Introduction

​​When many analyze civil rights in the United States, they refer to the 14th Amendment. As a reconstruction era amendment, there is an integrality in understanding civil rights as being upheld through the public debt clause of Section 4 and Section 5 of the 14th Amendment. For example, there is an inseparability in discussing civil liberties without the necessary public debt that is associated with them. From disability benefits and welfare to overall the structure of our government, ensuring that public debts are paid is of utmost importance. This is not to assume the stereotypes surrounding marginalized communities receiving supplemental benefits are true (i.e., one ought to call out the “welfare queen” trope for its blatant racism). However, one must analyze the material structures that benefit communities in relation to civil liberties. Historical legacies of racism, sexism, ableism, etc. crafted the conditions for certain populations to receive additional help from the government and not giving people their deserved share is a threat to civil liberties.

Many legal scholars often argue that the “Constitution is a floor, not a ceiling.” This argument is ironic as the prevalent “debt ceiling” dictates how the government functions (and whether it can function). Since the inception of the United States, debt has played an important role. The total approximate debt that culminated from the American Revolutionary war was upwards of 2.7 billion dollars (in today’s dollars)[1]; this debt has continued to increase and is above 30 trillion dollars.[2]

The federal debt ceiling can be understood as the maximum total amount of money that the United States can borrow to fulfill its various roles— defense spending, public entitlement programs, national debt, and so on.[3] This note makes no effort to normatively argue where the United States ought to be spending its money. Rather, this note examines the conflict that arises between the executive branch and the legislative branch when the debt ceiling reaches its limit.

Our country flirted with the notion of invoking the 14th Amendment when President Barack Obama was in office as a response to the failure of not raising the debt ceiling. Failure to raise the debt ceiling results in a serious question: can the president successfully fund public entitlement programs that pertain to civil rights? The answer to this question is a resounding no. If the debt ceiling has been reached, there can be no money spent to enforce laws. This puts the president in a paradoxical position: either the laws cannot be “faithfully executed”[4] by the president, subjecting the president to impeachment, or the president must unilaterally act to override Congress’ ‘power of the purse.’

Luckily, an agreement was reached through the Budget Reconciliation Act of 2011 – the Obama Administration did not take legal action. However, the White House issued a statement that stated invoking the 14th Amendment would be a losing battle.[5] Recently, mainstream media has discussed what routes the Biden administration should take if the debt ceiling is not raised.[6] This note attempts to answer a slew of questions regarding the failure of raising the debt ceiling. If the president cannot fulfill the role of what constitutes being a president, are they subject to violating the Constitution? And on what grounds? Would Congress be violating the Constitution by not allowing the president to fulfill their obligation(s)? And what are these fundamental obligations propagated by the government?

A nuanced understanding of Section Four of the 14th Amendment is lacking due to the lack of judicial analysis on the matter. Section Four and Section Five of the 14th Amendment are important in understanding the issues that arise by failing to raise the debt ceiling.[7]

It is evident that the establishment of the debt ceiling is constitutional. However, it would be unconstitutional for Congress to not raise that ceiling to cover “public debt.” As public debts of the United States “shall not be questioned” for the purpose of suppressing insurrections and rebellions, this note argues that failure to pay public debts would result in a failure to suppress insurrections and rebellions. If Congress fails to raise the debt ceiling, they would not have passed “appropriate legislation” to enforce Section Four of the 14th Amendment. However, if Congress believes that certain public debts ought not be funded, they can, at any time, pass a law whereby certain public debts are no longer covered by the federal government.

Ideally, this note strongly advocates for the legislative and executive branches cooperating. However, as branches are often in tension, this note finds that the only rational solution (albeit imperfect) would be the president unilaterally invoking the 14th Amendment to prevent the government from defaulting. These solutions are the only ways to safeguard against this paradox of the presidency.

Language

This Note disagrees with legal scholars who interpret “public debt” as solely being a question of bondholders. Rather, this Note interprets “public debt” as dealing with all governmental obligations – specifically public entitlement programs. Solely viewing “public debt” in the context of bondholders is erroneous considering: the true definition of “public debt”, “public debt” in relation to Section Four, “public debt” in relation to Section Five, “public debt” as a term of art, and case law that has dealt with Section Four.

