiation of debt, instead of mere defaults or threats to default? Under that interpretation, nothing the contemporary Republicans are doing would fall within the prohibitions of the Clause.
Let me answer these questions in turn. I. Why Ben Wade Matters
In my post, I argued that Senator Wade's speech explained the key purposes behind the guarantee of the federal debt in section 4. Wade argued that the purpose of his proposal, which ultimately became Section 4, was to prevent the validity of the public debt from being used as a tool of partisan struggle and partisan revenge: "every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject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."
Stern dismisses Senator Wade's speech as just the views of "a single senator" about a proposal with quite different language from the final version. He makes it sound as if Wade just was some random Senator who offered a proposal that was shot down and a better one put in its place.
But Ben Wade was not just any senator. He was a key Republican leader during this period-- the leader of the Radical Republicans, in fact-- and was soon to be elected President pro tempore of the Senate. This was not merely an honorary title, as it is today. It made him, in effect, the Vice-President in waiting. (Because of Lincoln's assassination, there was no Vice-President-- the Twenty Fifth Amendment would not be ratified for a century). Thus, everyone understood that the effect of convicting Andrew Johnson was to make Ben Wade President.
Thus, Wade's proposal, and the reasons he gave for it, mattered a lot to the people he was speaking to. Moreover, what he said in his speech, and the reasons he gave in his speech, were not at all idiosyncratic; they reflected what the Committee of Fifteen discovered in the hearings it held leading up to the drafting of the Fourteenth Amendment. Testimony suggested that once the ex-rebels returned to power, they would try to avoid paying the federal debt and attempt to get the government to pay the Confederate debt. See Benjamin Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction at 282-85; see also Garrett Epps, The Undiscovered Country: Northern Views Of The Defeated South And The Political Background Of The Fourteenth Amendment, 13 Temp. Pol. & Civ. Rts. L. Rev. 411, 419-21 (2004).
Thus, when Wade spoke, he was speaking as the leader of the Radical faction, and not simply as some nondescript back-bencher. In dismissing Wade's remarks, Stern invokes Justice Scalia's distaste for legislative history. Yet it is commonplace in originalist studies of the Fourteenth Amendment--and indeed of the Founding--to pay careful attention to who is proposing what, and what happens to these proposals. Given that Section 4 was Ben Wade's idea, Stern's dismissal of Wade's comments would be a little like saying that statements of James Madison's about early drafts of the Bill of Rights in the First Congress were just the comments of "a single Congressman" that didn't make it into the final versions. Of course we wouldn't say that, because we know Madison's importance to the process. We would, however, pay attention to differences in language between earlier versions and later ones, and the ways in which Madison didn't always get what he wanted. On this point Stern and I agree.
II. How should we understand the changes in language between the different versions of section 4?
I think Stern is altogether too dismissive of Wade's proposal as evidence of the purposes of section 4: he speaks of the Senate "rejecting" Wade's proposal in favor of Howard's. This misunderstands what was going on in the 39th Congress.
The idea of protecting Union debt in the Fourteenth Amendment was Wade's idea. And the Senate never rejected Wade's proposal, because it was never put to an up or down vote, as other proposals put forward by backbenchers and opponents of the Amendment were. Howard was the floor manager of the bill in the Senate. It was his job to consult with everyone, including especially the Republican leadership. Howard accepted Wade's ideas, discussed them with other Republican leaders, and reshaped them into the official proposal that was later put before the Senate, and subsequently modified by Clark. For the same reason, it's not an accident that Senator Clark, the Chairman of the Claims Committee in the 39th Congress, makes the final adjustments to the language. As Chairman of the Claims Committee, this was his special area of expertise.
There are several important differences between Wade's original version, Howard's and Clark's, but these differences do not alter the basic structural principle that justified the protection of Union debt-- the genuine fear of what the ex-rebels in the Democratic Party would do once they returned to power. We see a similar concern in several other places in the debates over the Fourteenth Amendment; one of the most famous is in the objections to John Bingham's early draft of Section One in the House of Representatives. Representative Hotchkiss argued that Bingham's draft, which simply bestowed new powers on Congress, gave blacks insufficient projection from a future Congress controlled by former rebels. Rather than simply allowing Congress to pass civil rights laws, the Amendment should lock in protection for the freedmen that Democrats could not alter, and it should have a judicially enforceable guarantee of civil rights.
