Fourteenth Amendment And The Fiscal Cliff

The fourteenth amendment to the Constitution of the United States was ratified in July, 1868. Section 1 was aimed at preventing former slave states from enforcing "black laws" that sought to return former slaves to a condition very similar to slavery. Section 2 provided a possible sanction against states that prevented former slaves from voting. Section 3 prohibited former officials who had sworn to uphold the US Constitution and subsequently took part in the rebellion from holding public office.

The most interesting provision is Section 4 that "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." It also provided that neither the United States nor any state could pay any debt incurred in support of the rebellion. That referred to a fairly large number of Confederate bonds purchased by British and French investors during the Civil War.

The obvious concern of the "public debt" provision was that states of the former Confederacy might be able to prevent the United States from repaying debt that had financed Union conduct of the war, thus paralyzing the government. We now have a similar possibility if Republicans in the House of Representatives refuse to authorize an increase in the debt limit.

Some argue that the debt limit itself violates Section 4 of the Fourteenth Amendment, though that has never been adjudicated. Will Republicans push the country to the brink once again? Stand by.

For what it's worth, I find the argument persuasive that Congressional refusal to increase the debt limit to allow the Treasury to pay obligations already authorized by law would violate the Fourteenth Amendment.

14th Amendment

Amendment XIV

Section 1.

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.

Section 2.

Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

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.

Section 5.

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.