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Cornyn on 14th Amendment, Section 4: “That’s Crazy Talk”

A Republican was finally asked about the Constitutional option for the debt limit, and seeing how that would defuse the bomb they rigged, timed, and lit, John Cornyn dismissed that as “crazy talk.” Cornyn just asserts that and moves on inside the confines of the hostage-taking situation his party has created. It quite literally does not compute.

Given that Cornyn is such a noted Constitutional scholar, obviously his two-word response should be given a certain degree of weight. But Yale law professor Jack Balkin has also returned to this playing field with more on how the legislative debate over the 14th Amendment provides a window into the true intent of this measure. It’s an interesting discussion. He says that Sen. Ben Wade, the leader of the Radical Republicans at the time, provided important insight in his proposal to guarantee Union as well as Confederate debt, because of his leadership role and how it mirrored the thinking of the committee that drafted the amendment. He then rebuts an argument that Section 4 merely talks about “repudiating” debt rather than “defaulting.” Here’s a bit of that (remember for this that the Republicans of the post-Civil War era were the ones who wanted to assure that the public debt “shall not be questioned”):

Much of the language in the debates speaks about repudiating the public debt (or obligations). Why should we think that the framers were at all concerned with merely defaulting (or threatening to default) on public debt? As I read Stern, he is saying that merely defaulting on government debt, or merely threatening to default on government debt should not be understood as “questioning” the validity of the public debt as long as the debt is not formally repudiated.

I think that this reading is artificially narrow. It is inconsistent with the political context that produced Section 4, because it would not give the Republicans the sort of assurances they needed. We should interpret section 4 so that it solved the political problems that the Republicans wanted to solve. If our proposed interpretation does not solve those problems, it is very likely that we have picked the wrong reading […]

I would suggest that this is very sort of thing that the Republicans were worried about. They feared that the Democrats would use a future economic crisis over the debt to wring political concessions. The Republicans believed that the ex-rebels and their sympathizers would someday return to power, and they wanted to prevent them from making payment of the public debt into a weapon of political threat and reprisal. If the practices I have just described would not constitute a violation of section 4, then the section is practically meaningless.

Read the whole thing, but in essence, Balkin continues to insist that the legislative intent of Section 4 of the 14th Amendment is the same now as it was then, to stop an aggressive political party from using the threat of withholding payment on the debt to achieve their goals.

Brian Beutler and Ryan J. Reilly delved a bit deeper into this, and found that the Office of Legal Counsel (and its new leader, Virginia Seitz) would have to make an opinion formalizing this interpretation of the Constitution, and the Administration would have to weather attacks from Congress, a possible impeachment, and potentially some court battles to pull this off. That does seem like a bridge too far for this crew. But remember, the Treasury Secretary pulled that Constitution out of his pocket back in May to send a message.

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David Dayen

David Dayen