Is It Unconstitutional for the Federal Government to Default on Its Debt?
Nope. Or at least, I have as much authority in saying that, as the bloggers and pundits who claim otherwise. Here’s what the relevant section from the Fourteenth Amendment says:
Section 4. 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.
Remember, the Fourtheenth Amendment was adopted in 1868 as part of Reconstruction. Here’s the context to help understand Section 4:
Section 4 confirmed the legitimacy of all U.S. public debt appropriated by the Congress. It also confirmed that neither the United States nor any state would pay for the loss of slaves or debts that had been incurred by the Confederacy. For example, during the Civil War several British and French banks had lent large sums of money to the Confederacy to support its war against the Union.
So when the 14th Amendment says the “validity of the public debt of the United States…shall not be questioned,” it means, for example, that people in South Carolina couldn’t object and say, “Hey, why the heck should South Carolina have to pay taxes to the federal government, in order to redeem bonds that were issued in order to kill our people? That’s crazy.”
The 14th Amendment is not saying, “If for some reason the federal government defaults on its outstanding bonds, this violates the Constitution.”
I mean think about it for a second: There could be an economic calamity making it impossible for the government to pay off its bondholders, regardless of political will. So how can that possibly be an unconstitutional outcome?
Also, I find it a little suspicious that most (not all) of the people I see bringing up the 14th Amendment on the debt ceiling, just about never mention the Constitution anywhere else in their writings. And they’re not even doing it as a mere accusation of hypocrisy against the Tea Party: No, I’ve seen bloggers who have no problem with the federal government regulating microwave “standby modes” but drape themselves in the Constitution when there’s a chance that something will interfere with the Treasury’s ability to go another trillion dollars deeper in debt.
(For the opposite view, go and read more in the Wikipedia article in that section, you’ll see some people–like Bruce Bartlett–being cited as authorities for why it may be unconstitutional to interfere with the issuing of Treasury debt. And there’s also the 1935 Supreme Court case of Perry vs. U.S. that, according to the Wikipedia article, says the Congress doesn’t have the authority to cancel a federal bond. But I think Bartlett is just plain wrong, in light of my arguments above, and I don’t see how the 1935 Supreme Court case is doing what the Wikipedia writer claims. But anyway, you don’t need Congress to declare an existing federal Treasury bond void in order for my position on the debt ceiling to go through.)
Agreed.
Also, “shall not be questioned” is pretty vague isn’t it? I mean, we have an even more definitive “shall not be infringed” in the second amendment which is infringed almost constantly. If assault-weapon bans are constitutional despite “shall not be infringed” then how does “shall not be questioned” mean that default is automatically unconstitutional.
Nobody in Congress is currently “questioning” the federal debt. They are just refusing to add more.
Since 98% of the debt was incurred to pay for things that were unconstitutional, how could it be constitutional to force the victims (the citizens) to pay for that portion in any event?
Bob Roddis: The victim-citizens were even forced to pay for the other 2% that supposedly is constitutional.
And the entire notion of a national debt itself has no legitimacy whatsoever, as neither you (I assume) nor I had voluntarily consented or contracted to have a debt made in our names.
See Lysander Spooner on the national debt:
http://fff.org/explore-freedom/article/tgif-spooner-national-debt/
I’m seriously suggesting that any attorney who does not follow the Judge Napolitano version of the US Constitution where the Feds have only 16 or 17 specifically delegated powers should be disbarred for violating their oath to support the Constitution.
http://bobroddis.blogspot.com/2013/09/dont-forget-socialist-workers-party-i.html
Obviously a Keynesian cannot “support the constitution” absent working to change it to allow funny money emissions.
The changing our form of government from a Republic to a Corporation in 1871 was unconstitutional and everything done under this Corporational Government is unconstitutional therefore the debt ran up by them only belongs to the Corporation. The solution is to “Tar and Feather” the Corporations officials and run them out of the country. The lawyers are also non-citizens as they violated Article 13, the original Article 13, the Article of Nobility. The lawyers need to be put on the same boat as they are very much complicit with the destruction of our Constitution and our government…. I see it as a simple, but monumental task to rid ourselves of this plague.
