The 14th Amendment & Other Blind Alleys
Congressmen James Clyburn, D-South Carolina, John Larson, D-Connecticut, who chairs the Democratic caucus, and Xavier Becerra, D-Los Angeles, seem to believe they’ve struck gold, or at least silver in the form of a silver bullet by which Barack Obama would be empowered with the ability to unilaterally usurp the power of our politically polarized congressional, raise the nation’s debt ceiling by presidential fiat, and save us all from certain economic catastrophe brief seconds before our mothers, our flags and our apple pies are snatched away forever by the dastardly actions of mustachioed villains.
In succinct terms, these liberal representatives of the American people’s best interests are urging Obama to invoke a clause from the 14th Amendment of the U.S. Constitution which, according to their somewhat questionable understanding, gives Obama the presidential authority to cut through the Gordian Knot of political bickering that has paralyzed congressional action on the budget, and single handedly raise the debt limit by executive order, thereby ensuring the continued good credit rating of the United States.
James Clyburn is the guy that denounced Bill Clinton as a racist after Clinton compared Obama’s 2008 victory in the South Carolina primary to Jesse Jackson’s win in the 1988 primary election. He is also the character that leveled the hysterical allegation that the number two primary political party in the U.S., the GOP is a plague on the American people, as opposed to being the legitimate party of the opposition as any reasonable Democratic representative would view them. Clyburn is also one of those Washington politicians who seems to think that the really good changes, the history making changes in government, come not as a result of congressional debate among the legitimate representatives of the people, but as a result of presidential actions stretching the bonds of legal authority. To support this view he points to the Emancipation Proclamation, the executive order to racially integrate the armed forces, and the executive order that ended desegregation in the public schools. In each of these examples congressional action was stymied by incessant political bickering and the resolution that was necessary to solve the problem being confronted came only as a result of an executive order issued on the authority of the President at the time. I will point out that all of Clyburn’s examples have to do with items that are considered sacrosanct civil rights victories by various minority groups, however, I will not speculate on why he chose these specific examples or why he believes they are relevant to the issue of the debt ceiling.
Clyburn’s exuberant support for Obama unilaterally ending the congressional debt ceiling debate with a presidential mandate has attracted a great deal of attention in the press, and as the deadline for action moves closer, the bug-eyed panic of the overly-liberal American press will seek to pound the American public into jellied submission with an ever-increasing supply of speculative opinion regarding the 14th Amendment provision now being waved about like some magical talisman that will protect us all from the catastrophic consequences that these same hysterical journalists spit and spew about as if they had any real basis for valid concern.
Admittedly, when the 14th Amendment provision being spoken of here, is removed from the context of the numerous paragraphs preceding it as well as the few that follow, and this single paragraph, freed from its context, is placed under glass in a vacuum so that it can only be seen from one side, it might be possible (with sufficient squinting) to extract something along the lines of what Mr. Clyburn claims to see in those lines of text. However, freed from these onerous restrictions, and sitting in the company of it’s intended brethren (the paragraphs before and after), Clyburn’s vision of extreme presidential license dissolves into nothingness like overly enlarged and pixilated print suddenly brought into focus so that it can be read and understood properly.
The provision in question, Section 4 of the 14th Amendment to the U.S. Constitution, reads as follows: “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.”
With the exception of three words, and the context of the entire 14th Amendment surrounding Section 4, Clyburn’s interpretation appears to be watertight, however, with the inclusion of the requirement that the public debt in question be “authorized by law” the bottom of his apparent watertight container falls out and we are drenched with his illogical cherry-picking of statements taken out of context. Furthermore, when the purloined Section 4 is placed back into the context of the entire 14th Amendment, the entire container, which we mistakenly considered watertight, evaporates like mist in a high wind and we are left standing there with nothing but the handle, and even that may not be a substantial as it seems.
Eight hundred and twenty-two days after the last shot of the Civil War was fired, South Carolina ratified the 14th Amendment to the Constitution and it became the law of the land. The 14th Amendment is considered one of the three Reconstruction Amendments in that the provisions it contains were written with the intent of rectifying the numerous problems associated with the American Civil War and the Southern State’s secession from the Union, and rebuilding the Union. The Amendment contains a number of provisions directly addressing the Confederacy and the leaders of the secessionist government. The citizenship provision of the 14th Amendment provides a broader definition of citizenship that anything that previously existed and specifically overruled the Supreme Court’s 1857 decision in the case, Dred Scott v. Sandford, which held that blacks could not be citizens of the United States. The Due Process provision of the 14th Amendment prohibited state and local governments from unfairly depriving persons of life, liberty, or property, and the Amendment’s Equal Protection Clause established that each state ensure equal protection under the law to all people within its jurisdiction. Section 4 of the 14th Amendment which has been called the “public debt clause,” confirmed the legitimacy of all United States public debt incurred as a result of the Civil War and legally appropriated by the U.S. Congress. It also established that the United States government would not be liable for any losses suffered as a result of freeing the slaves nor would the U.S. government be liable for debts incurred by the Confederacy. The express intention obvious in Section 4 of the 14th Amendment was to bring an end to all further debate regarding the financial obligations of the United States government directly attributed to the Civil War.
