Then and Now: The Fourteenth Amendment

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.

Most 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.

32 thoughts on “Then and Now: The Fourteenth Amendment

  1. Jeff Davis July 28, 2011 / 12:41 pm

    Care to elucidate or speculate on the meaning of: “..shall not be questioned…”?

    • Brooks D. Simpson July 28, 2011 / 12:52 pm

      In context, it’s an assurance that no one would attempt to repudiate the debt and obligations incurred in prosecuting the war (greenbacks included, I’d say). As for a broader context, that’s why lawyers make the big money … debating the meaning of words as constructs.

      • Ned Baldwin July 28, 2011 / 6:11 pm

        I get what you are saying about looking back at intent, but sometimes the words by themselves should be able to stand on their own. Though I would like it if Obama could just stick it to the Republicans in Congress, I see nothing in the words of the amendment that give him any extra power to do that in this situation. Jeff wants elucidation of “shall not be questioned” – well to me its seems that the clause is clear: if the congress has authorized debt, its validity can not be questioned. We have existing authorized debt out there; by the 14th, it would be unconstitutional to waive, cancel or repudiate that existing debt. What that has to do with the debt ceiling is a mystery to me.

        Now that I have that off my chest, in addition to the Reconstruction origins of the clause, I wonder if the memory of the debt crisis of several states during 1839-1842 contributed to the intent of the writers of the clause.

  2. Ray O'Hara July 28, 2011 / 3:22 pm

    Clinton did lie, but the whole affair was so farcical it hurt those who pursued it more than Clinton.
    the real result of the Clinton witch hunt was what we saw in post 9/11 inquests and Plamegate,that was the President and everyone who works for the President refusing to testify under oath nor will they ever testify under oath again.
    Bush got away with it and thus precedent is established.

    While the 14th bit on debt seems very reassuring if you’re owed money. But it does not, as far as I see, give the President any extra powers to order Congress to pay up. {damn!}.

    current events do seem to be giving us an insight into the passions of the 1850s.
    We again have one faction refusing all attempts at compromise and by doing so hardening t the rest into a similar attitude.

  3. Jim Bales July 28, 2011 / 8:36 pm

    Prof. Simpson writes:
    “Recent 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).”

    Here are three relevant examples.

    1) Prof. Brad DeLong (an economist at UC Berkely, and former Deputy Assistant Secretary of the Treasury under the Clinton Administration) acknowledged the reconstruction origins of the clause in a blog post of July 1, 2011.

    2) DeLong does so by quoting from a blog post by Prof. Gerard N. Magliocca (of the Indiana University School of Law), which states:

    “This language was intended to protect Union debt incurred during the Civil War, but the language sweeps more broadly. In Perry v. United States, 294 U.S. 330, 354 (1935) the Supreme Court (in a plurality opinion by Chief Justice Hughes) said the following about this text:

    ‘While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. Nor can we perceive any reason for not considering the expression ‘the validity of the public debt’ as embracing whatever concerns the integrity of the public obligations.’ “

    3) On May 4, 2011, Garrett Epps, blogging at The Atlantic introduces the text of Sec. 4 and follows it immediately with:
    “This section was inserted into the Amendment because of a very real concern that Southern political leaders, and their Northern allies, would gain the upper hand in Congress in the 1866 or 1868 elections and vote to repudiate the national debt.”

    The next two paragraphs elaborate on the Reconstruction political climate.

    Also, while not acknowledging the Reconstruction origins of the 14th, it is interesting to note DeLong’s implied claim that the notion of applying Sec. 4 of the 14th to the debt ceiling came up in 1995/6 (during the Clinton Administration).

    I’d say that these are not posts by people on the fringe, but rather people of some subtantial experience (DeLong), expertise (DeLong and Magliocca), and/or audience (Epps, and possibly DeLong).

    Finally, given the language from Perry v. US. (written some 76 years ago) there appears to be long-established precedent that Sec. 4 applies outside of Civil War related debts.

    Jim Bales

    • Brooks D. Simpson July 28, 2011 / 8:54 pm

      On Perry v. US, see here.

      I wouldn’t say these are posts by people on the fringe, but I also don’t see where these arguments create a grant of executive authority. That has to be reached through extrapolating and interpreting.

