The 14th Amendment might be a solution to the debt-ceiling but not the current crisis
How the 14th Amendment makes the debt-ceiling unconstitutional, and why Biden using it won't avoid crisis
In 1866, Following the abolition of slavery through the 13th Amendment, millions of now-free Black Americans were living in limbo. No longer classified as enslaved, but not recognized as citizens. The Radical Republican legislators in Congress knew that without citizenship, freed men and women would never be secured the rights they were endowed—so they got to work.
The product of their work was the 14th Amendment, ratified in 1868. This is when most ask “What does granting citizenship to formerly enslaved people have to do with the debt ceiling?” The 14th Amendment does a lot more than extend the criteria for citizenship. Divided into five sections, the amendment is one of the most consequential in the Constitution.
Section 1, gives citizenship to all “born or naturalized” in the United States. It also prohibits states from encroaching on citizens' constitutional rights (essentially applying the Bill of Rights to states.) Section 1 is fundamental to some of the most important case law of the 20th and 21st century including Brown v. Board of Education, Roe v. Wade, and Obergerfeld v. Hodges.
Section 2, discards the Three-Fifths Clause, and counts all citizens (except Native Americans) as equal for Congressional proportionment.
Section 3, says that anyone who rebelled against the United States cannot be elected to Congress or the Presidency.
Section 4 deals with debt. It says, in part, “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.”
Section 5 gives Congress the authority to make laws to ensure the enforcement and protection of the amendment's provisions.
While the Civil War ended in 1865, relations were still tense with the former rebels. The Republican-dominated Congress feared former confederates, if they regained power, would force the government to reject the debt incurred by the North during the war, and refuse to pay it back. To protect against this, Section 4 was included. The question today is whether the narrow original purpose for the section can be expanded to today's debt crisis.
Proponents say the amendment is clear, “The validity of the public debt of the United States, authorized by law…shall not be questioned.” The middle part, says “including debts incurred…for services in suppressing insurrection or rebellion,” not limited to.
Many legal scholars disagree, arguing the section had a specific purpose and does not apply to the debt ceiling, which was installed and has been upheld by Congress since World War I. By pointing to the 14th Amendment, President Biden would be saying that the debt-ceiling law is unconstitutional and ignore it (and then hope the courts agree.)
Last week Biden said, “I’m looking at the 14th Amendment as to whether or not we have the authority — I think we have the authority.” Following a similar clash in 2011, President Obama said, “I have talked to my lawyers, they are not persuaded that that is a winning argument.”
It will be catastrophic if President Biden and House Speaker Kevin McCarthy don’t come to an agreement before the United States defaults. Markets would tumble, jobs would be wiped out, and the future of the United States remaining the global economic hub would go dark.
The debt ceiling is a pointless political spectacle with severe consequences. If Republicans refuse to relent, and the ceiling isn't raised, the president has limited options, other than using the 14th Amendment. While the 14th Amendment might void the impractical (and unconstitutional) debt ceiling law, it won’t stop the crisis. The uncertainty of its legality would lead to most of the same ends that defaulting with no solution would.
The national debt is a problem, but the debt ceiling doesn’t help. Biden and McCarthy should raise the ceiling, on the condition they negotiate a lasting policy for managing the debt going forward—and maybe that means using the 14th Amendment to make it null.