“Threatening Default”: A Response to Professor Balkin

There is a plethora of Public Debt Clause news, but let’s begin with Professor Jack Balkin’s analysis of the Clause’s legislative history. Balkin contends that the key part of that history is the proposal made by Senator Benjamin Wade to insert the following language into the draft of the Fourteenth Amendment: “The public debt of the United States, including all debts or obligations which have been or may hereafter be incurred in suppressing the insurrection or in carrying on war in defense of the Union, or for payment of bounties or pensions incident to such war and provided for by law, shall be inviolable.”

Wade explained that his proposal “puts the debt incurred in the civil war on our part under the guardianship of the Constitution of the United States, so that Congress cannot repudiate it.” (emphasis added) He further noted that this “will give great confidence to capitalists and will be of incalculable pecuniary benefit to the United States, for I have no doubt that every man who has property in the public funds will feel safer when he sees that the national debt is withdrawn from the power of a Congress to repudiate it and placed under the guardianship of the Constitution than he would feel if it were left at loose ends and subject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.” (emphasis added) Finally, he stated that his “amendment goes further, and secures the pensioners of the country [by putting] the pensions of our soldiers and their widows and children under the guardianship of the United States. They ought to be there, along with your public debt.”

Balkin argues that “[i]f Wade’s speech offers the central rationale for Section Four, the goal was to remove threats of default on federal debt from partisan struggle.” He concludes that the Public Debt Clause was placed in the Constitution to remove the “threat of defaulting on government obligations” as a weapon in “ordinary politics.”

What’s wrong with this analysis? To begin, Wade’s proposal was not the version of the Public Debt Clause that was actually proposed and ratified. In fact, it wasn’t even approved by the Senate. Instead, the Senate adopted Senator Jacob Howard’s proposal, which stated: “The obligations of the United States, incurred in supporting insurrection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate.”

There is no direct evidence as to why the Senate chose to adopt Howard’s version, rather than Wade’s. It seems a reasonable surmise, however, that the Senate was uncomfortable with the implication, reflected in both Wade’s proposed language and his explanation thereof, that it would be making a dramatic change in the legal status of the public debt. Even Howard’s phrase “remain inviolate” implies a more modest intent to preserve the current legal status of Civil War obligations, rather than to give them constitutional protection which did not previously exist.

The final version of the Public Debt Clause, of course, is significantly different from Howard’s proposal in that it applies to all “public debt of the United States” and is not focused solely on the Civil War. However, it is also significantly different from Wade’s proposal, a fact that Balkin largely ignores.

First, the Public Debt Clause refers only to “debt,” not to “obligations,” while Wade’s proposal did the reverse. As I have noted before, it seems clear that this was intentional and that the framers decided not to include “obligations” within the scope of the Clause. Thus, whatever protection the Clause affords, it applies only to “debt” and not to “obligations.”

An even more significant difference is that while Wade said that the public debt would be “inviolable,” the Public Debt Clause says only that the “validity” of the public debt “shall not be questioned.” It seems highly unlikely that this peculiar phrase was chosen to be synonymous with either Wade’s or Howard’s proposal.

So why was it chosen? Again, we have to engage in a degree of surmise. The language of the Clause directly addresses the evil the framers feared—namely an attempt to declare portions of the public debt (particularly portions related to the Civil War) to be invalid. But this result would have been achieved by Wade’s or Howard’s language as well.

It seems to me that the most likely explanation is that the Senate did not intend to alter the degree of legal protection that the public debt previously enjoyed, but was not of one mind regarding what that protection was. It therefore simply declared that all public debt that was valid (i.e., “authorized by law”) would remain valid. This explanation involves a degree of speculation, but it is more consistent with the actual language of the Clause, as well as the Senate’s previous decision to reject Wade’s proposal, than any other that I have heard so far.

Balkin argues, however, that we should read the Public Debt Clause as meaning the same thing as Wade’s proposal. His basis for this is a colloquy between Senator Clark, who offered the near-final version of the Public Debt Clause, and Senator Johnson. Johnson stated “I do not understand that this changes at all the effect of the fourth and fifth sections. The result is the same.” Clark responded: “The result is the same.”

With all due respect, this argument gives the use of legislative history a bad name. In the first place, it is not even clear that Johnson was referring to the entirety of the language offered by Clark, as opposed to a change that Clark had just made to strike a single word from the language, which Clark stated “does not add anything to its force.”

More importantly, however, even if Johnson meant that he saw no difference between “the result” of Clark’s language and that of the prior draft, he was obviously referring to Howard’s language, not to Wade’s. It would be far-fetched to conclude that Johnson was commenting on Wade’s proposal, which was not the then-current language before the Senate (and indeed had never been adopted by the Senate). It would border on the absurd to conclude that “the result” referred to by Johnson was the result advocated by Wade in supporting a proposal not adopted by the Senate.

Finally, regardless of what Johnson meant, it is quite a stretch to conclude that the Public Debt Clause should be read as meaning, not what it says, but what a single senator said that a proposal with very different language should be read as meaning. It’s enough to give one a Justice Scalia-like attitude toward legislative history.

But even if we forget all that, and accept Balkin’s view that “Wade’s speech offers the central rationale for Section Four,” I have a hard time making the jump from Wade’s speech to Balkin’s interpretation thereof. Wade said that his language would prevent Congress from repudiating the debt.  Balkin says that it was intended to prevent Congress from making a “threat of default on government obligations.” This is not the same thing at all.

Now I am not sure what Balkin means by “threatening default.” Was Secretary Geithner “threatening default” when he sent letters to Congress asserting that default would result unless Congress raised the debt limit? Did then-Senator Obama “threaten default” when he voted against raising the debt limit?

So let’s review. The Public Debt Clause prohibits questioning the validity of the public debt. As far as I know, no one is questioning the validity of the public debt. Senator Wade said that Congress should be prohibited from repudiating the debt. As far as I know, no one is proposing to repudiate the public debt. Professor Balkin says that Wade should be interpreted as meaning that the Public Debt Clause should be interpreted as meaning that no one should threaten default on the public debt. I don’t think that anyone is doing that either, unless “threatening default” means “refusing to do what someone else says is necessary in order to avoid default.”

In which case, everyone is threatening default.