      In the end, all these posts (sans Epps) point to Perry.

      • Jim Bales July 28, 2011 / 9:42 pm

        Prof. Simpson,

        I’m certainly not trying to claim the grant of executive authority, but did want to make clear that at least some of those who would invoke the 14th in the context of the debt ceiling have expressly acknowledged its origins (as per your request).

        Looking over the link to the syllabus on Perry v. US, and following the links therein to the full text of the decision, I’m not clear what you would have me pick up from the syllabus and decition.

        In particular, I don’t see anything in either the syllabus or decision that limits the scope of Sec. 4 to only the civil-war related debts. Am I missing something?

        BTW, the only other case I could find w.r.t. Sec 4 of the 14th involved Italian vessels disabled by their crews in US harbors in 1941, before the US entered WW II, (The case was in the US District court for Maryland.) In fn 2 the court wrote:

        [W]hen the government requisitioned the ships under the applicable statute providing for compensation, and at a time before this country was at war with Italy, the United States made a valid bargain and agreement with the owners of the ships that they would be compensated for the use of the ships or for their value if lost, and that both by the principles of the United States Constitution and the widely accepted principles of international law this promise of compensation made by the United States with persons then friends and not enemies, constituted valid obligations of the United States which cannot be repudiated under the 14th Amendment, Sec. 4, which declares ‘Validity of public debt of the United States * * * shall not be questioned’, and generally accepted principles of international law to the effect that even as a result of war the debts of a government to private person although enemies, are not to be confiscated. See Perry v. United States

        So, in 1941, based on the precedent of Perry, US courts considered the 14th Amendment to be binding on debts incurred in 1941.


        • Brooks D. Simpson July 28, 2011 / 11:45 pm

          I just wanted to highlight for everyone the findings in Perry as suggesting that the Supreme Court did say its understanding of Section Four went beyond its origins to hold it as a general principle. No debate there. The citations you helpfully presented (except for Epps) mentioned Perry, and indeed that decision has also escaped the notice of most (not all) public discussion and general commentators. I appreciate the citations. Nor do I understand you as making a claim on the issue of executive authority. Indeed, the best claim I can make there is one of national security, and that would be broadly defined.

      • Jeff Davis July 28, 2011 / 11:48 pm

        “3. Congress cannot use its power to regulate the value of money so as to invalidate the obligations which the Government has theretofore

        Page 294 U. S. 331

        issued in the exercise of the power to borrow money on the credit of the United States. Pp. 294 U. S. 350 et seq.”

        Well now. What about the President’s power to regulate the value of money by ordering the Treasury to print or removing from circulation paper money?

        I understand Treasury has printed off $6 Billion but has not yet released it into the economy. According to the citation above, such an infusion of currency into the economy would decrease the value of the debt we owe, thereby repudiating it. It seems to me this would be covered by the 4th Section of the 14th, and result in prohibiting the release of that freshly printed money.

  4. Jim Bales July 28, 2011 / 9:56 pm

    Also, to follow up on the question of “executive authority” and Sec 4 of the 14th, I’ll note DeLong’s post of July 28, in which he writes:

    Without the Fourteenth Amendment, Obama can obey the tax laws, the spending laws, and the debt limit law–by defaulting on the debt. With the Fourteenth Amendment, Obama cannot default on the debt: he has to choose one of the other options. And the settled legal principle is that later laws are deemed to repeal earlier ones if that is what is necessary to make things coherent.

    DeLong’s analysis of the situation is (as best I can tell) that it is mathematically impossible for the gov’t to simultaneously do the three things required by law to: Tax only as authorized, To spend as appropriated, and To stay under the debt limit. The role of the 14th (DeLong, I believe, is arguing) is simply to ensure that the quandry is not resolved by defaulting on a portion of the US dept,

    Jim Bales

    • Brooks D. Simpson July 28, 2011 / 11:54 pm

      I’m not sure how compelling DeLong’s argument is, either as a matter of law or politics. I don’t think Obama finds it compelling. I could also ask what would happen to Obama if he did so act (my answer is that, short of impeachment, any unilateral action would be tough to challenge, given the need to gain standing for a case), but that would drive us into present-day politics.

