Fomenting Crisis, Forsaking the Constitution

Of all the vapidities behind the claim that President Obama can invoke the 14th Amendment to raise the debt ceiling unilaterally, the crowning asininity must be the comparison of this to the Civil War and of him to Lincoln.

Lincoln himself tried to warn us that the greatest threat to liberty in future generations would be demagogues trying to play Lincoln when the times did not require it. Burke, for his part, tried to tell us that exceptions—and the Civil War was most certainly that—were not rules.

Sean Wilentz evidently got neither memo before writing an op-ed in the New York Times urging the President, who to his credit has rejected such calls, to “invok[e] the Constitution in this emergency.” By this Wilentz at first seemed to mean the debt clause of the 14th amendment—except that, to pay careful attention to his argument, he didn’t.

The Fourteenth Amendment does indeed insist that the debt of the nation “shall not be questioned.” The sleight-of-hand in this argument is the claim that this means the President is somehow unilaterally empowered to raise the revenue needed to pay it. Note that: he can not merely pay the debt by prioritizing expenditures, which itself would be an act of prerogative, but also collect the money to do so. (If he can raise the debt ceiling on his own for this purpose, can he raise taxes too?)

But Wilentz acknowledges this problem, pivoting instead to the nebulous specter of crisis: “But arguing that the president lacks authority under the amendment to halt a default does not mean the executive lacks any authority in the matter. As Abraham Lincoln well knew, the executive, in times of national crisis, can invoke emergency powers to protect the Constitution.”

Now, how precisely “the Constitution” is at stake is unclear. The best that could be said is that two Constitutional provisions—that Congress alone can borrow on the credit of the United States and that Congress must pay its debts—are in tension: nothing new. The union is not dissolving; shots have not been fired on a federal fort.

Never mind. What is really going on here is the quest for an executive protector to rescue us from the ugly, irrational and—perish the thought—unscientific phenomenon known as “politics.” This has been a persistent pursuit of the Progressive movement since the days of Woodrow Wilson. Add the historian’s appetite for the “great man” and it dates at least to Andrew Jackson, whose legacy Wilentz also invokes.

Not coincidentally, this view routinely transposes relatively ordinary cases and emergencies, and, crucially, prerogative—the authority to act in the absence of law or even “against it,” as Locke said—and right. Prerogative, in the truest sense, is the equivalent of speeding on the way to the emergency room. The claim that the President actually has the lawful authority to raise the debt ceiling is like saying speed limits do not apply to Presidents.

Were, then, Obama justified in invoking “emergency powers,” they would be extra-constitutional, not constitutional, in nature. In any case, no such case for prerogative here obtains. The debt ceiling is a political problem, and politics—with all its messy clashing of ideas and interests—must resolve it. The fact is that if the people’s representatives—which is eventually to say the people—cannot figure out a way to govern, and if we must therefore turn to Caesars to save us, constitutionalism is doomed. Say what one will for Caesarism, but the honest case for it is forsaking the Constitution, not “invoking” it.

Greg Weiner

Greg Weiner is a contributing editor of Law and Liberty.

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  1. says

    An excellent post, thank you.

    A now-retired sociologist recently posed the following question:

    There is a small technical thing that bothers me around talk of government “defaulting.” Perhaps, something can help me with this. Suppose I own government debt; suppose I own a Treasury Bond for $1,000 coming due on October first. If the federal government fails to give me my money on October 1st but, instead hands me on an IOU confirming it owes me $1,000 that it will pay soon, how worried should I be? Is my landlord not going to accept the IOU? Is the bank going to toss it into the waste basket?

    After reading your post, Dr Weiner, I was wondering if you or some of your co-bloggers could answer his question. Thanks in advance.

    • Greg Weiner says

      I am very decidedly not an economist, but I suppose I would answer the question in the following way: Were I accepting low interest rates in exchange for the ironclad promise of the bond being paid when it comes due, I would expect it to be paid when it comes due. That’s the only reason I was willing to accept low rates when I otherwise could have done something more productive with the money. If the promise is no longer ironclad, I would expect higher rates next time around. So default is genuinely a serious economic/political problem. Crisis is probably not too strong a word. What it is not is a constitutional crisis. We need to keep that distinction in mind.

      • says

        Interesting, thanks. I’ve read the arguments of some economists who would reply that a default would actually be a very good thing for the economy. In the long run. For instance, a grad student in economics put forth the following argument in favor of a US government default:

        There are two basic options: 1) Continue to pay interest on the debt but quit running deficits since they can’t take on any more debt. 2) Either default or repudiate the debt (not pay bills already incurred) which would be followed by a pretty serious lack of lenders willing to buy U.S. bonds. Since either option prevents the government from continuing with deficit spending, both are effectively balanced budget amendments (though the second one shifts the burden of debt from future tax payers who may not have agreed to the spending to bond holders who voluntarily financed the government).

        Option 2 is less balanced in the short run but leads to stricter constraints in the long run. (Being part of the generation obliged to pay the debt I’m partial to option 2.)

        Is it at all possible, given that a default would emphatically put spending restraints on Washington, that the crisis many people fear from a default would not be that bad? I mean, are we talking people rioting in the streets or Congress having trouble paying off its debts?

  2. says

    Exceptions are necessary in order to provide a balance to the rules, lest they become such an onerous burden that they reduce all to automatons. Exceptions reveal that we are humans and flawed like our systems. It is amazing to think that the Constitution allows for exceptions….not contradictions. And enforcement of the rules only is as much a contradiction of the document as would be the extra-constitutional actions, if Mr. Obama were to invoke the emergency powers

    • says

      Dr Willingham, I was about to add an additional response to Greg’s post, when I read your response. “And enforcement of the rules only is as much a contradiction of the document…”. I understand what you were referring to w/Obama, but would you please explain (because I may be reading you wrongly) your leading sentence, above, referring to “enforcement…a contradiction of the document” as such?
      Respectfully, John

      • gabe says


        I think I see what the good doctor is saying: A dogmatic adherence to the rules in even the most dangerous of circumstances would be contrary to the notion of implied powers. However, I just don’t see this situation as rising to that level as Greg Weiner points out in his piece. (Although, we may want to take note of the armed Federal Marshals and Park Rangers accosting citizens as they attempt to enjoy public (doesn’t that mean us) lands. Just Kidding, boys).

        For a really good take down of the Progressive approach criticized above see:

        take care

        • says

          Gabe, thanks for sending me to that site. That reading is fantastic. Have you read Gamble’s: Wilsonian Slaughter
          By Richard Gamble • February 23, 2009 — speaks of Obama, and the world order, following the Wilsonian tradition.

  3. says

    Gabe, just type: Gamble’s: Wilsonian Slaughter into your search box and it will show it’s location. (If you have any kind of a problem…let me know.) I can help you w/that elsewhere.)

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