Tag Archives: United States Constitution

“Let’s give up on the Constitution”

That provocative headline got me – and no doubt millions of others – to read this op-ed in The New York Times (caution: possible paywall). Its author first notes how unproductive the offers and counter-offers on avoiding the fiscal cliff have been. He says the arcane limitations under which Congress must proceed – as dictated by the Constitution – are one barrier to producing any sensible legislation to send to the President. He blames in part our blind adherence to Constitutional prerogatives.

Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

He reminds us of one of my own favorite facts of American history, one that is routinely ignored:

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience. When George Washington and the other framers went to Philadelphia in 1787, they were instructed to suggest amendments to the Articles of Confederation, which would have had to be ratified by the legislatures of all 13 states. Instead, in violation of their mandate, they abandoned the Articles, wrote a new Constitution and provided that it would take effect after ratification by only nine states, and by conventions in those states rather than the state legislatures.

It was because of these subversive proceeding that the gathering in Philadelphia famously kept all windows closed during their deliberations. They worked in a steam bath rather than chance being overheard by those who lurked outside Independence Hall. They knew their behavior would be widely seen as subversive.

Stock Photo of the Consitution of the United States and Feather Quill. . . before abandoning our heritage of self-government, we ought to try extricating ourselves from constitutional bondage so that we can give real freedom a chance.

Moving from one year onto the next – as we will do at midnight – should remind us all that the arc of history always favors leaving the past behind and stepping into the future.

Originalism be damned.

The debt ceiling and the Fourteenth Amendment

As rhetoric heats up about the debt ceiling (not to mention the indignity of being ordered to come to work on a weekend), a new talking point has emerged. This is very interesting – expect sputtering rage when the radio talkers retake the air on Tuesday morning. From the linked post at Crooks & Liars:

It’s an untested concept, but rooted in some really strong history. I cannot recommend this post enough for the backstory and history around the adoption of Section Four of the Fourteenth 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.

When I first heard about this I was completely confused as to how language about the public debt became part of a constitutional amendment, which is why you really must read the post on Balkanization. Here’s a snippet:

What do we learn from this history? If Wade’s speech offers the central rationale for Section Four, the goal was to remove threats of default on federal debts from partisan struggle. Reconstruction Republicans feared that Democrats, once admitted to Congress would use their majorities to default on obligations they did disliked politically. More generally, as Wade explained, “every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject to the varying majorities which may arise in Congress.”

more from Jon Chait:

This means that the very existence of the debt limit is unconstitutional because it calls into question the validity of the debt. So would any other provision of law. That is a key reason why Congress created a permanent appropriation for interest payments at the same time that the Fourteenth Amendment was debated. Previously, Congress had to pass annual appropriations for interest.

Paul Krugman also had a word on the same subject yesterday.

UPDATE: I urge you to read the comment below by John Nail re a 1935 ruling by the Supreme Court on this very matter.