Prior to analyzing “public debt”, the word “validity” arises first in Section Four. According to legal scholars, “valid” is defined as: “firm; good in law; sound.”[8] Another definition of “valid” is “legally sufficient.”[9] These definitions serve to interpret “valid” as existing outside of a futural implication. To put simply, “the validity of the public debt” indicates debts occurred in the present moment. Another word that proves this point is “incurred” found in Section Four which is past tense. This indicates that previous agreed upon debts – debts that must be paid now – are the fundamental focus. Thus, all governmental obligations that were previously agreed upon debts must be upheld.

These debts do not just refer to bondholders. The word “including” in Section Four is useful because it indicates the inclusion of bondholders to the term “public debt”, but does not exclusively refer to bondholders. Although there may be ambiguity to the term “public debt”, the Framers wrote Section Four as “public debt” was an obvious term but needed to clarify that it included bondholders.

When these debts are acquired by Congress, one cannot “question” these debts until payment is made upon these debts. The phrase “authorized by the law” noted in Section Five indicates that these public debts are authorized by Congress. As Congress authorizes monetary governmental obligations such as national debt, military spending, entitlement programs, and so on, these ought to be included in the definition of “public debt.”

“Public debt” must be defined as all governmental obligations and for the purposes of this Note, public entitlement programs. The term “public debt” can be interpreted in two ways: defining “public” and “debt” separately and “public debt” as a term of art – both of which will be examined here to prove that “public debt” entails all government obligations.

First, “public” has been defined in many ways, but one important definition comes from John Bouvier, a French-American lexicographer well-known for creating what is popularly seen as the first legal dictionary based on American law. He crafted his Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union in 1839. In this dictionary, “public” was defined as “the whole body politic, or all the citizens of the state.” Bovier continues to write, “[‘Public’] is sometimes joined to other terms to designate those things which have a relation to the public; as, a public officer, a public road, a public passage, a public house” … a public debt.[10] If “public” encompasses the entire “body politic,” then that would indicate the entire body politics’ debt i.e. what the body politic (Congress) chose their debt to be.

Secondly, Bouvier’s definition of “debt” in Law Dictionary Adapted to the Constitution and Laws and Laws of the United States of America and of the Several States of the American Union published is defined as a sum of money due by certain and express agreement.”[11] As Congress has the ‘power of the purse,’ this definition is uncontested in terms of debt acquired by Congress - the term of art “public debt,” however, is contested.

Although one may be content with defining “public” and “debt” as separate words, “public debt” is a term of art that serves a separate purpose than “public” and “debt” writ large. Legal precision is important even though it may appear as semantics. For example, the term of art “private infrastructure” must be defined together. If we were to define “infrastructure” alone, public infrastructure would be included.

As a term of art, “public debt” was most used in the late 1820’s and early 1830’s.[12] Bouvier’s Law Dictionary Adapted to the Constitution and Laws and Laws of the United States of America and of the Several States of the American Union published does not define “public debt” as a term of art in its original version. However, Bouvier’s law dictionary has been revised multiple times. Because the 14th Amendment was written in 1866, utilizing the 1856 revised version of Bouvier’s dictionary would be best served for our purposes as the definition comes closest to what the Founders intended – and it comes closest in terms of the revision date. In the 1856 dictionary, “public debt” was defined as “that which is due or owing by the government.”[13] In the explanation, Bouvier states:

“The constitution of the United States provides, art. 6, s. 1, that ‘all debts contracted or engagements entered into, before the adoption of this constitution, shall be as valid against the United States under this constitution, as under the confederation.’ It has invariably been the policy since the Revolution, to do justice to the creditors of the government. The public debt has sometimes been swelled to a large amount, and at other times it has been reduced to almost nothing.”

Black’s Law dictionary defines “public debt” as “terms generally applied to national or state obligations and dues, and would rarely, if ever, be construed to include town debts or obligations; nor would the term “public revenue” ordinarily be applied to funds arising from town taxes. Morgan v. Cree, 46 Vt. 773, 14 Am. Rep. 640.”[14] It is integral to note that “public debt” refers to state obligations as expressed in Black’s Law Dictionary. During times of war, it is a question of national obligations, thus proving that “public debt” encompasses a broad range of obligations both at the national and state level.