Simple is to Tar and Feather them and put them on a boat to England where the roots of this originated.
Monumental to undo all the harm that has been created by the criminal acts that have been perpetrated against us.
I’ve argued with my fellow liberals against the 14th amendment workaround, so I generally agree with this, but with two caveats. Like Matt M said, the text is incredible vague and it isn’t clear what questioning the validity of the debt or what shall not be questioned means, and like the Second Amendment, its the literal meaning of the text that matters, not the intended meaning of the text.
Aidan:
Good points. But regarding your last, the literal meaning as of today or circa 18th century? Big difference in some instances. Take, for example, the meaning of “militia.”
Nice to see the the Civil War is now accepted as an “insurrection or rebellion” and not a war of northern aggression.
Problem is that it says “including” debt incurred suppressing the rebellion. It is clearly not “limited to” debts incurred suppressing the rebellion.
Also, important to make clear that the 14th limits govt, not people. It limits what people can make govt do. So just as the people in the former slave states could not force their representatives to default on govt bonds used to raise money to fight the civil war, the former slave states can not now force their representatives to default on govt bonds used to pay for Obamacare. With the exception of Arkansas, the states refusing the Medicare expansion are all former slave states (part of the Confederacy).
I think you misunderstand Bob’s argument.. I didn’t think he was arguing that only defaulting on public debts incurred to suppress a rebellion or insurrection is unconstitutional. He is saying that the 14th Amendment says only that such debts are valid.
For example, say I decide to divorce my wife, but she refuses to allow it. To keep me around she hires a couple of ‘guards’ to prevent me from leaving. Then, she tells me I have to help her pay their bill. I say no way – that is not a valid contract and so I don’t have to pay it. But she is able to get the courts to uphold that divorcing her constitutes a rebellion or insurrection, and thus the contract she made with the guards is fully legal. Therefore, I am obligated to help her pay the bill as long as we are husband and wife.
That doesn’t mean defaulting on paying that bill would be ‘against the law’ (unconstitutional). It means I can’t say the contract she made with the guards is invalid and therefore I don’t have to pay it.
“Nice to see the the Civil War is now accepted as an “insurrection or rebellion” and not a war of northern aggression.”
Nice to see that you started with a non sequitur. What does this have to do with the constitutionality of debt default?
Regarding what you refer to simplistically as the “slave states” it’s interesting to note that slavery was legal in the Union states of Missouri, Kentucky, Delaware and Maryland throughout the war. Other Union states like New Jersey didn’t abolish slave owning until the 13th Amendment was ratified. This is why the Emancipation Proclamation only applied to the Confederate States and freed no slaves in the Union states where there was actual authority to do so.
Exactly what any of this has to do with Federal debt default is a mystery though. The Supreme Court has already ruled that The Federal Government cannot force states to implement the Medicaid expansion or state level exchanges. So, states that refuse to do so are well within their authority and cannot reasonably be accused of defaulting on any Federal debt or rebelling against Federal authority.
“With the exception of Arkansas, the states refusing the Medicare expansion are all former slave states (part of the Confederacy).”
You must mean the PPACA Medicaid expansion since Medicare is health insurance for retirees. Contrary to your claim many states outside the former Confederacy have refused the Medicaid expansion ( i.e. Alaska, Idaho, Nebraska, Kansas, Wyoming, Montana etc.) Your strange attempt to conflate resistance to PPACA implementation with slavery and insurrection seems thoroughly confused.
I agree with your points except for this one:
I mean think about it for a second: There could be an economic calamity making it impossible for the government to pay off its bondholders, regardless of political will. So how can that possibly be an unconstitutional outcome?
