On Oct. 11, David Adler of Boise State University expressed his opinion related to President Obama’s purported authority to lift the U.S. debt ceiling. I agree with his conclusion, but he erred in his argument about the 14th amendment to the U.S. Constitution.

Mr. Adler is correct that the issue involves the text of the 14th amendment, but he misquoted section 4 of that amendment out of its Civil War context, which very likely led to his error.

After his misquote he states, “(t)he clear purpose of the provision – prohibiting Congress from repudiating the national debt – was directed to Congress, not the president.” This is incorrect.

The 13th, 14th, and 15th amendments to the U.S. Constitution were deemed ratified by the States in December, 1865, July, 1868 and March, 1870, respectively. In Thomas Cooley’s 1875 update of Joseph Story’s 1833 Commentaries on the Constitution of the United States, Cooley explains the purpose of these amendments was to bring the defeated States of the Confederacy into a new regime of law under the prevailing federal authority.

The 14th amendment has five sections, the last being a standard provision in all three amendments giving Congress the power to enforce the amendment. This is the key part of the amendment directed to Congress.

The first section protects United States citizens against State power. It speaks specifically to the privileges and immunities of United States citizens, and the due process and equal protection rights mandated by the federal power to be respected by the States. When one reads it today, there can be no doubt that these clauses specifically bar States from taking certain actions against citizens of the United States. In 1868, this section immediately targeted the formerly rebellious southern States, certainly not Congress.

The second section of the 14th amendment alters the second section of Article 1 related to the election of representatives to the House of Representatives. Mr. Cooley states the 14th amendment “was adopted before colored persons generally were admitted to the privileges of suffrage, and this section thereof was intended to preclude the States which denied them that privilege from having the benefit of their numbers as a basis for representation.” After the passage of the 15th amendment, the need for section 2 of the 14th amendment was seen as superfluous. Representation in Congress definitely relates to individual State power, not overall congressional power.

The third section of the 14th amendment was enacted to disable persons from holding any State or federal office if they had sworn an oath to support the Constitution, but after taking that oath had “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” This section allows Congress, by a two-thirds vote of each house, to remove the disability. It specifically disables southern State rebels from holding public office.

And finally reaching section 4, which Mr. Cooley states had “for its chief object to protect the credit of the nation, first, by affirming the unquestionable character of the national indebtedness, and second, by precluding the assumption by the nation of obligations (related to the Civil War) with which it could not with any justice be burdened.”

Mr. Adler is incorrect that this provision was directed at Congress so that it would not repudiate the national debt. In fact, it barred all three branches of the United States from enacting a law to pay certain debt, and barred any State from paying debt related to the late rebellion, unless such debt was related to its suppression. President Lincoln had offered to pay loyal slave-holding States compensation for costs of emancipation, but the offer was refused. It barred the United States from paying certain debt, not repudiating debt.

This can be determined by fully quoting it. It states, “(t)he 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 4 barred the United States or any State from paying any debt or obligation incurred in aid of insurrection or rebellion against the United States. It also allowed the public debt of the United States to include debts incurred for services in suppressing insurrection or rebellion.

One can easily imagine how important these provisions were in 1868. The 14th amendment was not directed at Congress, except section 5, but all of it was directed at controlling the southern States late in rebellion.

Section 4 also reaffirmed the U.S. Constitution’s Article 1, section 10 barring States from passing laws “impairing the obligation of contracts.” After the Civil War, a question arose as to whether State-reformed constitutions could bar giving judgments to enforce contracts related to slave property, given the language of Article 1, section 10. The U.S. Supreme Court invalidated the States’ constitutional reforms to bar “jurisdiction to try, or give judgment on, or enforce any debt the consideration of which was a slave or the hire thereof.” White v. Hart, 80 U.S. 646, 648 (1872) (Georgia reformed constitution invalid).

Finally, the easiest way for Mr. Adler to make his argument would be to use the express language of the second clause of section 4, which states, “authorized by law.” For any public debt to be authorized by law, it must undergo the process to enact a law found in the second paragraph of section 7 of Article 1 of the U.S. Constitution. If President Obama had executive authority to unilaterally lift the U.S. debt ceiling, section 4 of the 14th amendment would be nullified, because that public debt would not have been authorized by law, but would have been the result of executive fiat. This is not the American system, and it is easy enough to figure out the system by reading the Constitution and some illuminating history.

Arthur Macomber is a Coeur d’Alene-based attorney.

 

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