A Further Reply to Professor Balkin

Professor Balkin has replied to my critique of his analysis of the legislative history of the Public Debt Clause. It is a powerful effort, but I think the reader will conclude that its power lies more in the cleverness of its author than the merits of its argument.

At the outset, let me say that Balkin knows way more than I do about the history of the Fourteenth Amendment and its framers, and he employs this knowledge to great rhetorical effect. I am happy to accept all of his observations about the personalities involved and the broader historical context. None of these observations, however, point toward the conclusion that he wishes to reach.

The Wade Proposal. Take, for example, his description of the central importance of Senator Benjamin Wade in the politics of that time. Fair enough, but doesn’t that make the Senate’s failure to adopt Wade’s proposal all the more significant? The Senate didn’t just ignore or overlook Wade’s proposal; it made a deliberate decision to adopt Senator Howard’s proposal instead.

Balkin explains that “Howard accepted Wade’s ideas, discussed them with other Republican leaders, and reshaped them into the official proposal that was later put before the Senate, and subsequently modified by Clark.” But Howard clearly did not accept all of Wade’s ideas, and he “reshaped” Wade’s language into a very different proposal. Balkin gives no account of why these changes were made.

Bear in mind that there is no dispute regarding the core motivation underlying the proposed provision. Republicans feared that readmitted southern states would try in some fashion to disavow Union debts and they wished to forestall such an effort.

The question is how the framers of the Fourteenth Amendment decided to go about addressing this problem. At the broadest level, they might have decided that any obligation of the United States, once assumed by Congress, must continue in perpetuity and could never be altered or amended to the detriment of the beneficiary. One can understand why the framers might have been reluctant to endorse such an approach. For one thing, it would mean that whenever a court decided that an obligation had been “authorized by law,” Congress would be helpless to change it, even if the court’s interpretation was not actually what Congress had in mind.

While Wade’s proposal may or may not have been intended to go that far, the most plausible explanation for the more modest language of Howard’s proposal is that Wade’s colleagues feared that his language could put Congress in a constitutional straitjacket, with implications reaching well beyond the particular evil that they wished to address. If Balkin has a better explanation, he does not share it.

The Clark-Jackson Colloquy. Balkin’s interpretation of the legislative history places inordinate reliance on a single ambiguous exchange between Senators Clark and Johnson. After Clark offered a new version of what would ultimately become Section Four of the Fourteenth Amendment (and proposed to strike a single word of his substitute), Johnson noted, to Clark’s agreement, that “I do not understand that this changes at all the effect of the fourth and fifth sections.”

I don’t want to belabor the point, but it is not clear what Johnson meant by “this.” Balkin says that he must have meant the entirety of Clark’s proposed substitute because Johnson referred to “this” not changing the effect of the “fourth and fifth sections,” which is how the language in question was numbered in the previous draft. If Johnson had meant to refer to the change made by the single word strikeout, he would have more likely referred to “your substitute” or something to that effect.

Balkin’s reading is plausible, and probably correct, but my original point was simply that it was not clear what Johnson meant (or, for that matter, what Clark understood him to mean). It is possible that Johnson used the “fourth and fifth sections” as a shorthand for the entire provision that Clark was proposing, in which case “this” would refer to the single word change. A somewhat awkward phrasing, to be sure, but such things are quite common in verbal exchanges. It seems rather odd to attach greater importance and precision to the words used in this brief colloquy than to those used in the legally operative text of the Public Debt Clause.

If we assume Balkin is right about the meaning of “this,” we must move on to what Johnson meant by “the effect” of Clark’s proposal. Here Balkin pulls off quite a trick. He notes that there was one important difference between Howard’s language, which applied only to Civil War obligations, and Clark’s language, which appears not to be so limited. He thus disregards Johnson’s statement when it would lead to a result he disfavors, but treats it as controlling with respect to other apparent differences between the two proposals. It’s a bit like walking into a party and picking out your friends, if I may borrow a phrase.

Let’s take an example of how this works. If there is one thing that seems clear on the face of the Public Debt Clause, it is that its protections apply to “debts” but not to “obligations.” That’s because the second sentence of Section Four explicitly provides that both Confederate “debts” and “obligations” are illegal and void, while the first sentence protects only the “public debt” of the United States, including Union “debts” incurred in the Civil War. Certainly anyone reading the text of Section Four at the time it was proposed and ratified would have understood this meaning.

