Suddenly, without warning, after months of debate and recrimination over the issue of raising the debt ceiling, a radical new possibility has surfaced which, if embraced by Obama, would totally alter the entire economic and political playing field. It is now being suggested that the President does not need authorization by Congress to raise the debt ceiling and issue new Treasury securities, that indeed regardless of what Congress does he is required to do so! All of this rests on an obscure passage in the 14th Amendment to the U. S. Constitution, viz:
"Section 4. 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."
As the text makes clear, this Article was added to deal with the potentially explosive question of debts of the Confederacy and the demand by former slave-owners for compensation for their "property." But in 1935, the United States Supreme Court, in a case actually having to do with debts the U. S. incurred while operating on the Gold Standard, took a quite expansive view of Article 4 [see Perry v. United States, 1935]. The court was actually split 4-4-1 on the correct resolution of the case and its implications, but at least eight of the nine justices were in agreement that the United States was absolutely required to meet its debt obligations. Now, I am no sort of Constitutional scholar at all, but it does seem to me that if the Congress and the President jointly have, through Act of Congress, spent certain monies, thereby committing the good faith and credit of the United States, then the Administration is constitutionally obligated to fulfill those commitments, regardless of whatever artificial ceiling that same Congress has imposed on the government's issuing of debt.
It takes no brains at all to see that if Obama were to invoke this power, all hell would break loose. He would almost certainly face impeachment in the House of Representatives, and win his case in the Senate. This would not be a nonsense impeachment over sexual peccadillo's, but a genuine Constitutional confrontation, and in my amateur opinion, Obama would be in the right.
We shall see.
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One aspect of the Section 4 debate that touches on a personal preoccupation of mine - the politics of originalism - and so interests me is how it looks like Jack Balkin (Yale), one of the architects of (what you might call) "leftwing originalism," is trying to use it as a testing ground for his (Faustian) efforts to co-opt originalism for the left.
See here: http://balkin.blogspot.com/2011/06/legislative-history-of-section-four-of.html
and
here: http://balkin.blogspot.com/2011/07/more-on-original-meaning-of-section.html
Context: Balkin spent a good bit of the early part of his career thinking about how constitutional rhetoric (and rhetoric more generally) works. His view is that a great deal of constitutional law is the product of political mobilizations in favor of (or against) one or another matrix of constitutional rhetoric. Unlike an older generation of constitutional doctrinalists - who believed that constitutional law unfolded from Supreme Court precedent, and so good constitutional lawyering involved careful attention to case law - Balkin thinks that good constitutional lawyering involves cunning manipulation of whatever mode of constitutional "reasoning" is [typically for political reasons] currently ascendant.
Originalism is that mode, so beginning in 2005 Balkin set about using originalist rhetoric to defend the constitutionality of Progressive results. He has so-far written originalist defenses of the right to choose, affirmative action, and the modern sweep of the Commerce Power [including the ACA].*
In 2008 he helped to found the Constitutional Accountability Center - a Progressive think tank cum public interest law firm dedicated to advancing Progressive arguments within an originalist framework - which just recently published a white paper (the first call-to-arms of its kind I know of) explicitly urging Progressives to rally 'round originalism, because, simplistic though its slogans be, it is now hegemonic [and "living constitutionalism" deligitimated]. (http://theusconstitution.org/blog.history/?p=2947)
Obviously I don't know what's inside Jack Balkin's head, but I think his efforts on Section 4 can be seen as an attempt to frame the issue early as a leftwing originalist one, and so to test the effectiveness, and up the profile, of his / the CAC's strategy. (This is possibly what Mark Tushnet means when he says that Section 4 is "the left's Heller" (http://balkin.blogspot.com/2011/07/what-part-of-republican-form-of.html).
* A great account of all this can be found in Northwestern LawProf Andrew Koppelman's (tongue-in-cheek) article "Why Jack Balkin is Disgusting."
Everyone seems to love Amendment 14 so much that they stop reading after Article 4. There is, however, an Article 5, which is not read by Clinton or Obama.
"Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
NB: CONGRESS has the power... Not the President.
Article 5 refers to the entire Amendment, not just to Article 4. I think it would be an interesting Constitutional question whether the President is required to enforce the Amendment if the Congress fails to do so.
I suppose Article 4 can be read as a prohibition applying to individuals. If so, questioning the public debt of the United States would be one of the very few ways in which an individual, not acting in an official governmental capacity, can violate the Constitution. The other two
I know of were pointed out by Lawrence Tribe, I think: owning a slave, and importing alcohol into a state that prohibits it.
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