Although many in the early to mid 1800s were writing about “public debt” in the context of war, “public debt” was synonymous with “national debt” writ large. In the book The Public Debt and the Public Credit of the United States, published in 1864, “public debt” is synonymous with how Alexander Hamilton describes “national debt.”[15] Hamilton says that "in countries in which the national debt is properly funded… it answers most of the purposes of money. Transfers of stock on public debt are then equivalent to payments in specie; or, in other words, stock in the principal transactions of business passes current as specie." This quote not only demonstrates individuals defining “public debt” as “national debt,” but indicates that national debt must be funded properly.

This Note does not argue that these obligations cannot be taken away. On the contrary, it is constitutional for Congress to stop the funding of social security and funding of any public entitlement program(s) – if they pass a law. However, prior to passing legislation stating that public entitlement programs ought not be funded, these programs must remain a public debt. 

Historical Context

To properly interpret the Constitution, one must first understand the historical context in which it was written. Section Four of the 14th Amendment isolates the term of art “public debt” which serves of importance here. This section is deemed as the Public Debt Clause. As one can deduce, the Public Debt Clause has historically been of little significance to the judicial world. When Ruth Bader Ginsberg was asked about Section Four of the 14th Amendment, she declined to comment entirely.[16] Very few cases have referred to this clause and there is an overall lack of literature on it.[17] As previously mentioned, 2011 marked the first time where the Public Debt Clause truly became part of mainstream discussion.

The 14th Amendment was passed in Congress on June 13th, 1866, and ratified July 9th, 1868. Many individuals were questioning the government’s stability and how to successfully re-incorporate Southerners back into legal institutions. After the North won the Civil War, many Northerners were concerned that Southerners would fail to pay the debts that they had accumulated during the war. In particular, there was concern that if Southerners had a majority in Congress, they would successfully repudiate those debts. The Framers understood that if the South failed to pay their debts, the government would not be able to function.

Some legal scholars have argued that one should not conclude that a president can invoke the 14th Amendment as it has not occurred historically.[18] This argument lacks rationale. If an individual has not litigated or invoked the 14thAmendment, that does not indicate an impossibility of invocation. With a politicized Supreme Court, it is no surprise that many do not want to litigate today. And, if anything, as no one has litigated or invoked the 14th Amendment, this argument only proves that there is no legal precedent set. There are a variety of reasons behind why a president may not have invoked the 14th Amendment: politics, time, money, lack of knowledge, etc. Additionally, issues with not raising the debt ceiling are not very common.

At any rate, the 39th Congress was notorious for using active voice. By many accounts, passive voice can be unclear because the subject receives the action rather than the subject exhibiting an action. It would be easy to examine Section Four and conclude that “public debt” strictly refers to bondholders as the 14th Amendment, and its two drafts, specifically mention war pensions and bounties. However, legal scholars have found that “a portion of the section sentence of Section Four was intentionally changed to use active voice by the Joint Committee to avoid the use of passive voice.”[19] This indicates that the Framers explicitly chose to keep the phrase “shall not be questioned” in passive voice.[20] Legal scholar, Zachary Ostro, writes, “Such a sentence structure illustrates that it was the Framers intent not merely to set a "technical rule barring failure to make debt payments," but rather to announce, ‘a general principle of debt validity’ as a means of ensuring the public of the nation's financial strength, as well as the security of investing in federal bonds.”[21]And, the word “including” indicates that bondholders are an addition to “public debt.”

The Framers could not predict that the United States would have a debt ceiling, but they recognized that highly politicized systems result in a government made dysfunctional due to an inability to pay public debt. Further, it must be noted that debt, as a generality, is not the only thing of concern: “a greater commitment to the future of political stability” was what the Framers were fundamentally attempting to protect.[22]

Thus, because the Framers crafted Section Four and Section Five at a politically divided time—where the debate over the payment of public debt was a question of the functioning of the government—why would the president and Congress (in the instance of the debt ceiling not being raised) not be analogous to the same dysfunctional government during the Reconstruction Era?

Importance of Insurrections

As Section Four of the 14th Amendment explicitly references insurrections”and the necessity of the government “suppressing insurrection[s]” against the United States, an analysis of insurrections (and how to suppress them) must take place. As the 14th Amendment was written during the Reconstruction Era, the Framers attempted to provide both financial and political stability in terms of debts to allow for “services in suppressing insurrection or rebellion.” As the military suppressed the South’s insurrections during the Civil War, one should view the Public Debt Clause as maintaining governmental obligations – this includes the military. Rather than solely looking at the Civil War, one should look at a more contemporary insurrection: January 6th, 2020.

