Section 4 Of The 14th Amendment (Update)

This is creating quite the buzz in connection with all the hoopla over the “debt ceiling”.

The otherwise obscure constitutional provision was enacted in the wake of the civil war, mentioned briefly in a Supreme Court opinion (US v. Perry, 294 US 330) in 1935 – which was a good year for Supreme Court opinions – and as far as I can tell never mentioned again in some published form in connection with any debate about the national debt by anyone on earth until this blog – yes, this blog – noted in passing six months ago that it would have to be repealed in order to accomplish the universal debt cancellation proposed in these pages (look at proposed section 9, further explained here) through the passage of a 28th amendment.

The New York Times, demonstrating once again that they are behind the curve in this and other matters, has finally gotten around to trotting out “experts” to parse this particular section and tell us what it all means.  It’s in the constitution, so evidently it is undecipherable without an expert opinion.  And I don’t mean to whine, but I chafe a little at the fact that somehow I am not seen as an expert on the section since I beat everyone to the punch as a matter of record.  But that’s a small point.  I digress.

I have said many times here that the law trumps economics.  But before the morons at the NY Times or in the academy or for that matter in the White House distort that idea beyond all recognition – having already largely stolen it – it’s probably important in this small corner of the universe to define terms.  And this is especially timely because I just got done trying to express the same idea in a comment in response to Rob’s comment in another post from yesterday, but this little bruhaha will round the point out nicely, I think.

It would be a profound misunderstanding of the term “law” to believe that you can simply pass a law that debts will be paid, or for that matter that they “shall not be questioned”, as section 4 of the 14th amendment does.  It is like passing a law to say that everyone will be prosperous, or everyone will be healthy.  You can pass such a law in form, of course, but it doesn’t make anyone healthy or prosperous, and only a crazy person thinks otherwise.

Obviously, when I say that the law trumps economics, then, that is not what I mean.  A good law, an effective law – a valid law, even – conforms to reality and does not try to override it.  Reality cannot be overridden, even by passing a law, or by the King’s command.  But this is the temptation of government, and power generally:  to dictate reality by fiat.

I’m not really sure what position is being taken by the Secretary of the Treasury or the President on this matter.  Something along the lines of the idea of a “debt ceiling” being unconstitutional because of Amendment 14, section 4; this seems a silly argument in view of, among other things, the provision that no money can be drawn from the treasury other than by appropriation made by law.

Nevertheless, this is an interesting impasse.  The powerful appear to be bumping up against the limits of their power.  Their instincts are all awry:  they labor under an unshakable belief that they can simply say it, or enact it, and it will be so.

But unpayable debt will not be paid, and no “law” can make it otherwise.

It’s too bad that in the minds of otherwise perceptive people this opinion may mark me as an “intemperate” lawyer with “…wild agendas molded from bizarre political beliefs”, but I rather think the bizarre political beliefs are emanating from Congress, the White House and the New York Times.  I don’t suffer from the delusion that I can wave a magic wand and make reality other than what it is, but apparently they do.

And as far as the “wild agendas” go, I’ve been accused of that every time I sought a not guilty verdict.  Agendas don’t get any wilder.  Proposing the 28th amendment is tame entertainment by comparison.  I should have thought that self described CDL’s would get that.

Update:  Evidently, the writers at the prestigious Roll Call should be reading this blog:

I’m not exaggerating for effect when I say never: It absolutely wasn’t mentioned. In fact, none of the federal budget experts whom I rely on for information, analysis and support — including many of the biggest and most esteemed names in the business — was even aware that the 14th Amendment was applicable in any way to what we do.

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4 Comments

Filed under financial crisis

4 responses to “Section 4 Of The 14th Amendment (Update)

  1. hcannon

    Interesting. But the fix is already in. They will continue borrowing as long as they can. Rates are heading up soon.

    • Some people think the whole debate is a sham, and it’s hard to blame them:

      http://www.foxbusiness.com/markets/2011/07/25/obama-to-banks-were-not-defaulting/

      Assuming this report is correct, what can such an assurance from the president mean? That even if the “debt ceiling” is not increased by the Congress, all the checks will still be issued? By Executive Order?

      Well, this is what some over at Fox Business News are suggesting, though Judge Napolitano doesn’t seem to agree:

      http://video.foxbusiness.com/v/1078143910001/can-obama-raise-the-debt-ceiling-alone?playlist_id=87060

      Judge Napolitano needs to read the US v. Perry opinion, though. According to the SCOTUS, section 4 of the 14th amendment isn’t limited to what it supposedly meant when it was passed. Here’s a portion:

      “The Fourteenth Amendment, in its fourth section, explicitly declares: ‘The validity of the public debt of the United States, authorized by law , … shall not be questioned.’ 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.”

      The whole opinion is worth a read given current developments.

      All I can say is that if Obama wants to take the position that as president he can keep the checks going by EO alone, he has plenty of cover from that opinion.

      • hcannon

        True. But he would have to sell Bonds to get the money. Who would buy them if they have a cloud over them? The full faith and credit of Barak Hussein Obama?. Maybe the Fed would buy some. Obama Bonds would not sell. Apple Computer now has more money than the Treasury. If anyone would be stupid enough to buy Obama Bonds I say good. Give us the free money.
        I do agree that the Debt Ceiling Charade going on in Washington has even less credibility than Global Warming. It is a contrived Hoax. Only a supposed Liberal Democrat President could get away with destroying social security. While handing the wealth of the nation to crooks.

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