[“The validity of the public debt of the United States,” the
14th Amendment declares, “shall not be questioned.” If
Congressional Republicans violate this, President Biden, acting along,
should do as the Constitution requires.]
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THE CONSTITUTION HAS A 155-YEAR-OLD ANSWER TO THE DEBT CEILING  
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Eric Foner
January 23, 2023
New York Times
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_ “The validity of the public debt of the United States,” the
14th Amendment declares, “shall not be questioned.” If
Congressional Republicans violate this, President Biden, acting along,
should do as the Constitution requires. _

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The 14th Amendment, added to the Constitution in the wake of the Civil
War, has been back in the news of late, mostly because the Supreme
Court has taken aim at past decisions, notably Roe v. Wade, that
employed it to protect Americans’ liberties. The amendment remains
the most significant addition to the Constitution since the adoption
of the Bill of Rights. Its magnificent first section established the
principle of birthright citizenship and prohibited the states from
denying to any person the equal protection of the laws, laying the
foundation for many of the rights Americans prize.

Long-forgotten provisions of the 14th Amendment are suddenly crying
out for enforcement. Section 2 provides for a reduction in the number
of representatives allocated to states that deny the right to vote to
any “male citizens.” (Today this penalty would apply to the
disenfranchisement of women as well.) Even at the height of the Jim
Crow era, when millions of African Americans were prevented from
voting, this penalty was never imposed. But with many states seriously
limiting voting rights, its time may have come.

Section 3 bars from public office anyone who took an oath to support
the Constitution and subsequently participated in or encouraged
“insurrection.” The events of Jan. 6, 2021, have focused new
attention
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this stipulation, which could be applied to participants in the
uprising who previously held military, political, or judicial
positions, including former President Donald Trump.

Then there is Section 4, which offers a way out of the current impasse
over increasing the debt ceiling. “The validity of the public debt
of the United States,” it declares, “shall not be questioned.”

What were those who wrote, debated and ratified this provision trying
to accomplish? The section arose from political conflicts over the way
the Civil War had been financed. To pay the war’s enormous cost,
Congress printed legal tender paper money (the “greenbacks”),
raised taxes to unprecedented heights and authorized the sale of
hundreds of millions of dollars in interest-bearing bonds.

Nearly all the laws authorizing the issuance of bonds specified that
the government would redeem the notes in gold. The one exception was
the act related to the “five-twenties,” bonds redeemable in five
years and payable in 20, which was silent on how those who had lent
money to the government by purchasing these bonds would be repaid.

This oversight, to quote the historian Irwin Unger, led directly to
“a decade of intense and exasperating conflict.” Democrats sought
to score political points by demanding that the five-twenties be
repaid in paper money (which had deteriorated considerably in value),
not gold. It would constitute an enormous unearned windfall, they
insisted, for banks and large investors who had purchased these bonds
with greenbacks to receive gold back from the government.

“Who has asked us to change the Constitution for the benefit of the
bondholders?” Senator Thomas Hendricks of Indiana asked when the
amendment was being debated. “Why give them this extraordinary
guarantee?”

Republicans pointed out that much of the benefit of payment in gold
would be enjoyed by ordinary Americans, who had purchased them from a
small army of agents deployed by the financier Jay Cooke. They
insisted that the sanctity of the national debt was as much a moral
legacy of the Civil War as Emancipation itself.

The idea of paying the five-twenties in greenbacks was closely
identified with “Gentleman George” Pendleton, the scion of a
prominent Virginia family and the Democratic Party’s
vice-presidential candidate in 1864, who hoped to ride it all the way
to the White House. What came to be called the Pendleton Plan made its
way into the Democrats’ national platform of 1868 over the strenuous
objections not only of Republicans but also of Democrats tied to Wall
Street, like the financier August Belmont, the Rothschild banking
family’s representative in the United States, who naturally
preferred to be paid in gold rather than paper money.

Section 4 was the Republicans’ response. While the language is
certainly infelicitous (surely Congress could have found better
wording than declaring it illegal to “question” the validity of
the national debt), the historical context makes its purpose clear.

In the Reconstruction Acts of 1867, Congress began the nation’s
first large experiment in interracial democracy, granting the right to
vote to African American men in all the former Confederate states
except Tennessee. This propelled Republicans to control of governments
throughout the South. But Republicans feared that at some future time,
former Confederates might return to power there. Their congressional
representatives might join Northern Democrats in repudiating all or
part of the national debt while honoring the Confederate one (this
latter possibility was explicitly prohibited by Section 4).

The nation needed to be made “safe from the domination of
traitors,” declared Representative James Ashley, Republican of Ohio,
“safe from repudiation.” The 14th Amendment would help accomplish
these goals. Whatever one thinks of Civil War-era fiscal policy, the
amendment’s language is mandatory, not permissive — the validity
of the public debt “shall not be questioned.” Today, over a
century and a half after the amendment’s ratification, this promise
is no longer considered an “extraordinary guarantee”; it is an
essential attribute of a modern economy.

Our Constitution is not self-enforcing. The 14th Amendment concludes
by empowering Congress to carry out its provisions. But if the current
House of Representatives abdicates this responsibility, throwing the
nation into default by refusing to raise the debt limit, President
Biden should act on his own
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taking steps to ensure that the federal government meets its financial
obligations, as the Constitution requires.

_Eric Foner is an emeritus professor of history at Columbia and the
author, most recently, of “The Second Founding
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War and Reconstruction Remade the Constitution.”_

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* Debt Ceiling
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* 14th amendment
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* Eric Foner
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