If Bam's and the Democrats' practices do not constitute a violation of section
Date: Friday, July 29 @ 09:39:17 MST
Topic: Manual of the Constitution
New Page 1
Original Meaning of Section Four of the Fourteenth Amendment
If Bam's and the Democrats' practices do not constitute
a violation of section 4, then the section is practically meaningless
An account of the legislative history and original purposes
of Section 4 of the Fourteenth Amendment, the Public Debt Clause
Three useful questions;
 First, why should we pay attention to Senator Wade's speech [when the
14th amendment was being debated before its passage], which explains the
purposes behind section 4, when his proposal was not the final version?
 Second, given that the language of section 4 changed through the various
proposals, how should we understand these differences in interpreting the Public
Debt Clause today?
 Third, there is a legal difference between repudiating debt and merely
defaulting on debt. So why shouldn't we read the Public Debt Clause quite
narrowly to prohibit only direct repudiation of debt, instead of mere defaults
or threats to default? Under that interpretation, nothing the contemporary
Republicans are doing would fall within the prohibitions of the Clause.
These questions answered in turn;
I. Why Ben Wade Matters
Senator Wade's speech explained the key purposes behind the guarantee of the
federal debt in section 4.
Wade argued that the purpose of his proposal, which ultimately became
Section 4, was to prevent the validity of the public debt from being used as a
tool of partisan struggle and partisan revenge:
"every man who has property
in the public funds will feel safer when he sees that the national debt is
withdrawn from the power of a Congress to repudiate it and placed under the
guardianship of the Constitution than he would feel if it were left at loose
ends and subject to the varying majorities which may arise in Congress."
Those that dismisses Senator Wade's speech as just the views of "a
single senator" about a proposal with quite different language from the
final version [revisionists (politically correct revisionist history and the US
Marxist propaganda media organs). Revisionists [political-correctness police and
those that use the gag of political correctness] makes it sound as if Wade
just was some random Senator who offered a proposal that was shot down and a
better one put in its place.
But Ben Wade was not just any senator. He was a key Republican leader during
this period-- the leader of the Radical Republicans, in fact-- and was soon to
be elected President pro tempore of the
Senate. This was not merely an honorary title, as it is today. It made him, in
effect, the Vice-President in waiting. (Because of Lincoln's assassination,
there was no Vice-President-- the Twenty Fifth Amendment would not be ratified
for a century). Thus, everyone understood that the effect of convicting Andrew
Johnson was to make Ben Wade President.
Thus, Wade's proposal, and the reasons he gave for it, mattered a lot to the
people he was speaking to. Moreover, what he said in his speech, and the reasons
he gave in his speech, were not at all idiosyncratic [a way of behaving or thinking peculiar to an individual];
they reflected what the Committee of Fifteen discovered in the hearings it held
leading up to the drafting of the Fourteenth Amendment. Testimony suggested that
once the ex-rebels returned to power, they would try to avoid paying the federal
debt and attempt to get the government to pay the Confederate debt. See Benjamin
Kendrick, Journal of the Joint Committee of Fifteen on Reconstruction at 282-85;
see also Garrett Epps, The Undiscovered Country: Northern Views Of The Defeated
South And The Political Background Of The Fourteenth Amendment, 13 Temp. Pol.
& Civ. Rts. L. Rev. 411, 419-21 (2004).
Thus, when Wade spoke, he was
speaking as the leader of the Radical faction, and not simply as some
nondescript back-bencher. In dismissing Wade's remarks, Revisionists
invokes Neo-Marsist Justice Scalia's distaste for legislative history. Yet it is
commonplace in originalist studies of the Fourteenth Amendment--and indeed of
the Founding--to pay careful attention to who is proposing what, and what
happens to these proposals. Given that Section 4 was Ben Wade's idea, Revisionist's
dismissal of Wade's comments would be a little like saying that statements of
James Madison's about early drafts of the Bill of Rights in the First Congress
were just the comments of "a single Congressman" that didn't make it
into the final versions. Of course we wouldn't say that, because we know
Madison's importance to the process. We would, however, pay attention to
differences in language between earlier versions and later ones, and the ways in
which Madison didn't always get what he wanted. On this point we can all agree.
II. How should we understand the changes in language between the different
versions of section 4?
