As tension rises over the impending breach of the debt ceiling, Biden aides are apparently debating the question of whether the debt ceiling is constitutional. Section Four of the Fourteenth Amendment provides that “the validity of the 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.” Under Section Four, it is unconstitutional for Congress to default on debt that the United States has already incurred, and arguably unconstitutional for Congress to impose any ceiling on U.S. debt. Many people are skeptical of this argument, and the Obama administration opted not to pursue it during their own debt crisis. The question of whether it would be politically wise for the Biden administration to invoke Section Four is indeed debatable, but the import of Section Four is clear. Section Four does impose a constitutional mandate that is directly relevant to today’s debt ceiling crisis.
Disregarding Section Four of the Fourteenth Amendment is consistent with a longstanding and ahistorical practice by constitutional lawyers and scholars. They tend to focus solely on Section One of that Amendment, with its Equal Protection and Due Process Clauses that are today primarily enforced by courts. However, as Mark Graber describes in his new book, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War, members of the Reconstruction Congress viewed Section One as the least important part of the Fourteenth Amendment. Their primary goal was to create structural protections that would ensure the survival of the country after the rebel states rejoined the union – and Section Four established one of those protections.
Our original Constitution contained numerous structural provisions that reinforced the institution of slavery by augmenting the power of southern states in which slavery was legal. Most notably, the Three-Fifths Clause of Article I provided that enslaved people (“other persons”) would be counted as three-fifths of a person for purposes of representation, even though enslaved people lacked the right to vote along with any other human rights. This clause affected the representation of southern states in the United States House of Representatives and the Electoral College. Though it was obviously demeaning to the human dignity of enslaved people to count them as only three-fifths of a person, the fact that they were counted at all increased the power of southern states. On the other hand, the three-fifths ratio diminished that power.
After the Civil War, the Thirteenth Amendment abolished slavery and invalidated the three-fifths clause. Formerly enslaved people would now count as a full person for purposes of representation. However, this symbolic victory threatened their human rights and the very future of our nation. Because most formerly enslaved people lived in southern states, the Thirteenth Amendment guaranteed that southern states would have increased representation as they reentered Congress, which would enable them to retake power in the federal government. Yet those southern states were dominated by confederate sympathizers – precisely the people who had taken up arms to destroy the federal government in the preceding years. Moreover, those former rebels intended to reinstate slavery in everything but name.
Members of the Reconstruction Congress sought to remedy the structural change wrought by the invalidation of the Three-Fifths Clause, and address the intransigence of rebel sympathizers, by creating structural protections of their own. Section Two established new rules for apportioning representatives, which would now be allocated “counting the whole number of persons in each State . . .” Under Section Two, that number would be reduced if states denied representation to newly freed slaves, but authorized states to deny the franchise to those who had participated in the rebellion. Section Three prohibited former rebels from holding state or federal office.
Section Four must be understood in context of the rest of the Fourteenth Amendment. Members of the Reconstruction Congress were worried that representatives of the southern states might repudiate war related debt and cause harm to the nation’s economy. Section Four also prohibits the United States and any state from assuming any debt incurred by supporters of the confederate cause. As Graber describes in Punishing Treason, members of the Reconstruction Congress were worried that the nation’s economy would collapse if Congress repudiated any part of the national debt – and they did not trust the former slaveholders to refrain from doing so. Addressing the debt problem was a central component of the Reconstruction project.
Sections Two through Four of the Fourteenth Amendment are part of our Constitution and should not be consigned solely to our constitutional memory. Moreover, these constitutional provisions are far too relevant to what is happening in our nation today. On January 6, 2021, an armed mob of insurrectionists carried the confederate flag through our nation’s capitol for the first time in our nation’s history. Supporters of that insurrection are among those in Congress who are threatening to destroy our nation’s economy by repudiating our nation’s debt. This arguably may be politically unwise, but it is a constitutionally tenable claim.
Rebecca Zietlow is the Associate Dean for Academic Affairs, Associate Dean for Diversity, Equity and Inclusion, Charles W. Fornoff Professor of Law and Values, and a Distinguished University Professor at the University of Toledo College of Law. Her previous work includes The Forgotten Emancipator: James Mitchell Ashley and the Ideological Origins of Reconstruction (Cambridge University Press 2017) and Beyond Equality: Congress, the Constitution, and the Protection of Individual Rights (NYU Press 2006).
Suggested citation: Rebecca Zietlow, The Answer to the US Debt Ceiling Crisis May Lie in the 14th Amendment, JURIST – Academic Commentary, May 4, 2023, https://www.jurist.org/commentary/2023/05/14th-amendment-debt-crisis.
This article was prepared for publication by JURIST staff. Please direct any questions or comments to them at commentary@jurist.org