In the infinite wisdom of the U.S. Supreme Court, the 14th Amendment has risen from the ashes of the bloody rebellion which it attempted to correct, and like many good laws with predetermined intent, it has been applied to issues entirely foreign to the purposes of it’s authors, but that is another issue, and one best left for another time.
Were it not for the fact that the 14th Amendment was written specifically to correct the issues that arose from the Civil War, and a few other minor items that James Clyburn neglected to take into consideration, Obama might be able to wield the authority of a true dictator and make all of the unilateral decision he could ever dream of. If it weren’t for the pesky nature of having to put things into their proper context many things would be so easy. Section 4 states, “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,” and therein lies a formidable obstacle. Before a public debt can be considered valid according to this provision, it must be “authorized by law,” and before any debt can be considered “authorized by law” under the terms of Section 4 of the 14th Amendment, that debt must be incurred with the authorization of Congress because the U.S. Congress is the only branch of the American government constitutionally authorized to borrow money on the credit of the United States (see Section 8 – Powers of Congress). The Executive Branch of the United States government cannot arbitrarily and certainly not unilaterally make a decision to borrow money on the credit of the United States, and to do so would be a serious violation of the U.S. Constitution, to say nothing of a gross usurpation of congressional power. Even in his wildest authoritarian dreams, Obama cannot borrow didily-squat against the credit of this nation.
The idea that the President can do anything necessary to avoid defaulting on the national debt is ludicrous and without foundation. Even if, as some interpretations would have it, defaulting on the national debt is impermissible and by itself a violation of the constitution, the simple fact of the matter is that there is nothing in the U.S. Constitution, including the 14th Amendment suggesting that a President may, at his discretion, assume the authority of the legislature if he deems it necessary to prevent a violation of the Constitution. Where would the stopping point of such authority end? If Obama decided to eliminate the division of power that our system of government has been founded on, which is what it would take for him to unilaterally raise the debt ceiling, then he would also have the authority to unilaterally raise taxes, to print more money when he thought he needed it, or to sell off federal property as he saw fit. He could subdivide Yosemite National Park and raise taxes to pay for the construction of low-income housing for welfare addicted liberals who have supported him in the past, and he could do it all without ever bothering to mention anything to Congress because they would be even more irrelevant than they are today.
The argument that Barack Obama can unilaterally invoke the 14th Amendment’s public debt provision and raise the debt ceiling by presidential fiat lacks merit. However, if if, by some twisted interpretation of the language, he felt sufficiently justified in doing so there is a great deal of doubt that his action would resolve the problem because a huge black cloud of doubt would hang ominously over any bonds issued as a result of his action and potential investors would face the very likely possibility that the federal government might, at some point in the future, refuse to honor those debts as being legitimate. The risk associated with this fear could force investors to lose confidence and result in a steep increase in the interest rates, a catastrophic consequence that would rapidly accelerate the national debt and cost the American people billions of dollars.
This nation was founded on principles that function best through the mechanisms of free speech, access to credible information, and open debate. The most glaring failure of our current situation is an undeniable indication that, while the principles remain, the mechanism that forces them to mesh like the gears of a clock are not being applied. The role of our President is not to threaten the economic welfare of old people soldiers in the effort to say public opinion, and the role of Congress is not to set the President up for failure at the expense of the American people. In these efforts the offices of both are diminished and our image as a nation is made to suffer more than it is already suffering at the hands of our current leaders.
There is little doubt that in a reasonable society, and with legitimate leadership on both sides of the issue, this problem would not arise, and if it did, it would be easily resolved by honest debate and compromise. However, as societies go, we ceased to be reasonable many years ago and our elected representatives in Washington, the self-styled leaders of the two primary warring factions in this debate, represent not what is best for the American people they purportedly represent, but their own best interests, including, amongst many, what’s good for the party they are affiliated with, their odds of re-election and their ability to stack the deck in favor of their personal investment portfolio. In light of the burden these hidden agendas place on our elected representatives, is it any wonder that the American people are constantly on the losing side of every Washington equation? Solving the problem of the debt ceiling, the budget or any of the numerous actual and imagined crises makes exciting fodder for the political war being waged by the liberal news media against the conservative status quo, and the Democrats against the Republicans, but speaking strictly from a realistic point of view, none of it solves any of the real problems that are currently dragging this nation down into the gutter and the people along with it. As a distraction, it is certainly entertaining, but shouldn’t we, the American people, expect more from our government than entertaining drama? The truth would be a good place to start.
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