Revisionists are altogether too dismissive of Wade's proposal as evidence of
the purposes of section 4: he speaks of the Senate "rejecting" Wade's
proposal in favor of Howard's. This misunderstands what was going on in the 39th
The idea of protecting Union debt in the Fourteenth Amendment was Wade's
idea. And the Senate never rejected Wade's proposal, because it was never put to
an up or down vote, as other proposals put forward by backbenchers and opponents
of the Amendment were. Howard was the
floor manager of the bill in the Senate. It was his job to consult with
everyone, including especially the Republican leadership. Howard accepted Wade's
ideas, discussed them with other Republican leaders, and reshaped them into the
official proposal that was later put before the Senate, and subsequently
modified by Clark. For the same reason, it's not an accident that Senator
Clark, the Chairman of the Claims Committee in the 39th Congress, makes the
final adjustments to the language. As Chairman of the Claims Committee, this was
his special area of expertise.
There are several important differences between Wade's original version,
Howard's and Clark's, but these differences do not alter the basic structural
principle that justified the protection of Union debt-- the genuine fear of what
the ex-rebels in the Democratic Party would do once they returned to power. We
see a similar concern in several other places in the debates over the Fourteenth
Amendment; one of the most famous is in the objections to John Bingham's early
draft of Section One in the House of Representatives. Representative Hotchkiss
argued that Bingham's draft, which simply bestowed new powers on Congress, gave
blacks insufficient projection from a future Congress controlled by former
rebels. Rather than simply allowing Congress to pass civil rights laws, the
Amendment should lock in protection for the freedmen that Democrats could not
alter, and it should have a judicially enforceable guarantee of civil rights.
Indeed, one of the most important features of the political context that led
to the Fourteenth Amendment is that Southern Representatives and Senators were
excluded from the deliberations so that Republicans could achieve the necessary
supermajorities for passage. Everyone in
these debates well understood that once Southern Democrats reentered Congress,
they would have revenge on their minds and this concern appears repeatedly in
the debates over the Fourteenth Amendment.
Revisionist's statement that
"the Senate did not intend to alter the degree of legal protection that the
public debt previously enjoyed but was not of one mind regarding what that
protection was" does not take this history seriously. The whole point of
section 4 was that Republicans understood that existing protections for the
public debt were not sufficient and needed new constitutional safeguards. That
is why new language was put in the Constitution in the first place.
It is no accident that Senator Hendricks, an opponent of the amendment,
blithely (and somewhat disingenuously) suggests that the status quo is just fine
and that ordinary political process will take care of any problems with the
public debt. The Republicans clearly did not agree. The whole point of the
Fourteenth Amendment was not to preserve the status quo; it was to entrench
certain results in the Constitution. As historians of the period have pointed
out, the Fourteenth Amendment was an armistice imposed on the defeated South
designed to prevent the Slave Power from reasserting itself.
Revisionist also misreads
[misrepresent] the legislative record, which leads him to misunderstand the
exchange between Senators Clark and Johnson. On June 8th, Clark brings up
for a vote a proposal he had previously made to strike out the entirety of the
fourth and fifth sections of the amendment (Howard's version) and replace them
with a single section, which will become the final version of section 4; he
further wishes to strike one word (the word "forever") in his
proposal, because he believes it is superfluous. The Secretary then reads out
loud the language that will be substituted for the fourth and fifth sections.
At this point, Senator Johnson says "I do not understand that this
changes at all the effect of the fourth and fifth sections. The result is the
same." Clark agrees: "The result is the same."
Revisionist claims that Johnson and
Clark are referring only to the removal of the single word "forever"
from Clark's final proposal. This is incorrect. After the Secretary reads the
whole of Clark's proposed substitute, Johnson says that this language is not
different in effect from the fourth and fifth sections which have just been
replaced. Here is the page in Congressional Globe, so you can read it for
The record says that the Senators did not appear to believe that there was a
big difference between the three proposals. Revisionist claim that there
is a difference between Wade's and Clark's proposals and there are indeed
differences. But Johnson and Clark (who
wrote the proposal) state that the effect of *Howard's* version and *Clark's*
version is pretty much the same.
So let us compare the two proposals:
"The obligations of the United States, incurred in suppressing
insurrection, or in defense of the Union, or for payment of bounties or pensions
incident thereto, shall remain inviolable." (Howard)
"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." (Clark)
Note at the outset that there *is* one important difference: Clark's final
version is broader then Howard's proposal, because it is not restricted by
subject matter as Howard's is. In this respect, the final version is actually is
closer in scope to Wade's original proposal.
Revisionist argue that there is a big difference between saying that debt
shall be inviolable and that its validity shall not be questioned. One can see
why revisionists might think so. Unfortunately for Revisionists, the author of
the final language, Clark, seems to disagree.
Similarly, Revisionist argues that there is an important difference between
protecting "the debt of the United States" and protecting "[t]he
obligations of the United States." Once again, it can certainly be
understood why Revisionists might believe this, but once again, the actual
author of the version doesn't think the difference is all that great. And
remember, Clark is the Chairman of the Claims Committee in the 39th Congress, so
he would have particular expertise in this area.