The fact that it could become (in a sense) impossible to pay debts doesn’t mean it’s an unconstitutional outcome: it just means that another “trump card” can supercede this obligation. There are many cases where one consitutional obligation contradicts another one; that doesn’t invalidate the (common-parlance) claim that reneging on either obligation would be unconstitutional. It simply means that the government must pick its poison.
In this case, the appropriate response might be that, to default on the debt would violate the constutition, but (in a particular circumstance) not defaulting would violate it in a more important way.
Do you have any doubt though that if the issue comes up in front of the Supreme Court that the default will be declared to be in violation of the constitution? Perhaps not through the fourteenth amendment, most likely not actually, but perhaps through other means? For example, the debt ceiling is declared to be in violation of the constitution and therefore a default for that reason was not possible.
Here is a good post on the legislative history of Section 4 of the 14th Amendment.
Seems to conclusively refute Murphy. Nice.
Silas:
I disagree, respectfully. As I see it, there are indeed instances in which one constitutional right is abrogated for the sake of prevailing interests, but never is the subordination of that right considered an unconstitutional act. The example the first comes to mind is the clichéd scenario of a person yelling “fire” in a crowded theatre (in the absence of a real fire, of course). Although not illegal per se, it can be treated as an illegal act if it leads to bodily harm. This represents an instance of the state’s police power trumping a first-amendment right for the sake of life safety. However, I doubt you will ever find this or any other example of the police power legitimately trumping other rights portrayed as unconstitutional. Maybe this is nothing more than a matter of semantics, but in the realm of constitutional law, semantics are everything.
People have a constitutional right to a speedy and fair trial.
People have a constitutional right to tell jurors why they think the evidence justifies one particular conclusion.
Courts have ruled that the former supercedes the latter. They’re still both constitutional rights, and yet violating either one in isolation can be considered “unconsitutional”, while a court rules that you have to take one of those poisons.
In your example, one could reasonably say, “gosh, the constitution clearly says I can convey my thoughts about the presence of fire”, and yet the government can still suppress it on grounds of *other* constitutional claims.
Silas:
I’m not following the first part. Not snark, just don’t follow.
As for your last: yes, one can convey one’s thoughts about the presence of a fire. But, in the eyes of the law, yelling “fire” as in my example above is not conveying one’s opinion about the presence of fire, it is instead seen as one wantonly endangering the lives of others. This kind of “speech” is not protected by the 1st amendment. So, presto, no violation of the constitution. You and i may think it is–we may think it is a squishy way to trump one right with the claim to another–but the law doesn’t see it that way.
My point is that, The fact that the speech is not protected by the first amendment, does not mean “there is no constitutional right to free speech”. It just means that other constitutional prerogatives override it.
I agree, but I think Bob was only making the point that the Amendment only says the debt is valid, but just because it is valid doesn’t mean you can’t default on it (i.e.you can’t default on it because it is not valid – but you can default on it for some other reason – because of an economic calamity, for instance).
But he was saying something more: that “hey, we might not even be able to do X” implies that X is not a consitutional guarantee.
I was saying that it doesn’t follow — that people could be right that the 14th amendment really does prohibit default, even if another constitutional prohibition is stronger.
Well, I guess I am not so sure he was implying that.
I think he was underlining his point – per the USC the debt is valid, but it doesn’t follow from that that it’s unconstitutional if it isn’t paid.
If he wasn’t using that to underline his argument – then then I agree with you.
What else do you think he meant by the part I quoted:
“There could be an economic calamity making it impossible for the government to pay off its bondholders, regardless of political will. So how can that possibly be an unconstitutional outcome?”
I don’t know if this helps or hurts, guys, but just to clarify: I was saying it’s dumb if you find yourself in a situation in which it’s impossible to not violate the Constitution.
So if Silas is saying, “No, you can find yourself violating the Constitution all the time, since it contradicts itself” then Silas brings up a good objection. But, then I think we have a bigger problem if the Constitution contradicts itself (not that I’m a Constitutionalist).
