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A Humble Opinion Concerning the 14th Amendment

In Response to

 

“Legality of ‘Fourteenth amendment solution’ comes under fire”

by Alicia M. Cohn and Daniel Strauss  – 07/10/11 05:47 AM ET

The Hill Magazine Blog

 

I read this article with some interest and great trepidation.

 

While I have always been a firm believer in a centralized government as espoused by Alexander Hamilton, I am also a firm believer in the Separation of Powers of the 3 branches of government.

 

I also understood the understated logic of the outline of the US Constitution.[1]

 

I apologize if I am preaching to the choir, but let me simply say, while all branches are full and equal they are designated as below:

 

Article 1: Enumerated Powers of Congress

Article 2: Enumerated Powers of the Executive

Article 3: Enumerated Powers of the Judiciary

 

Of course, there are other subsequent Articles, The Bill of Rights (the first 10 Amendments) and subsequent Amendments that became necessary as our country grew – socially, economically and politically.

 

I do not deny the efficacy of the subsequent Amendments; however, I believe that as there are so few of them and the Constitution imposed significant hurdles to have them ratified nationally, they must be taken quite literally and seriously.

 

These Amendments were written by lawyers and argued by politicians of the day deep in the heat of the issues of the day.

 

The 14th Amendment was a result of a resolution to a 4-year war that caused the insurrection of our young nation.  It overturned an economy built since the first settlers arrived in Jamestown, VA in 1607.

 

So, how does the abolition of slavery relate to raising the Debt Limit in 2011?

 

Apparently, according to the Democratic leadership and those in the White House, a great deal. 

Read your US Constitution:

Article 1 Section 7 (Revenue Bills, Legislative Process, Presidential Veto) 

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Article 1 Section 8 (Powers Of Congress)

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; (emphasis added)

To borrow money on the credit of the United States;   (emphasis added) 

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; …

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures; …

14th Amendment  4th point (with which you – and other wrong-minded individuals claim the President has the authority to supersede Congressional Authority derived from the 1st Article of the Constitution – see above) and 5th point in full:

 Amendment 14 – Citizenship Rights. Ratified 7/9/1868.

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.

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. (emphasis added)

To wit:

In any case,

 ” The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” (14 Amendment Point 5)

Nowhere in the Constitution or the Amendments does it state that the President has the authority to supersede Congressional authority.[2]

On July 8, none other than Dr. Lawrence Tribe of Harvard Law School proposed the following in an Op-Ed piece in The New York Times:

 

Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might provide a silver bullet. This provision states that “the validity of the public debt of the United States, authorized by law … shall not be questioned.” They argue that the public debt clause is sufficient to nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling.

 

Both approaches provide the false hope of a legal answer that obviates the need for a real solution.

 

The Supreme Court has addressed the public debt clause only once, in 1935, in the case of Perry v. United States. The court observed only that the clause confirmed the “fundamental principle” that Congress may not “alter or destroy” debts already incurred.

 

Some have argued that this principle prohibits any government action that “jeopardizes” the validity of the public debt. By increasing the risk of default, they contend, any debt ceiling automatically violates the public debt clause.

           

This argument goes too far. It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default. Moreover, the argument is self-defeating. If it were correct, the absence of a debt ceiling could likewise be attacked as unconstitutional — after all, the greater the nation’s debt, the greater the difficulty of repaying it, and the higher the probability of default.

 

Other proponents of a constitutional deus ex machina have offered a more modest interpretation of the public debt clause, under which only actual default (as opposed to any action that merely increases the risk of default) is impermissible. This interpretation makes more sense. But advocates of the constitutional solution err in their next step: arguing that, because default would be unconstitutional, President Obama may violate the statutory debt ceiling to prevent it.

