As the days turn into weeks, the US shutdown edges no closer to being resolved. Polls consistently show that the public believe the Republican Party shoulders most of the blame for the chaos and the threat of default. Moderate Republicans join the growing chorus of disapproval of the shutdown and takeover by a small fringe group of well funded Tea Party Senators and House members. But it isn’t just the public, Democrats, the President, the courts, and moderate Republicans who blame the Tea Party faction for the shutdown, the Tea Party doesn’t seem to have the Constitution on its side either.
The Constitution of the United States is a work of genius. Largely influenced by James Madison’s brilliance for applying enlightenment philosophy to practical politics, and moderating the thoughts of Jefferson (who wished for the Constitution and all laws to be replaced every ‘generation’; 35 years) and the ideas of Hamilton (who pushed for a President elected for life); the Constitution ensures the minority cannot and should not be allowed to dictate policy on threat of economic or political catastrophe. The delegates to the Constitutional convention knew that the Constitution must be adaptable to the progress of US society beyond their own lifetime, and so amendments were the answer. The Founding generation – though they knew the threat loomed heavily – could not have accounted for the Constitutional issues that would arise when a Civil War eventually proved the biggest threat to the Union. One of which, was the debt.
The Fourteenth Amendment is one of those Constitutional Amendments that isn’t ambiguous. There isn’t much room for discussion or debate over its legitimate meaning. 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.”
– The validity of public debt shall not be questioned. The Amendment was passed in 1868, as a result of political wrangling in a Congress worried that the public debt would be used as a weapon by southern States for reconstruction concessions in social and economic spheres of influence. The 14th Amendment put a stop to that threat. The South reacted bitterly to all of the 14th’s provisions (including section 4), refusing to ratify it. They wished to use the threat of the debt, to force the US government to bend to their will, despite losing an election, and a war. The South was eventually forced to sign up, with threat of exclusion from representation in the United States Congress, if they refused. The 14th Amendment was an attempt to prevent the minority – and those who lose elections – from seeking to rule on their own terms. And it worked, until today.
It would appear with the threat of default looming on the horizon, the Republican Party has decided that the wording of the 14th is not clear enough, choosing instead to openly and proudly use the public debt as a weapon to extract concessions that they didn’t manage to win through the electoral process. It took over 140 years, but we cannot be under any illusion; as they move further to the right, the Republicans have spent the past few years channelling the spirit of the Confederacy when it comes to voter suppression, when it comes to subtle hints at secession upon the election of a candidate they didn’t like, and now in seeking to use the debt ceiling as a way to defund and delay an established, Constitutional law.
On the validity of the 14th Amendment, Chief Justice Charles Evans Hughes wrote in 1935:
“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. 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.”
– It is all embracing. It isn’t questionable. It should not be used as a tool for partisan point scoring.
Section 5 of the 14th Amendment tells us exactly which branch of government is in charge of ensuring the 14th Amendment is carried through:
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
– It is Congress’s job to ensure that the validity of the public debt of the United States is not questioned. The historical context of the Amendment is such, that the Amendment was specifically designed to prevent the threat of default unless concessions are met. This isn’t new money the President is asking for, it is money already spent, debts already incurred. It is House Republicans refusing to pay the bills unless they get what they want. And whilst Speaker Boehner is right in that the debt ceiling has been used by both parties as a bargaining chip before, it has never been used to threaten closure of government and default on debts.
The President has no power to invoke the 14th Amendment to unilaterally incur and pay the US’s debts. The constitutional crisis caused by such a move by the President, may well prove to be more damaging than the threat of default itself. The President has been clear; the 14th Amendment does not allow him the power to raise the debt ceiling himself.
To this end, the Republicans know just how dangerous the course they have chosen is. This isn’t a negotiation. This is a threat of force. In 2011 Standard & Poor’s Credit Rating Agency issued the following statement:
“Since we revised the outlook on our ‘AAA’ long-term rating to negative from stable on April 18, 2011, the political debate about the U.S.’ fiscal stance and the related issue of the U.S. government debt ceiling has, in our view, only become more entangled. Despite months of negotiations, the two sides remain at odds on fundamental fiscal policy issues. Consequently, we believe there is an increasing risk of a substantial policy stalemate enduring beyond any near-term agreement to raise the debt ceiling. As a consequence, we now believe that we could lower our ratings on the U.S. within three months.”
– They are quite clear. The debt itself is not what will lead ratings agencies to lower the US’s Credit Rating. It is the politics of the debt ceiling and continued threat of political instability. This instability is driven by a small group of highly financed Republicans, distrusted and disliked not just by the American people and the Democrat Party, but also by their own colleagues. Whilst this is true, the instability is also the product of a lack of clarity on just which branch of government is responsible for ensuring payment of public debt, and if it is constitutional to use the payment of the public debt as political leverage. It is quite clear that the Republicans are using that lack of clarity for political posturing and to circumnavigate the democratic process that didn’t go the way they wanted. If this isn’t the use of force to extract concessions and hinder the stability of Constitutional, democratic government, the entire economy, and the will of the people in the United States, I don’t know what is. In theory, a law exists to deal with that threat:
18 USC Chapter 115 – TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES:
“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
– There are several reasons here why I would argue that the Republicans in Congress have already openly played loose with this law. Firstly, the use of the tactic of closing down the government, by attempting to hinder, and delay the execution of the Affordable Care Act – a law passed by Congress, signed by the President, and upheld by the Supreme Court. Secondly, by attempting to prevent, hinder, or delay the payment of debts that the 14th Amendment insists shall not be questioned, and shall be enforced by Congress. And thirdly, the word “conspire” is key, especially given the months of planning that this shutdown has seemingly involved. The legal framework of the United States has been completely disregarded by a very small fringe right-winged movement that cannot abide elections that they did not win, and constitutional laws that they do not like.
Whether or not the Republican Party has broken, or cleverly maneuvered its way around Federal laws, is up for debate. The period of reconstruction attempted to set straight the Southern treat of using the debt as a bargaining chip, with the 14th Amendment. Today that democratic idea is being challenged by the children of the Confederacy. Reason dictates that if a small band of fringe Congressional representatives are able to close down the government, threaten economic disaster, unless a concession is made to defund or delay a law that the American people largely voted on in 2012, that was passed by Congress, signed by the President, and upheld by the Judiciary – all three branches of government – then something is seriously wrong with a democratic framework that allows for such a vicious tactic.