      The assumption many people have about historians is that their scholarship is driven by their politics, and the people who make that argument seem to be to be driven by their politics. Yet if one was to draw assumptions about my personal political views (as opposed to operating principles) given what I’ve offered above, they would probably say that a historian who questioned Obama’s authority to act unilaterally under the 14th Amendment and who said Clinton was impeachable was probably to the right of center. However, they night not draw that same conclusion given what I say about Section One, and, of course, in some corners I’m regarded as some neo-abolitionist Marxist PC Yankee, whereas all we know for sure is that I’m a Yankees fan.

    • Jeff Davis July 28, 2011 / 11:55 pm

      Why would it be impossible to do those things simultaneously? As immense as the problem is, there is still a bottom line.

      1. Don’t tax more than the law allows.
      2. Don’t spend more than is appropriated, and don’t appropriate more than you tax, and include debt repayment in what is appropriated..
      3. Don’t borrow past the ability to repay, and don’t borrow past the debt limit.
      4. Borrow only to cover unforeseen emergencies, and unforeseen shortfalls in revenue.

      Number two seems to be the Congressional downfall. A Balanced Budget Amendment would fix that.

      • Ray O'Hara July 29, 2011 / 7:53 am

        a balanced budget amendment could leave us in desperate straits should there be a major event/disaster.
        Neither Lincoln nor FDR would have had a prayer of solving their issues, like the Wars if they had to also balance the budget..
        The Rights sudden desire for a BBA is highly ironic seeing as it was the Republicans who repealed the Pay-Go law passed under Clinton,,repealing that law is what allowed the Bush Tax Cuts as they were budget negative.

      • Brooks D. Simpson July 29, 2011 / 10:08 am

        If Republicans in the House want a balanced budget, all they have to do is to pass one. To try to force the issue by exploiting the current situation suggests that proponents of the measure know it can’t otherwise survive the amendment process.

        Recent weeks have reminded everyone of the important of coalition-building in Congress, and illustrate anew the pendulum of legislation David Donald once highlighted in a book on voting patterns. Donald’s methodology smacked of pseudo-social science to hardcore quantifiers, but the main point (and a pattern Allan Bogue later described for Civil War Republicans) was finding out what was passable. The same concerns frame any study of Reconstruction legislation. Anyone who wonders why Republicans did not take more vigorous and comprehensive steps simply doesn’t understand how the political process works … and also doesn’t understand the markedly different notions of governmental power that then operated.

        That’s my effort to turn this back to historical analysis. I’ll make others.

    • James F. Epperson July 29, 2011 / 4:23 am

      Well, this particular clause of the 14th is certainly obscure! Or, it used to be.

      I’m in Ned’s shoes, in that I want Obama to stick it to the GOP, but I don’t see how this language allows him to do it.

      • Brooks D. Simpson July 29, 2011 / 10:09 am

        It’s not obscure to scholars of Reconstruction. And, of course, that’s not what the Reuters report said. To say that the entire 14th Amendment is obscure is a self-indicting statement about one’s level of knowledge (and that’s being generous).

    • Ray O'Hara July 29, 2011 / 8:07 am

      I find it interesting they added section 4 to the 14th, a regular law recognizing the debt could have easily handled any ACW debt. Instead they chose to make it permanent through the Amendment process. I find that bit interesting clearly they aimed high on debt and looked beyond just war debts recently incurred.

      The 14th is odd in that it addresses 3 seperate issues.
      Sec 1 and 2 the Citizenship issue and representation
      Sec 3 the quickly ignored anti-Confederate in Congress bit
      Sec 4, the Debt.

      I see the need for Sec 1 ,2 but 3 and 4 could have been dealt with in normal legislation

      • Brooks D. Simpson July 29, 2011 / 10:12 am

        The debates don’t confirm your analysis, Ray. The primary concern of the framers in terms of these clauses was to prevent a subsequent repudiation of the US war debt by an alliance of white southerners and northern Democrats. The other clauses are also Reconstruction-driven, and were placed in the form of an amendment so they could not be repealed easily … unlike legislation. Section Three was not ignored.

        • Jeff Davis July 29, 2011 / 11:16 am

          Wasn’t it the point of Section 4 to clarify that the US would not accept responsibility for debts incurred by the Confederate Government and make clear that the former Confederate states would essentially particpate in the repayment of the entire US Debt as would be their share [can not be questioned]?

