When I first became seriously interested in the study of Reconstruction policy at the national level I quickly learned that I had to do a lot of reading about constitutional and legal history. I quickly discovered that there was a rich literature about the Fourteenth Amendment and the intent of the framers and ratifiers of that amendment. That debate was sparked in large part by debates over how the amendment should be interpreted and applied to various situations. Sometimes people read back into the past what they wanted to read to justify present-day positions; this is usually the case when people try to discover intent.
I take a different approach. As soon as I see some clause of the Constitution invoked for this or that, I simply go back to the framing of the clause in question and make what sense I can of original meaning and intent without looking at subsequent application (that comes later). I do this knowing full well that the concept of “original intent” is itself something of an artificial construct, and it’s problematic. But I do find that it’s reasonable to look at prior usage and context. The results sometimes gets me in hot water with some people. At the time of Bill Clinton’s impeachment, many scholars claimed that Clinton’s perjury (yes, I know, some of you will say alleged perjury) did not rise to the level of a “high crime and misdemeanor.” I was amused that several of my colleagues at ASU signed the petition, many implicitly claiming an expertise in this matter I did not know they possessed.
Much depended on what exactly one meant by “high crime and misdemeanor.” Well, I thought, had any of those words been used before? Why, yes … in the Articles of Confederation, which mentions “treason, felony, or other high misdemeanor.” Well, folks, perjury is defined as a felony under federal law. I concluded that Clinton was indeed impeachable (indictable) under the wording of the clause. Other historians were not pleased by this, but then their own performance was criticized at the time and in retrospect. As for me, the question before me, as I saw it, was not whether I thought Clinton should be impeached (or what motivated those who sought either to impeach him or to derail impeachment) but simply whether a charge of perjury was grounds for impeachment.
So now we turn to the Fourteenth Amendment, where two clauses have received a lot of attention recently. First is Section One, which reads as follows:
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.
The first sentence of Section One has received a lot of attention during the debate over illegal emigration to the United States. The primary purpose of that clause was to make former slaves citizens of the United States, thus enabling the federal government to extend to them some legal protections. However, policymakers at the time were also aware of debates over immigration, including illegal immigrants voting in elections (here the finger was usually pointed at Irish immigrants who tended to vote Democratic, especially if they were Catholic). Immigration issues would also be part of the discussion of the Fifteenth Amendment (in that case Chinese immigration was an issue in the West). So we can’t say that issues of illegal immigration were not on the minds of the farmers and ratifiers, yet the language adopted is rather broad (although it recognizes a dual citizenship as well ….are citizens of the United States and of the State wherein they reside). Given the constitutional conservatism of many of the framers of the amendment, it is interesting that they did not narrow their definition explicitly to cover the situation so often asserted in the debate over this issue: that of immigrants traveling the the United States to have their children in the United States and thus claim citizenship for said child.
That issue of interpretation has received a lot of attention over the past several years; now joining it is an application of another section of the same amendment to the current controversy over the debt ceiling debate. Section Four of the Fourteenth Amendment 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.
The roots of this amendment should also be evident. It involves securing the sanctity of the public debt and obligations incurred by the United States in suppressing an insurrection, while forbidding public repayment of debts incurred by the Confederacy or in support of the Confederacy, as well as any public compensation for the loss of slaves (and one could argue that the last cause extends that principle to private as well as public repayment, because all such debts, obligations and claims shall be held illegal and void, making attempts to secure compensation or repayment impossible under law).
This clause is all about the Civil War, folks. However, the wording of the first sentence opens the argument that the amendment empowers something else, although exactly what that is remains unclear and contested. Indeed, the repudiation of Confederate war debts and compensation for slavery had been part of previous Reconstruction initiatives undertaken by the executive branch, and some white southerners had resisted them, either seeking ways to repay Confederate debts or looking for compensation for slaves. The framers also looked to make sure that the debt and obligations incurred in saving the Union would not be subject to repudiation by any subsequent Congress or anyone else.
Rrecent discussions about this section have ripped it out of context, for I have seen nothing about the Reconstruction origins of the clause (if you have, please share in the comments section [Jim Bales has done just that: see below]). I am not sure that a claim to executive autonomy based upon a reading of this clause would survive judicial scrutiny, although it might under citing this clause in conjunction with an equally broad reading of the necessary and proper clause (which appears in Article One, outlining matters related to Congress … sound familiar, scholars of the suspension of habeas corpus?). Since the “necessary and proper clause” has to do with law making, however, I doubt a claim of executive power would prevail there, either … although I’ll recall that it was not so long ago that it was the Bush administration that was making broad and sweeping claims for executive power, and I could see an argument to raise the debt ceiling as a way to protect national security creating difficulties for critics who once justified much using that same justification).
It should be an interesting weekend … and interested parties might take this discussion, do more research, and see where that takes them. Just try to do that research with the intention of finding out what was intended and what happened, not because you want to justify a present position, but because you want to learn some history. Otherwise, you’re just a cherry-picking poor excuse for a reseacher, and you know what I think of that. Let’s make the discussion historical and not hysterical.
And if you think you can read into this my personal political beliefs, go ahead … make my day.