You have to have some pity for the 14th Amendment. Designed to make sure that the end of slavery (accomplished by its predecessor, the 13th) would be permanent, it has been expanded in so many ways.
For example, it has become the basis of “birthright citizenship” for the children of undocumented immigrants, since one of its provisions states that:
All persons born or naturalized in the United States and subject tothe jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
That particular interpretation is pretty well established, since it was part of the Congressional debate about proposing the amendment back in 1866, and was explicity confirmed by the Supreme Court in U.S. v. Wong Kim Ark in 1898. Some anti-immigration activists want to change it, but for the most part they understand that they would have to amend the Constitution to do so.
The 14th Amendment has also – less legitimately, in my opinion – become a major bulwark of the political power of corporations, most recently in the Citizens United decision that corporations (and labor unions) could not be barred from spending as much money as they wanted to try to influence elections. That decision was rooted partly in the 1st Amendment, but also in the following provision of the 14th:
…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.
Current interpretations of that language hold that corporations are persons, and therefore hold all the rights of human beings. Mountains have been written about that, and I shall not add to them here.
The latest effort to expand the 14th came during the recent debate on raising the ceiling on federal debt. I was all for raising the ceiling, without any restrictinos (see my last several posts). I’d go even further, and authorize the government to borrow money without any statutory limit. After all, we always have to raise the limit when it is reached, so why go through the charade?
However, I am just not convinced by the well-meaning attempts to say that the President has the authority to raise the ceiling without Congressional approval. These attempts are grounded in Section 4 of the Amendment, which begins:
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.
This means, the argument goes, that the U.S. has to pay its debt service, even if that requires borrowing beyond the debt ceiling. Sorry, I wish it were so, but that interpretation is just not supported by the amendment’s language, for several reasons:
- First, if you skip a payment on your mortgage, you are not questioning the validity of the mortgage – you still owe the money, and expect to have to pay it or lose your house. You are just unable to make a payment at that time. Similarly, even if the US did default-a horrible prospect- it would not be saying that the national debt was ‘invalid.’
- In any case, if the US rolled over notes that came due, borrowing money in order to pay them, doing so would not change the total amount owed, so the debt celing would not be a problem. Borrowing to pay the interest would be another matter, but see below.
- Finally, the government still has revenue coming in all the time; it is just not coming in fast enough to pay all the bills. So if you interpret the 14th to mean that payment of debt is Constitutionally required, that would just mean that debt service would get the first claim on revenues. It is very unlikely that debt service alone would exceed total federal revenue, so it could get paid. Again, the consequences would be terrible – lots of other desirable, even vital government functions couldn’t be carried out – but ‘terrible’ is not the same as ‘unconstititional.’
I understand the idea of threatening to use the 14th Amendment as a scare tactic. However, I don’t think there is a good legal argument for it; and I don’t think we should accept the practice of having Presidents change the meaning of the Constitution to meet the political needs of the moment.