 

The Constitution grants only Congress — not the president — the power “to borrow money on the credit of the United States.” Nothing in the 14th Amendment or in any other constitutional provision suggests that the president may usurp legislative power to prevent a violation of the Constitution. Moreover, it is well established that the president’s power drops to what Justice Robert H. Jackson called its “lowest ebb” when exercised against the express will of Congress. (emphasis added)

 

Worse, the argument that the president may do whatever is necessary to avoid default has no logical stopping point. In theory, Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?  (emphasis added)

 

Dr. Tribe concludes:

 

A core function of the Constitution is to “force us into a conversation” about our future, Mr. Obama once wrote.  (emphasis added)  Sometimes, it does this by establishing principles citizens can invoke when they believe the government has overreached. At other times, it does so by directing us back to the political drawing board.

 

It is this second message the Constitution is sending at this moment. As Justice John Marshall Harlan II presciently warned, “the Constitution is not a panacea for every blot upon the public welfare.” Only political courage and compromise, coupled with adherence to traditions that call upon Congress to fulfill its unique constitutional duty, can avert an impending crisis.

 

Dr. Tribe’s opinion piece (in the New York Times, no less) sent the White House and the Treasury Department backpedalling.

 

The Treasury Department General Counsel responded shortly after (on July 8, nonetheless) in a Letter to the Editor of The New York Times:

 

To the Editor:

 

Contrary to Professor Laurence Tribe’s assertion (Op-Ed, July 8), Secretary Geithner has never argued that the 14th Amendment to the U.S. Constitution allows the President to disregard the statutory debt limit.  As Professor Tribe notes, the Constitution explicitly places the borrowing authority with Congress, not the President.

 

The Secretary has cited the 14th Amendment’s command that “[t]he validity of the public debt of the United States… shall not be questioned” in support of his strong conviction that Congress has an obligation to ensure we are able to honor the obligations of the United States.  Like every previous Secretary of the Treasury who has confronted the question, Secretary Geithner has always viewed the debt limit as a binding legal constraint that can only be raised by Congress.  (emphasis added)

Sincerely,

George W. Madison

General Counsel

 

Whether that is true or not true, we will never know.

 

Can it be, as we approach the midnight hour, so similar to that faced by President Kennedy in October 1962, that the President tries an “end-around” ?

 

During the Cuban Missile Crisis, President Kennedy concluded in his famous television address to the American people:

 

My fellow citizens, let no one doubt that this is a difficult and dangerous effort on which we have set out.  No one can foresee precisely what course it will take or what costs or casualties will be incurred.  Many months of sacrifice and self-discipline lie ahead-months in which both our patience and our will be tested, months in which many threats and denunciations will keep us aware of our dangers.  But the greatest danger of all would be to do nothing.

 

The path we have chosen for the present is full of hazards, as all paths are; but it is the one most consistent with our character and courage as a nation and our commitments around the world.  The cost of freedom is always high-but Americans have always paid it.  And one path we shall never choose, and that is the path of surrender or submission.  (emphasis added)

 

Our goal is not the victory of might but the vindication of right …God willing, that goal will be achieved.

Much like Kennedy in 1960, a young, boundless Senator who was initially maligned for being different – Kennedy – Catholic, Obama with a Kenyan father, bounded onto the political stage in 2008, adrift in a tidal wave of good will from a young electorate desperate for a change.

 

Yet, isn’t it sad to think that the Presidential Candidate who filled us full of rhetoric preaching “Hope and Change” in 2008, much like his predecessor from 1960, has led us toward a teetering abyss?

 

What would Oprah think?


[1] For a complete review of the US Constitution, also see:

Article 4: The Enumerated Protections of the States by the Federal Government.

Article 5: The process by which amendments may be proposed to the Constitution.

Article 6: 

  1. The Debt Provision such that all Debts entered into prior to the ratification of the Constitution shall be valid under this Constitution;
  2. All treaties and laws made by Federal Government shall be the supreme law of the land;
  3. All Public Officials shall swear an oath to uphold the Constitution, but no religious test shall be given to holding office.

Article 7: Ratification Process whereby 9 of 13 “states” must approve Constitution for it to go into effect.

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