On January 6th, 2020, individuals attempted to overturn the results of a legitimate election and deny the formal confirmation of a democratically elected president. A prominent public officer that suppressed this insurrection was Eugene Goodman. As a government employee working in law enforcement at the U.S. Capitol building, one of Goodman’s responsibilities is to suppress insurrections if they occur. At the time of this insurrection, it was the government’s responsibility to pay this officer and maintain the payment of public debt writ large. Not only do federal officers fight insurrections, but the military also fights insurrections.

If the debt ceiling were to stop officers like Eugene Goodman from being paid, then that would certainly “question” these public debts utilized to suppress insurrections. Without paying these military employees, public workers, etc., there would be no political stability that the 14th Amendment advocates for. Potential consequences of the government not fulfilling public debts expands beyond not being able to fund the military. People join certain governmental positions (such as a position that is responsible for suppressing insurrections) under the pretense that current laws and parallel structure is worth fighting an insurrection for. If Congress were to stop funding public entitlement programs, there is no doubt that this would put individuals who suppress insurrections into a position where they feel as though the government is not worth upholding.

This is not to say that the military and public entitlement programs must be funded endlessly. Congress may pass bills that limit or cut spending of certain programs completely. In the case of Congress eliminating the funding of public entitlement programs, as with the status quo, individuals would do a form of cost-benefit analysis to determine if this country is worth suppressing an insurrection for. However, if the government does not ensure that its public debts are paid, individuals would be disincentivized in suppressing insurrections for a government that chooses not to pay its public obligations.

Case Law

The single most prevalent Supreme Court case that has analyzed Section Four of the 14th Amendment is the decision made in Perry v. United States (1935).[23] This court case dealt with John Perry who bought a $10,000 gold bond. This bond was payable in “gold coin of the present standard value.” After Perry purchased the bond, Congress had changed the value of the standard gold dollar to a lower amount than when he initially bought the bond. Because the Court found Perry to only be entitled to the specific dollar amount of the bond, it was not necessary to give Perry the weight of the gold that he believed he was entitled to. Regardless, the opinion of the Court discussed “public debt.”

For many legal scholars, viewing “public debt” as strictly in the context of bondholders and not all governmental obligations would be the correct way of interpreting “public debt.” Yet, the Court in Perry stated:

While [Section Four] 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. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. 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.

There is no question that the Court is discussing bonds; obviously, Perry regarded gold bonds. However, the Court explicitly indicates that Section Four has a “broader connotation.” While some legal scholars have interpreted this to apply to other types of bonds, this type of interpretation fails to consider the sentences that come after in confirming its truth. The Court states that “‘the validity of the public debt’ [embraces] whatever concerns the integrity of the public obligations.’” Thus, public obligations include that of public entitlement programs.

Solution

Many legal scholars have posited a litany of solutions to this problem. The position that will be argued here is that the president ought to unilaterally act to prevent the government from defaulting in a world where the debt ceiling is not raised. Although this appears to be an unconstitutional action (as Section Five of the 14th Amendment gives Congress “the power to enforce…the provisions of this article”), Congress failing to raise the debt ceiling to cover public debts is an indication that Congress has not passed “appropriate legislation” to enforce the provisions outlined in the 14th Amendment.

Although the president may unilaterally act, this is not to assume that the president has ultimate authority over congressional spending. As it has been argued, only present debts must be paid for - so if the president were to invoke the 14th Amendment and pay new debts that have not been authorized by Congress, this would be unconstitutional. In the world of the president unilaterally acting to prevent the government from defaulting, this would be a perfect system of checks and balances as Congress has the ability to pass legislation that restricts or eliminates funding of presently agreed upon debts. This means that Congress can pass laws to restrict or eliminate public entitlement programs, but until they do, the debts must be paid.

This solution is best as the president unilaterally acting would not cause legal trouble. Robert Levy states that:

No one has legal standing to challenge an executive decision to borrow in excess of the ceiling. Standing to sue entails a showing of imminent, concrete and particularized injury to the plaintiff — distinct from injury to the broader public… even if someone had standing, the Supreme Court would likely treat the debt ceiling dispute as nonjusticiable — that is, as a political question lacking legal criteria by which a court can resolve the impasse.”[24]

Without the president unilaterally acting, public debts will not be paid which indicates that the president would be found in violation of the Take Care clause of the Constitution.[25] If the president cannot successfully enforce laws, they are subject to violating the Constitution subjugating them to impeachment. Although some legal scholars may disagree with this note’s broad definition of “public debt”, many find impeachment to be an unlikely scenario.[26]  Regardless, the benefits are evident: unilateral action stops the government from defaulting. Public entitlement programs are necessary for the protection of various civil liberties which is a core reason for people joining positions of government that seek to suppress insurrections.

