A Thought on the Public Debt Clause and Article VI

It seems fair to say that the Public Debt Clause will get more attention from scholars in the next few years than it did for its first 145 years of existence. In that connection, I want to suggest that Article VI, clause 1, deserves some thought. That clause provides that “[a]ll Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”

If one is trying to answer the question of why the framers of the Fourteenth Amendment changed the language of Section 4 from ensuring that the public debt would remain “inviolate” to ensuring that the “validity” of the public debt would not be questioned, Article VI would be a promising start. Article VI and Section 4 are trying to address analogous problems, namely how the debts incurred under one constitutional order will be treated in another.

By using Article VI’s concept of “validity,” the framers of the Fourteenth Amendment may have been borrowing (so to speak) the original Constitution’s solution to a similar problem without necessarily reaching consensus among themselves as to what that solution would entail. In this regard it should be noted that the first Congress vigorously debated whether Article VI required full payment of creditors, particularly those who were assignees of debt instruments. See David Currie, The Constitution in Congress: The Federalist Period 1789-1801 73-76 (1997). Notwithstanding constitutional arguments made by Secretary of the Treasury Alexander Hamilton and supporters in Congress, the decision was ultimately made not to pay these creditors in full.

Whether or not the framers of the Fourteenth Amendment were specifically aware of this history, it seems reasonable that they would have had some sense that “constitutionalizing” the debt in a new way could have potential ramifications that might be difficult to appreciate fully at the time. The use of the term “validity” therefore suggests an intent to claim the security of a pre-existing legal status (while realizing the core objective of ensuring that Civil War debt would be treated the same as all other public debt) without breaking new ground on what that status would entail.

Article VI may also shed some light on what the framers of the Fourteenth Amendment meant when they used the term “debt.” As Professor Larry Tribe points out in a piece posted last night at The Volokh Conspiracy and elsewhere (in which this blog had the honor of being cited): “the word ‘debt’ appears five times in the original Constitution. In each of those instances, it would be highly unnatural to read ‘debt’ as synonymous with ‘all legally required payments.’ The alternative—suggesting that the framers or ratifiers of the Fourteenth Amendment used a word already used in the Constitution, but imbued it with a different meaning—is equally implausible.”

Scholars will have plenty of material to work through.