Tuesday, July 26, 2011




The Last Option


With the days dwindling down to a precious few to August 2 and the default (more likely, an economic calamity) that might ensue if the debt ceiling isn't raised, attention can be turned again to the 14th Amendment of the United States Constitution. Article 4 reads

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.

A few scholars, including law professors Eric A. Posner and Adrian Vermeule, believe the President of the United States unilaterally can raise the debt ceiling without invoking the Amendment because he "would derive authority from his paramount duty to ward off serious threats to the constitutional and economic system." Further, The New York Times Adam Liptak notes, the Amendment may refer only to Congress or to outright default on existing debts, improbable given the likelihood that the Treasury Department would pay bondholders first if the ceiling isn't raised.

Nevertheless, the 14th Amendment argument probably is stronger and using it (with a complete explanation to the public) to prevent an outcome desired by the hard right would be quite delicious, given obsessive references to the Constitution by Tea Party acolytes. And the Administration's position likely would prevail, Harvard law professor Lawrence H. Tribe contending "This is not a circumstance in which the courts have any plausible point of entry” and Yale law professor Jack M. Balkin "This is largely a political question. It is unlikely courts would decide these questions.”

More bluntly, Bill Clinton maintained that were he president now, he would invoke the 14th Amendment "without hesitation and force the Courts to stop me."

Liptak (a lawyer and Times Supreme Court correspondent), though, characterizes the Article as "quite vague" and was "meant to ensure the payment of Union debts after the Civil War and to disavow Confederate ones." He writes "The Supreme Court has said in passing that those words have outlived the historical moment that gave rise to them."

That settles it. We must ALWAYS give meaning to a constitutional amendment in light of the historical context "that gave rise to" it. Take, for instance, the Second Amendment, which reads

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

In case Mahmoud Ahmadinejad develops that nuclear weapon he dreams of with the necessary delivery system, and drops it on Chicago, Illinois, be reassured that the Illinois National Guard stands ready to retaliate. Or if a catastrophic terrorist attack were launched on, say, New York City, that well-regulated militia would be the last line of defense for American citizens. And be sent out to hunt down Osama binLaden.

Unless they were extremely psychic, the Constitution's framers, cognizant of attacks from Creek Indians, the threat from Redcoats, and the need of individual homeowners to kill their own food, never envisioned a future in which urban neighborhoods have become virtual battlefields (or even, probably, of urban neighborhoods). Yet there are people, from all appearances sane and sober, who believe that the Second Amendment pertains to everyone, drug addicts, gang members, and the mentally ill among them (and especially Mexican gang members employed full-time in the drug war along the Texas border). Sadly, across the political spectrum, Bill Clinton on the sort-of center/left, some liberals, and the mainstream media (among which it's an article of faith), there is an assumption that- aside from reasonable restrictions- American citizens are guaranteed by the Second Amendment to bear arms.

The idea that the Second Amendment applies to modern society is nonsense. But it is commonly held nonsense, in contrast to the strong possibility that Article 4 of the Fourteenth Amendment applies well beyond the Civil War. So, Mr. President, if you can't get an agreement by August 2, follow the advice of Clinton 42 and demonstrate leadership. Challenge the House to impeach you (not likely) and the Senate to remove you from office (a near impossibility). Or dare Congress to file suit and the Supreme Court to stop you.


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