Take It to the Limit
by Hendrik Hertzberg, The New Yorker, August 1, 2011
There is the current crop of Ohio Republicans, and then there are those who art in Heaven. A specimen of the former, ultimate destination unknown, is Speaker of the House John Boehner, a perpetrator (and, arguably, a victim) of the terrifying debt-limit arson that his party, on fire with ideological fanaticism, political ruthlessness, and economic heedlessness, decided to spend the summer fanning. Aloft, the Buckeye State’s celestial choir of the G.O.P. departed includes Presidents Grant, Hayes, Garfield, McKinley, Taft, and (assuming he’s been sprung from Purgatory) Harding. Its original member, less famous than the rest but as distinguished as any of them, is Benjamin Franklin Wade.
In 1866, Wade, a nationally prominent Ohio senator, laid down the law on the national debt. He was a principal drafter of the Fourteenth Amendment to the Constitution, which, until recently, was known almost exclusively for Section 1, the guarantee of legal due process and equal protection. Lately, though, Section 4 has been getting some ink, especially its first sentence: “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.” The long-standing obscurity of this passage is due partly to the aside about insurrection and rebellion, which makes the whole sentence look like a historical relic and sound like a voice-over from a Ken Burns documentary, and partly to the rarity of the situation it anticipates, which has never before arisen in a serious way. Now that it has, a number of constitutional scholars, including Garrett Epps, of the University of Baltimore, and Jack Balkin, of Yale, have been calling attention to the sudden relevance of Section 4. The immediate worry of its drafters was that Union war veterans and their survivors might get stiffed once legislators from the former Confederate states were readmitted. But Wade and his colleagues took pains to word the clause more broadly. Their larger intention, Balkin wrote recently, was to prevent Congress from “repudiating the federal debt to gain political advantage, to seek political revenge, or to try to disavow previous financial obligations because of changed policy priorities”—a pretty good summary of what Republicans have been up to of late.
The federal budget, its deficit, and the long-term debt that the deficit feeds are all consequences of laws passed by Congress—laws governing the collection and expenditure of funds. The debt-limit statute is a law, too. But if the government can no longer lawfully pay the bills it has already lawfully incurred, the President cannot fulfill his constitutional obligation (Article II, Section 3) to “take Care that the Laws”—all of them—“be faithfully executed.” At that point, some argue, the Fourteenth Amendment should tip the balance.
The week before last, Bill Clinton said that, in extremis, he would invoke it “without hesitation” and raise the debt limit himself rather than countenance default. Last week, with the final showdown looming and intimations of catastrophe mounting, prominent congressional Democrats, including Steny Hoyer and James Clyburn, the Party’s second- and third-ranking House leaders, urged President Obama to be ready to do just that.
On May 25th, Timothy Geithner, Obama’s Secretary of the Treasury, pointedly read the Fourteenth Amendment’s debt clause aloud to reporters. But the President has steadily backed away. At first, he simply dodged the question. Then, on July 22nd, he said that “my lawyers” are “not persuaded that that is a winning argument.” Finally, last week, his press secretary, Jay Carney, said that “our position” is that “the President does not have the authority to raise the debt ceiling.” It’s “not an option.” (Carney also said that default is not an option, either.)
Of course, invoking the Fourteenth Amendment has always been a long shot, a last refuge. But Obama’s seeming refusal to hold it in reserve (“like the fire axe on the wall,” in Garrett Epps’s words) is emblematic of his all too civilized, all too accommodating negotiating strategy—indeed, of his whole approach to the nation’s larger economic dilemma, the most disappointing aspect of his Presidency. His stimulus package asked for too little and got less. He has allowed deficits and debt to supersede mass unemployment as the emergency of the moment. He has too readily accepted Republican terms of debate, such as likening the country to a household that must “live within its means.” (For even the most prudent householders, living within one’s means can include going into debt, as in taking out a car loan so that one can get to one’s job.) He has done too little to educate the public to the wisdom of post-Herbert Hoover economics: fiscal balance is achieved over time, not in a single year; in flush times a government should run a surplus, but when the economy falters deficits are part of the remedy; when the immediate problem is what it is now—a lack of demand, not a shortage of capital—higher spending is generally more efficacious than lower taxes, especially lower taxes on the rich.
So it’s less surprising than it should be that in the debt-limit negotiations he has met Republican intransigence with an apparent willingness to accede to one Republican demand after another: no tax rises for the comfortable (the only kind that Democrats have dared to suggest); no new revenues at all, even from closing the most egregious loopholes; cuts in spending only, including spending on “entitlements,” the modest (by international standards) programs of social insurance for the old, the poor, and the sick that, through the decades, somehow managed to struggle into existence over the hurdles of America’s structurally divided and, of late, alarmingly dysfunctional political system. With compromises like these, who needs surrender?
But if, in the debt-limit scramble, the President has been a less effective educator and negotiator than many of his supporters wish he would be, his Republican opponents, in thrall to their Tea Party Jacobins, have been reckless and irresponsible beyond imagining. At week’s end, Speaker Boehner thought it necessary to demand that both Houses of Congress pass and send to the states for ratification a so-called balanced-budget amendment to the Constitution. Though doomed from the start, the amendment in its purest form offers an insight into the dystopian vision of America proffered by one of our two major political parties. The budget would have to be balanced every year, regardless of economic conditions. Annual spending would be permanently capped at 18% of the prior year’s gross domestic product, a level last achieved in 1956. To exceed the cap—or to levy a new tax, or to raise (though not to cut) an existing one—would take a two-thirds supermajority of the full membership of both Houses of Congress. That’s more than Congress needs to declare war, more than the House needs to impeach a President, more, even, than the Senate needs to end a filibuster. Astonishingly, it’s more than Congress needs to approve amending the Constitution itself, which requires two-thirds only of those present and voting.
The difference between yesterday’s Republicans and today’s is the difference between Wade’s Fourteenth Amendment and Boehner’s proposed Twenty-eighth. Benjamin Wade was called a Radical Republican. In fact, he proudly called himself one, and he had earned the title: far ahead of his time, he was a passionate advocate of women’s suffrage, the rights of labor, and absolute civic equality for black Americans. His Republican successors in Congress call themselves conservatives, but they, most of them, are radicals, too. Just not in a good way. ♦
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