After a mere two and a half years, the Treasury Department has produced documents responsive to my FOIA request. As you may recall (ok, you probably don’t recall), I asked Treasury to produce “[a]ll documents that contain, discuss, refer or relate to any legal opinion or analysis by the Treasury Department General Counsel, or any attorney thereof, of Section Four of the Fourteenth Amendment (also known as the Public Debt Clause), or any application or potential application of Section Four to the statutory debt limit.”
This seemed to me to be a pretty narrow request and, as it turns out, Treasury identified a mere 755 pages responsive to my request. It released 432 pages, some of which were redacted, mostly consisting of printouts of public materials like newspaper articles and transcripts of news programs or congressional hearings. You can peruse the whole thing here.
The remaining 323 pages (aka the good stuff) were withheld in their entirety.
Despite its best efforts, though, Treasury did provide a few interesting tidbits. It produced a number of pages consisting of materials (cases, law review articles, etc.) that were apparently considered relevant to the legal analysis of the Public Debt Clause. Today I want to focus on one of these documents (found at page 386 of the production), which is a New York Times editorial dated December 11, 1868.
The NYT was very upset by a proposal made by outgoing President Andrew Johnson that would have altered the terms on which the large national debt incurred during the Civil War would be repaid. Johnson was apparently proposing that the interest payments (at six percent) required on the bonds be used instead to reduce the principal. The NYT responded:
Coleridge says “a knave is only a roundabout fool.” Mr. Johnson illustrates the doctrine. What does he think he gains by his talk about using the interest to pay the principal? Why does he not propose, openly and without circumlocution, to repudiate the debt wholly and completely? Applying the interest to reduce the principal is simply confiscating the interest and using the amount of which the creditor is thus robbed toward paying the debt. The interest is as much due the creditor as the principal; and to talk about withholding the one, to pay the other, is to talk nonsense, and very dishonest nonsense at that.
Ah, the good old days of civility in politics. But what does this have to do with the Public Debt Clause? Well, despite the NYT’s virulent opposition to Johnson’s idea, there is no suggestion in the editorial that the proposal would be unconstitutional or, more specifically, that it would violate Section Four of the Fourteenth Amendment, which had been ratified mere months earlier (July 9, 1868).
Of course, an omission in a NYT editorial will bear only so much weight. But if there is no evidence that anyone at the time thought Johnson’s proposal, which appears to amount to a partial repudiation of the debt, violated the Public Debt Clause, it is hard to to give credence to the far more aggressive reading of the Clause now advanced by Professor Epps and others in connection with the statutory debt limit.
Good catch, nameless Treasury Department lawyer. Too bad your department’s penchant for secrecy prevents you from receiving your due.