If anything, the legislative history of Section Four would seem to confirm that the difference in phrasing was deliberate. Wade’s original proposal, referred to the “public debt of the United States, including all debts and obligations . . . .” Clark’s proposal, which Balkin plausibly suggests was modeled on Wade’s, referred to the “public debt of the United States, authorized by law, including debts . . . .” It seems evident that Clark deliberately dropped the reference to “obligations.”

Balkin apparently would have us conclude that Clark dropped “obligations” in the first sentence either inadvertently or because it was redundant. He then would have us believe that Clark retained the word “obligations” (twice) in the second sentence, either inadvertently or for unknown reasons that Clark failed to note at the time. These assumptions, if valid, would not say much for the legislative draftsmanship of the Chairman of the Claims Committee.

And what is the basis for these assumptions? The Clark-Johnson colloquy, of course, which Balkin interprets as meaning that “debts” in Clark’s proposal must be synonymous with “obligations” in Howard’s proposal. (As opposed, for example, to the possibility that Clark decided that “debts” more accurately reflected the intent of the Senate than “obligations”). To state this position should be enough to refute it.

At the end of the day, the most we can infer from the Clark-Johnson colloquy is that these two senators believed that the Clark substitute would achieve the intended effect (or the central intended effect) of the Howard proposal. But this doesn’t tell us what they thought the intended effect was, much less provide a basis for ascribing their views to the rest of the Senate. Still less does it justify disregarding the actual language of the Public Debt Clause, which is the best evidence of what the proposers and ratifiers intended.

Balkin’s Hypothetical. To bolster his broad reading of the Public Debt Clause, Balkin argues that such a  reading is necessary to ensure that the Clause would achieve the objectives of its framers. He illustrates this point with a hypothetical in which a post-Civil War Congress, controlled by Democrats, decides not to invalidate or repudiate Civil War debts (or obligations), but to argue that the country cannot afford to pay them in full. Therefore, he suggests, “they deliberately appropriate less than is necessary to pay the debts as they come due, and they prevent the government from issuing new debt to help pay off existing obligations.”

I would first note that Balkin’s hypothetical needs some clarification. If Congress fails to appropriate money to pay off a particular debt or obligation, then it cannot be paid, even if there is a surplus in the Treasury (at least this is my understanding of the law as it has existed up until the last month or so). In addition, up until 1917 Congress had not delegated any general borrowing authority to the executive, so that each debt issuance had to be specifically approved by Congress. Thus, it would not accurate to say that Congress would “prevent the government from issuing new debt.” Absent specific congressional action, there would be no way for the government to borrow.

Having said this, one wonders what Balkin expects would happen in his hypothetical, even if the Public Debt Clause had the broad meaning he supposes. Presumably Congress would have a constitutional obligation to appropriate money and authorize new debt, but what would happen if the votes were not there to enact these measures?  There would seem to be only two possible answers. The first is that the Public Debt Clause would be effective only to the extent that Congress chose to follow its (implicit) strictures, and the second is that some other entity would be able to enforce it against Congress.

Assuming that the framers of the Fourteenth Amendment considered some hypothetical along the lines proposed by Balkin (and there is no evidence they did), they would have realized that attempting to make the Public Debt Clause broad enough to deal with such eventualities would either be futile (because it would be dependent on the good faith of a future Congress controlled by traitors they despised) or would involve ceding enormous power to the executive and/or judicial branches. As much as they may have wished to ensure that Civil War obligations would be paid, it seems highly doubtful that they would have wanted to do so at the cost of ceding congressional appropriations or borrowing authority to the other branches. This makes it perfectly understandable that they were content to propose the Public Debt Clause in the limited and largely exhortatory form that they did.

Moreover, Balkin’s reading of the Public Debt Clause would not necessarily protect against the gamesmanship of a future Congress. Consider a different hypothetical. Instead of attempting to reduce Civil War obligations, a future Congress chooses to broaden the existing pension system so that it covers everyone, including Confederate veterans. From the perspective of the framers of the Fourteenth Amendment, this might be an even greater outrage than a reduction of Union benefits. Yet Balkin’s interpretation of the Public Debt Clause could not prevent it.

To the contrary, if Balkin were correct, once Congress expanded the pension system, it would be constitutionally impossible for another Congress to undo the expansion. A Congress controlled by Southern Democrats, even for a brief period, would have the power to enact changes that could never be undone, no matter how damaging or malicious they might be.

It is not difficult to understand why the framers of the Fourteenth Amendment would not have wished to establish such a regime.