I wouldn’t say the constitution necessarily contradicts itself, but it does impose requirements that come into conflict. The fact that you can’t satisfy both requirements is still never a reason to say that the constitution doesn’t really require one of them.
The constitutional right to free speech is, and has always been, first a property right. I have the right to say what I want ON MY PROPERTY or with MY resources. I can’t say what I want in your living room, nor can I demand that you pay the costs of producing the medium through which I will speak.
In short, Chris Matthews can say what he likes, but he is constrained by his desire to be allowed on TV by MSNBC to get his messages out. And so on. Same thing with yelling “fire” in a theatre.
The validity if the debt shall not be questioned does not necessarily mean you are going to pay on time, but it does mean that the debt will never go away until it is paid. Holders of US debt will continue to be able to make their claims.
Anyhow, the House appears to have given Obama the money he wanted, unless someone has better info.
Good point, Tel. There is no requirement on timeliness. Also, I think Bob’s point that it is about the ability to charge the citizens is the primary issue.
First I still doubt that there can be a default. Technically to default you have to stop paying your debt, the portion of interest and repayment of debt is not that large, plus you can take still take out debt at the same levels as before and simply not add new debt. So again I suppose I fail to see anything ‘wrong’ with going over the spending limit except you HAVE to cut spending…
But hey maybe I simply cannot see it, if anyone here can actually explain HOW the USA could default please let me know…
The government should be barred from borrowing any money at all.
There is no justification in A robbing from B to pay C.
Well, I am fine for allowing up to say 10% of GDP to be borrowed in times of peace and 25% in times of war, but that all debts have to be paid back quickly. No more 10+ year terms. The reason for allowing a small debt ceiling is so that you can smooth out revenue inflows ( the same reason it is wise to have one in business )
If you support 10% GDP debt, what is the premise for rejecting 11%? Or 12%?
Seems arbitrary…
It is arbitrary. I am saying some Government debt is okay to smooth out revenue ‘bumps’ however the revenue bump where you go into debt to the tune of 10% per year is probably not a good one. I am suggesting that you place a ‘Reasonable’ cap on deficit. Whether that is 5% or 20% is up to us to create but I think you would agree that 75% of GDP is pushing the envelope…
“It is arbitrary.”
So why not an arbitrary 100%, or 500%?
So that it remains manageable.
So it’s not arbitrary.
Also, it doesn’t specify WHO isn’t allowed to question.
“Validity” is a condition. Something can be valid, or invalid.
Let’s say that, by unanimous vote of both houses of Congress AND a sign-off from the President, all existing US debt is declared invalid. Some holder of US debt attempts to take the government to court to recover their damages. Supreme Court says, “Sorry, the constitution clearly says the validity of the debt shall not be questioned, the government ruled it invalid, and you are now questioning that. You lose.”
Yes it does, the edict applies equally to everyone, as is the usual case with laws that are not otherwise constrained.
But who really decides whether debt is valid or not?
The federal government.
Ergo, if the federal government ruled that all, or a certain part of the debt wasn’t valid (perhaps they come up with some silly excuse for it, perhaps not…), then the 14th amendment can easily be invoked to declare that nobody is allowed to question that decision.
Honestly, it might be one of the most vague and useless sentences in the entire constitution. “Shall not be questioned” means precisely nothing. I’m questioning it right now, and nobody has thrown me in jail *yet*
Matt M
“Nobody in Congress is currently “questioning” the federal debt. They are just refusing to add more.”
Horse****
You are totally off with this one Murphy.
REMEMBER THE DEBT CEILING IS A RETROACTIVE ABSURDITY that threatens default on things that CONGRESS has already authorized. Its not like a balanced budget amendment. And since the Treasury cannot effectively prioritize, because their computer systems are geared a certain way, the debt ceiling violates the constitution.
As for the Civil War context, its meaning has grown. A judge in 1935 I believe said that.