Indeed, one of the most important features of the political context that led to the Fourteenth Amendment is that Southern Representatives and Senators were excluded from the deliberations so that Republicans could achieve the necessary supermajorities for passage. Everyone in these debates well understood that once Southern Democrats reentered Congress, they would have revenge on their minds and this concern appears repeatedly in the debates over the Fourteenth Amendment.
Stern's statement that "the Senate did not intend to alter the degree of legal protection that the public debt previously enjoyed but was not of one mind regarding what that protection was" does not take this history seriously. The whole point of section 4 was that Republicans understood that existing protections for the public debt were not sufficient and needed new constitutional safeguards. That is why new language was put in the Constitution in the first place.
It is no accident that Senator Hendricks, an opponent of the amendment, blithely (and somewhat disingenuously) suggests that the status quo is just fine and that ordinary political process will take care of any problems with the public debt. The Republicans clearly did not agree. The whole point of the Fourteenth Amendment was not to preserve the status quo; it was to entrench certain results in the Constitution. As historians of the period have pointed out, the Fourteenth Amendment was an armistice imposed on the defeated South designed to prevent the Slave Power from reasserting itself.
Stern also misreads the legislative record, which leads him to misunderstand the exchange between Senators Clark and Johnson. On June 8th, Clark brings up for a vote a proposal he had previously made to strike out the entirety of the fourth and fifth sections of the amendment (Howard's version) and replace them with a single section, which will become the final version of section 4; he further wishes to strike one word (the word "forever") in his proposal, because he believes it is superfluous. The Secretary then reads out loud the language that will be substituted for the fourth and fifth sections.
At this point, Senator Johnson says "I do not understand that this changes at all the effect of the fourth and fifth sections. The result is the same." Clark agrees: "The result is the same."
Stern claims that Johnson and Clark are referring only to the removal of the single word "forever" from Clark's final proposal. This is incorrect. After the Secretary reads the whole of Clark's proposed substitute, Johnson says that this language is not different in effect from the fourth and fifth sections which have just been replaced. Here is the page in Congressional Globe, so you can read it for yourself.
In my original post, I argued that the Senators did not appear to believe that there was a big difference between the three proposals. Stern thinks that I am claiming that there is no difference between Wade's and Clark's proposals. I agree that there are differences. But my point is that Johnson and Clark (who wrote the proposal) state that the effect of *Howard's* version and *Clark's* version is pretty much the same.
So let us compare the two proposals:
"The obligations of the United States, incurred in suppressing insurrection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolable." (Howard)
"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." (Clark)
I note at the outset that there *is* one important difference: Clark's final version is broader then Howard's proposal, because it is not restricted by subject matter as Howard's is. In this respect, the final version is actually is closer in scope to Wade's original proposal.
Stern argues that there is a big difference between saying that debt shall be inviolable and that its validity shall not be questioned. I can see why he might think so. Unfortunately for him, the author of the final language, Clark, seems to disagree. I'll address why that might be so in a moment.
Similarly, Stern argues that there is an important difference between protecting "the debt of the United States" and protecting "[t]he obligations of the United States." Once again, I can certainly understand why he might believe this, but once again, the actual author of the version doesn't think the difference is all that great. And remember, Clark is the Chairman of the Claims Committee in the 39th Congress, so he would have particular expertise in this area.
Now one reason why Clark may not have focused on the difference between "debt" and "obligation" is that the terms were not strongly differentiated in 1866. (Michael Abramowicz makes a similar point in his article on the Public Debt Clause just published on SSRN). Why might that be? Well, the federal government does a lot more now than it did in 1866; it maintains a vast welfare state with many contractors and it performs many different sorts of social services. Making a sharper distinction between "debts" and "obligations" might make more sense today. Note, by the way that if you look at Wade's original proposal, you'll see a similar slide between the two concepts of "debt" and "obligation": Wade's proposal protects "The public debt of the United States, including all debts or obligations."