Now one reason why Clark may not have focused on the difference between
"debt" and "obligation" is that the terms were not strongly
differentiated in 1866. (Michael Abramowicz makes a similar point in his article
on the Public Debt Clause just published on SSRN). Why might that be? Well, the
federal government does a lot more now than it did in 1866; it maintains a vast
welfare state with many contractors and it performs many different sorts of
social services. Making a sharper distinction between "debts"
and "obligations" might make more sense today. Note, by the way that
if you look at Wade's original proposal, you'll see a similar slide between the
two concepts of "debt" and "obligation": Wade's proposal
protects "The public debt of the United States, including all debts or
III. Does Section 4 protect only against repudiation of debt, or does it
also protect against defaults and threats of defaults?
Revisionist's most important
contribution is pointing out that there is a difference between *repudiation* of
a debt obligation and *defaulting* on a debt or obligation. (And, it
might added, there is also a difference between actually defaulting and
threatening to default.)
Roughly speaking, to repudiate a debt means that you state that you are not
going to pay it and that you don't owe the money. Defaulting on a debt means
that you aren't able to perform, but you still acknowledge that you owe the
Much of the language in the debates speaks about repudiating the public debt
(or obligations). Why should we think that the framers were at all concerned
with merely defaulting (or threatening to default) on public debt? As
you read Revisionists, they are saying that merely defaulting on government
debt, or merely threatening to default on government debt should not be
understood as "questioning" the validity of the public debt as long as
the debt is not formally repudiated.
This reading is artificially narrow. It is inconsistent with the political
context that produced Section 4, because it would not give the Republicans the
sort of assurances they needed. We should interpret section 4 so that it solved
the political problems that the Republicans wanted to solve. If our proposed
interpretation does not solve those problems, it is very likely that we have
picked the wrong reading.
The debates in the Congress clearly say that the central purpose of section
4 was to prevent the Democrats, once they regained political power, from
repudiating the Union debt-- including pensions and bounties. Jed
Rubenfeld's language, this was the "paradigm case" of what Section 4
prohibited. But what if the Democrats did not officially repudiate the Union
debt but but merely chose (or threatened) not to repay it?
Imagine that the Democrats regained
power in 1874 (In fact, they won the House that year and almost won the
Presidency in 1876.) The economy had gone into free fall in the Panic of 1873,
which was one reason why the Democrats rebounded politically.
Now imagine that the Democrats do not officially repudiate the Union war
debt. They agree that these debts are legally valid. Nevertheless, they argue,
the economy is in a bad way, and something must be done about the enormous waste
and fraud involved in Union pensions, bounties, and defense expenditures, or to
use a modern expression-- the exploding "entitlements" created by the
former tax-and-spend Republican government. Therefore, they deliberately
appropriate less than is necessary to pay the debts as they come due, and they
prevent the government from issuing new debt to help pay off existing
The Democrats then and now are
careful to stop short of officially repudiating these debts. They do not say
that they will never pay them. Instead, they argue that in the middle of a
recession, the government simply does not have enough money to pay its debts to
Union pensioners and widows, and fiscal prudence counsels against allowing
Congress to raise additional monies to do so.
Of course, the Democrats say, they would be willing to consider changing
their minds, but only if the Republicans agree to repeal the Civil Rights Acts
of 1866, 1870, and 1871 and remove federal troops from the South (the latter
actually occurred as a result of the Compromise of 1877, which smoothed over the
disputed election of 1876.). The Republicans respond that this is blackmail, and
that the ex-rebels [democrats then and
now as well as BAM] are
threatening to crash the economy in order to win concessions on civil
rights and Reconstruction. The Democrats respond that they are only being
fiscally prudent, that the costs of Reconstruction are bankrupting the country,
and besides, they have never said they would actually repudiate the federal
debt. They are just putting it off for awhile until the country gets on its
financial feet, or the Republicans change their minds about Reconstruction.
Under this set of facts, would section 4 be violated? Revisionist seems to
suggest that it would not be, because all the Democrats are doing is threatening
default and they are not repudiating federal debt.
This is very sort of thing that the
Republicans were worried about. They feared that the Democrats would use a
future economic crisis over the debt to wring political concessions. The
Republicans believed that the ex-rebels [today's neo-marxists] and their
sympathizers would someday return to power, and they wanted to prevent them from
making payment of the public debt into a weapon of political threat and
reprisal. If these practices would not constitute a violation of section
4, then the section is practically meaningless.
There is much more to say about how to interpret section 4, and whether it
is judicially enforceable. But that is a subject for another day.