And anyway, the President has emergency powers. If Boehner hadn’t blinked and this deal hadn’t gone through, and Obama had invoked the 14th, and Congress had sued him and tried to impeach him, and EVEN if Roberts had decided to break longstanding tradition and interfere with conflicts between the executive and the legislative, if the polls were in favor of Obama invoking the 14th, (presumably the President would have waited until Monday or Tuesday after several 1000 point drops in the stock market, thus the Presidents action would have averted a national panic) Obama could pull and Andrew Jackson and say: Chief Justice Roberts has made his decision, now let HIM ENFORCE IT!
“REMEMBER THE DEBT CEILING IS A RETROACTIVE ABSURDITY that threatens default on things that CONGRESS has already authorized”
Nice equivocation on the word “default.” Default is actually related to debt, not spending.
If Congress reneges on their spending promises, they are not “defaulting”.
Only if they cease paying interest on debt, will they “default.”
And it is absurd to claim that not raising the debt ceiling is in any way similar or overlapping of debt default.
“And anyway, the President has emergency powers.”
That is what gives you statists endless joy, doesn’t it?
I love the folks equivocating freezing the debt limit with default. How sad is it to say that the only way we can pay back what we’ve previously borrowed is to borrow more? When any prudent lender hears a borrower say that, he runs for the hills. That lenders haven’t done so already speaks to just how uneconomic the current financial arrangement really is.
Prudent private lenders cannot print money and get paid back by experiencing an increased purchasing power at other’s expense.
I’d be guessing that computer configuration is subservient to constitutional law, rather than the other way around. Get the healthcare.gov team working on the Treasury computers… should clarify our priorities quite nicely, and maybe even resolve the whole issue of government debt.
Yep. This is a technical problem or a process problem but not a constitutional problem..
“because their computer systems are geared a certain way”
If that is really the case, then I find this to be utterly pathetic and laughable…
There is not one company on earth that isn’t able to prioritize payments…
On the other hand if you think how well Healthcare.gov works, it might not be that surprising.
Of course they can prioritize spending. Theyare just unwilling to do so, which is a different thing. They were able to furlough thousands of employees without pay, weren’t they? I think hiding behind “faulty computer systems” is utter horse****. It’s all a big game, and the sheeple all buy into it. The outcome of all this was fixed from the beginning.
And regarding Edward’s absurd “congress authorized all this spending” comment, just because congress passes a law and the prez signs it, it doesn’t oblige congress to fund it. First, there has to be a budget (initiated and passed by congress, signed by prez) and then the money has to be appropriated, again through congress. And just because something is “in the budget”, doesn’t mean it will actually be appropriated. Anyway, that’s how it supposed to work. I know that’s not how it actually works, which is why we’re printing Bennybucks like drunken sailors. Ron Paul proved that it’s quite easy to cut $1T of spending out of the budget without touching defense ( and bythat I mean true defense, not all the war appropriations and whatnot) and the so called social safety net. So why can’t they cut a lousy $500b, which represents only 15% of the $3.6T. Compared to private business, who operate under much greater revenue uncertainty, the congress people have it made. They can reliably predict how much “revenue” they will have, so it’s just a matter of dividing the spoils of their annual theft. And when you think about, that’s really the only thing they are REQUIRED to do, creating a lousy budget. However, they can’t even bring themselves to do that. It’s all so utterly pathetic, watching all this reminds me of high school.
I don’t see how the amendment can be used to justify [i]adding[/i] to the debt, since only Congress can authorize spending.
I find it amusing that the press keeps saying how we are being humiliated in the eyes of the international community (as if this is over the top compared to their actions). Do these people ever read foreign news? Have they forgotten the whole EU debt circus? How long did that drag on? Overriding democracy to appoint leaders to member countries. Forcing repetitive votes until the populace voted for reform proposals. Forcing bond holders to take a haircut – wasn’t that essentially a EU default, since it was orchestrated jointly?
Ken P
(Bangs head against proverbial wall)
Congress already authorized the friggin spending!