III. Does Section 4 protect only against repudiation of debt, or does it also protect against defaults and threats of defaults?
To my mind, Stern's most important contribution is pointing out that there is a difference between *repudiation* of a debt obligation and *defaulting* on a debt or obligation. (And, I might add, there is also a difference between actually defaulting and threatening to default.) Roughly speaking, to repudiate a debt means that you state that you are not going to pay it and that you don't owe the money. Defaulting on a debt means that you aren't able to perform, but you still acknowledge that you owe the money.
Much of the language in the debates speaks about repudiating the public debt (or obligations). Why should we think that the framers were at all concerned with merely defaulting (or threatening to default) on public debt? As I read Stern, he is saying that merely defaulting on government debt, or merely threatening to default on government debt should not be understood as "questioning" the validity of the public debt as long as the debt is not formally repudiated.
I think that this reading is artificially narrow. It is inconsistent with the political context that produced Section 4, because it would not give the Republicans the sort of assurances they needed. We should interpret section 4 so that it solved the political problems that the Republicans wanted to solve. If our proposed interpretation does not solve those problems, it is very likely that we have picked the wrong reading.
I begin with the assumption that the central purpose of section 4 was to prevent the Democrats, once they regained political power, from repudiating the Union debt-- including pensions and bounties. To use my colleague Jed Rubenfeld's language, this was the "paradigm case" of what Section 4 prohibited. But what if the Democrats did not officially repudiate the Union debt but but merely chose (or threatened) not to repay it?
Imagine that the Democrats regained power in 1874 (In fact, they won the House that year and almost won the Presidency in 1876.) The economy had gone into free fall in the Panic of 1873, which was one reason why the Democrats rebounded politically.
Now imagine that the Democrats do not officially repudiate the Union war debt. They agree that these debts are legally valid. Nevertheless, they argue, the economy is in a bad way, and something must be done about the enormous waste and fraud involved in Union pensions, bounties, and defense expenditures, or to use a modern expression-- the exploding "entitlements" created by the former tax-and-spend Republican government. Therefore, they deliberately appropriate less than is necessary to pay the debts as they come due, and they prevent the government from issuing new debt to help pay off existing obligations.
The Democrats are careful to stop short of officially repudiating these debts. They do not say that they will never pay them. Instead, they argue that in the middle of a recession, the government simply does not have enough money to pay its debts to Union pensioners and widows, and fiscal prudence counsels against allowing Congress to raise additional monies to do so.
Of course, the Democrats say, they would be willing to consider changing their minds, but only if the Republicans agree to repeal the Civil Rights Acts of 1866, 1870, and 1871 and remove federal troops from the South (the latter actually occurred as a result of the Compromise of 1877, which smoothed over the disputed election of 1876.). The Republicans respond that this is blackmail, and that the ex-rebels are threatening to crash the economy in order to win concessions on civil rights and Reconstruction. The Democrats respond that they are only being fiscally prudent, that the costs of Reconstruction are bankrupting the country, and besides, they have never said they would actually repudiate the federal debt. They are just putting it off for awhile until the country gets on its financial feet, or the Republicans change their minds about Reconstruction.
Under this set of facts, would section 4 be violated? Stern seems to suggest that it would not be, because all the Democrats are doing is threatening default and they are not repudiating federal debt. But I would suggest that this is very sort of thing that the Republicans were worried about. They feared that the Democrats would use a future economic crisis over the debt to wring political concessions. The Republicans believed that the ex-rebels and their sympathizers would someday return to power, and they wanted to prevent them from making payment of the public debt into a weapon of political threat and reprisal. If the practices I have just described would not constitute a violation of section 4, then the section is practically meaningless.
There is much more to say about how to interpret section 4, and whether it is judicially enforceable. But that is a subject for a later post.