[1] FiscalData.Treasury.Gov. Source

[2] FiscalData.Treasury.Gov. Source

[3] U.S. Department of the Treasury. No date. Cite

[4] U.S. Const. Article. II

[5] Obama and G.O.P Issue Challenges on the Debt Limit. Jackie Calms and Jonathon Weisman. New York Times. They cite the White House Administration’s statement on not invoking the 14th Amendment. 2013.

[6] Mike Logfren’s opinion for the New York Times discusses the political implications for Joe Biden if there is a failure to raise the debt ceiling. 2021.

[7] U.S. Const. amend. XIV. Section Four of the 14th Amendment:

“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.”

U.S. Const. amend. XIV. Section Five of the 14th Amendment:

“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

[8] In Daniel Strickland’s legal note The Public Debt Clause Debate: Who Controls This Lost Section of the 14th Amendment?, Strickland cites Noah Webster, A Dictionary of the English Language: Abridged from the American Dictionary 460 (Huntington & Savage, Mason & Law rev. ed. 1850). 2012.                               

[9]  In Daniel Strickland’s legal note The Public Debt Clause Debate: Who Controls This Lost Section of the 14th Amendment?, Strickland cites Black’s Law Dictionary 1690 (9th ed. 2009). 2012.

[10] Law Dictionary Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union. John Bouvier. Originally published: Philadelphia: T. & J.W. Johnson. 1839.

[11] “DEBT, contracts. A sum of money due by certain and express agreement. 3 Bl. Com. 154. In a less technical sense, as in the "act to regulate arbitrations and proceedings in courts of justice" of Pennsylvania, passed the 21st of March, 1806, s. 5, it means an claim for money. In a still more enlarged sense, it denotes any kind of a just demand; as, the debts of a bankrupt. 4 S. & R. 506.” A Law Dictionary: Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union. John Bouvier.  Revised Sixth Edition. 1856.

[12] Google Ngram Viewer. Public Debt.

[13] A Law Dictionary: Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union. John Bouvier.  Revised Sixth Edition. 1856.                                       

[14] Black’s Law Dictionary, 2nd. Ed. Accessed through TheLawDictionary.org.

[15] The Public Debt and the Public Credit of the United States. Press of Wynkoop, Hallenbeck & Thomas. 1864.

[16] The Public Debt Clause Debate: Who Controls This Lost Section of the 14th Amendment? Daniel Strickland. 2012.

[17] The Best Choice Out of Poor Options: What the Government Should Do (or Not Do) If Congress Fails to Raise the Debt Ceiling. Kelleigh Fagan. 2013.

[18] The Best Choice Out of Poor Options: What the Government Should Do (or Not Do) If Congress Fails to Raise the Debt Ceiling. Kelleigh Fagan. 2013.

[19]The Public Debt Clause Debate: Who Controls This Lost Section of the 14th Amendment? Daniel Strickland. 2012.

[20] In the Debt We Trust: The Unconstitutionality of Defaulting on American Financial Obligations, and the Political Implications of Their Perpetual Validity. Zachary Ostro. 2014.

[21] In the Debt We Trust: The Unconstitutionality of Defaulting on American Financial Obligations, and the Political Implications of Their Perpetual Validity. Zachary Ostro. 2014.

[22]In the Debt We Trust: The Unconstitutionality of Defaulting on American Financial Obligations, and the Political Implications of Their Perpetual Validity. Zachary Ostro. 2014.

[23] The decision in Perry v. United States, 294 U.S. 330 (1935) was a plurality.

[24] Defaults, Debt Ceiling, and the 14th Amendment. Robert Levy. CATO Institute. 2011.

[25] The Take Care clause of the U.S. Constitution is found in Art. III. The president must “take Care that the Laws be faithfully executed.”

[26] The Best Choice Out of Poor Options: What the Government Should Do (or Not Do) If Congress Fails to Raise the Debt Ceiling. Kelleigh Fagan. 2013.