It’s difficult to think of an amendment to the U.S. Constitution that is truly “obscure”–although the 3rd Amendment is certainly an interesting historical relic as it restricts the government’s garrisoning of troops in civilian houses. However, some sections of the Constitution, including amendents, clearly do deserve this moniker, and this week one such provision has suddenly become part of the debt ceiling debate. Of course, the 14th Amendment can hardly qualify as ‘obscure’ as a whole, given that it governs citizenship rights, expands due process and equal protection rights to also bind state governments and was promulgated as part of the Reconstruction Amendments of the post-Civil War period.
However, clearly there are phrases and parcels of the Constitution that are mystifying and esoteric, and part of the 14th has generally escaped notice until now: namely section 4 which reads: “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.” Section 4 was designed to indicate that any debts incurred by the Union during the Civil War were valid–and conversely, that Confederate debts were not, as section 4 goes on to say “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.” And of course it is supposed that any debt incurred or issued by the U.S. following this amendment would also be valid. It also appears uncontroversial that this section of the 14th Amendment is largely a historical anacronism. While the 3rd Amendment made perfect sense at the time of its promulgation, given the nasty tendency of occupying British soldiers to make themselves at home in civilian houses, section 4 of the 14th Amendment likewise had a perfect internal logic in the aftermath of the Civil War. But would it have any meaning now?
If jurists agree on anything regarding constitutional interpretation, it is probably that no-one exactly knows what this constitutional provision really means, or what if any applicability it would have today. It has been suggested, by Former President Clinton no less, that if he were president he would utilize the Executive power under the 14th Amendment and take unilateral action. But it cannot be said with any certainty that this section actually gives power to the Executive branch (although the Executive is tasked with executing and enforcing the laws), rather than Congress, or that the debt ceiling has to do with the ‘validity’ of the debt, or that section 4 really encompasses this issue at all rather than merely saying that all debts could not be retroactively deemed to be invalid–as the former Confederate states might well have chosen to do should they have regained power of Congress in the postbellum period. This is doubtlessly a fascinating constitutional question, and one that interests the legal historian because it is not often than a constitutional provision which has largely lay dormant for so long suddenly becomes the focus of discussion. Ultimately, however, the question might well be less about whether the President has the constitutional authority under the 14th Amendment to raise the debt ceiling–a question that constitutional pundits will discuss for some time and which would take a clear opinion by the Supreme Court to definitively answer–but what would happen if he did. The public would probably release a sigh of relief, foreign markets would be at least somewhat placated, and there doubtlessly would be shrill cries from some inside Congress and a challenge of some kind. What type of challenge– a court challenge by aggrieved Congressional members, mere posturing, articles of impeachment being drawn up, battle lines drawn in the next election, or the like–could only be conjectural, but challenged the President’s actions would be, although almost definitely post facto.
This might be an interesting spectacle to watch, and even perhaps necessary should legislative action not be forthcoming. Certainly it would make for fascinating political theater and interesting scholarly discourse, regardless of other consequences. However, ultimately–and regardless of the intent underlying section 4 of the 14th Amendment– the fundamental, constitutional duty of Congress to address this issue is unassailably clear. If the solution has to involve a little-remembered, little-understood constitutional provision, then Congress will clearly have abrogated its duty.