They can UNauthorize it numbnuts!
You are simply incorrect, Edward. A continuing resolution is required precisely because things have not been “authorized”.
The Antideficiency Act states, “…it shall not be lawful for any department of the government to expend in any one fiscal year any sum in excess of appropriations made by Congress for that fiscal year, or to involve the government in any contract for the future payment of money in excess of such appropriations.” IN fact, it is due to this act that government shutdowns occur when congress fails to create a budget or pass a continuing resolution.
One can argue that some congressional acts have pre-authorized spending, but that is only SOME spending not ALL spending.
Some things are called MANDATORY spending, jackass!
Well, it hasn’t authorized more borrowing.
Yes, and other things are called DISCRETIONARY spending:
http://consultingbyrpm.com/blog/2013/10/krugman-on-treasury-default-57-of-the-budget-isnt-that-much.html
Edward,
Nothing is “mandatory”, if you hold the purse strings (and the guns). Yes, there may be contractual obligations (holders of US treasuries may think that, and Social Security recpients may think that, and they would all be wrong), but contracts can be broken, just like oaths to uphold the constitution. If all 50 states decide tomorrow to secede from the union, it will effectively end all “mandatory” spending. Not sure where you get the notion that congress authorized any spending, unless you think this is implied when congress passes a law. And even if they did, there are other hurdles that must be crossed before the executive branch can spend a dime. The money has to be appropriated, for one.
And regarding issuance of additional debt, it seems to me that if congress passes an unbalanced budget, it would explicitly imply that the authorization to issue additional debt equal to the budget deficit has to be part of the package. That’s why it’s expected that we have an annual spectacle of budget negotiations between fiscal conservatives and spendthrift progressives (note that I’m not saying Republicans/Democrats, because you’ll find both categories in both parties). And I believe standing up against tax and/or spending increases and for a balanced budget is each and every congressman’s right, just like advocating for more wars and government mandated healthcare, or whatever. Or is that just too logical?
Doesn’t mean it is ACTUALLY “mandatory.”
True, but not ALL spending is MANDATORY and if you only look at mandatory, no new debt is incurred.
Unrelated but there is a great Econtalk this week about privatizing roads and airports. I didn’t know that there’s actually a history of those things being private before the government used economic downturns as excuses to take them over.
http://www.econtalk.org/archives/2013/10/winston_on_tran.html
BMurph wrote “Also, I find it a little suspicious that most (not all) of the people I see bringing up the 14th Amendment on the debt ceiling, just about never mention the Constitution anywhere else in their writings.”
These people worship government spending of any kind, not paying the debt would be a reduction of spending.
These hypocrites will twist and ignore all parts of the constitution to the contrary…
The Perry v US case is one of the “Gold Clause Cases” after the evil FDR confiscated everyone’s gold. I have not reviewed these cases in years. I believe the theory of the decisions was that the government always wins and the people always lose. Michael Rozeff reviewed the cases here:
http://www.scribd.com/doc/31548347/The-U-S-Constitution-and-Money-Part-10-The-Gold-Seizure-Court-Cases
A Future of Freedom Foundation paper on the Gold Clause cases states:
The gold-clause cases did reach the Supreme Court. Unfortunately, a majority of the Court declared the nullification of the gold clauses in private contracts to be a constitutional exercise of the president’s power. While it declared the nullification of gold clauses in government notes to be unconstitutional, the Court also held, in a twisted form of logic, that the holders of government debt had suffered no damage because gold was then illegal to own anyway.
The entire paper as a pdf file is here:
http://tinyurl.com/lde8
You can see why such a court opinion would be for a statist like dropping a big piece of steak fat on the floor near a big dog.
I think the position of the statists in these matters is that attempting to control government debt and spending is always evil and unconstitutional. The government is never allowed to default on its debt, except that it can always pay back the debt with diluted funny money because no one has a moral or constitutional right to be paid back anything other than diluted funny money. And as we well know, the government can never run out of funny money.