          • Brooks D. Simpson July 29, 2011 / 11:34 am

            The second’s far more important than the first, although some southern states (hello, South Carolina) had inquired about compensation for slaves. The reputation of the CSA war debt was also a part of the Lincoln and Johnson proposals. But Section Four had several purposes, and it’s a good question as to whether the framers would see the current argument (which gets much support from the Perry decision) as a reflection of their intent.

            I would strongly argue that one of the characteristics we see in Reconstruction legislation is sloppy praising, which helped leaf to a search for loopholes by Andrew Johnson and paved the way for adverse Supreme Court decisions in the 1870s. So, while wording choices are deliberate, sometimes the legislative craftsmanship of Republican lawmakers was not what it could have been.

            Most scholarship on the Fourteenth Amendment addresses the intent of Section One.

    • Al Mackey July 29, 2011 / 9:43 am

      Well, it’s not the First Amendment or the Fifth Amendment. Ergo, it’s “obscure.” Why would a journalist care to know about any other amendments? 🙂

      • Brooks D. Simpson July 29, 2011 / 10:19 am

        Ah, yes, what passes for informed public discourse. That’s why people like Jonathan Turley get so much air time to display their own ignorance … because he can chat away with Keith and co. as an authority on law. The prime prerequisite for that status seems to be that you (a) teach at a DC-area university (Turley) (b) once talked about the OJ trial (Jeffrey Toobin, who is better than most, or Greta Van Susteren, for example) (c) are Alan Dershowitz (who also fits under [b], but never met a microphone he didn’t embrace, and was already a talking head in 1994).

  5. TF Smith July 29, 2011 / 8:29 am

    One could make the judgment that national security, in the truest sense, is at risk in the current situation – one could suggest that one wing of the GOP is endangering US supremacy in the world economy over an exercise that has been routine in postwar governance; one could even argue they are aiding and abetting the enemy.

    In a historical frame of reference, of course.

  6. Jeff Davis July 29, 2011 / 11:43 am

    Just curious, but do you think Johson was aware that those loopholes would lead to Supreme Court decisions? I would not have credited him with that much savvy. Or did he have advisors pointing the way. [Certainly at that point he knew the Radical Republicans were after him.]

    • Brooks D. Simpson July 29, 2011 / 11:48 am

      No, but he was very active when it came to obstructing the Reconstruction Acts, and that’s one reason there were four of them … because each one after the first closed a loophole exploited by Johnson and others. The Enforcement Acts (and their enforcement) proved more fertile ground for Supreme Court reversals, but that’s a different story.

  7. Jeff Davis July 29, 2011 / 12:08 pm

    Thank you.

  8. Terry Walbert July 29, 2011 / 12:26 pm

    Professor Simpson,

    Judicial activists read the Constitution the way W.C. Fields read the Bible (“looking for loopholes”). It’s dishonest whether conservative in the late 19th century regarding labor unions or liberal in inventing a novel definition of marriage in Massachusetts.

    I heard two good comments on historians and the Clinton impeachment. In late 1998 Forest McDonald told the House Judiciary Committee that historians were no more qualified to give advice on current events than well-informed plumbers or radiologists. Rush Limbaugh labeled the 400 historians who signed the letter “400 liberals.”

    • TF Smith July 29, 2011 / 1:44 pm

      And yet, Victor Davis Hanson was repeatedly quoted as an authority on current US policy toward postwar Southwest Asia, not that long ago…

      As are/have been the Kagans, Nial Ferguson, John Lewis Gaddis, etc…

    • Ray O'Hara July 29, 2011 / 4:19 pm

      There is nothing in the Constitution that addresses marriage or defines it in any manner at all.
      Article IV of the CONUS does require every state to recognize things like marriages, adoptions, driver’s licenses and the like of any other state so the only Constitutional issue is the violation of that Article by other states and by the Fed Govt DOMA.

  9. Ray O'Hara August 2, 2011 / 12:05 pm

    Watching Obama “negotiate” I’m remined of the funny story Grant told of himself about how when he was a boy and went to buy a horse he liked,Jesse gave him advice on how to bargain but young Liss didn’t quite understand the concept.
    The Administration negotiates like that. “I would like X for this much, but if that isn’t enough..”.

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