FABLES OF THE FOURTEENTH AMENDMENT
By Dr. Edwin Vieira, Jr., Ph.D., J.D.
August 13, 2011
The more I peruse the current public discourse about the application of the Fourteenth Amendment to the present quandary of public debt that confronts this country, the more I am convinced of the wisdom of the observation of the ancients that “Against human stupidity even the immortal gods contend in vain!”
The gist of the argument in favor of the Fourteenth Amendment’s positive application rests on the first sentence of Section 4 of the Amendment: “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.” Supposedly, this sentence grants a power to the President to borrow money in order to pay outstanding “public debt of the United States” as it comes due, even though Congress has not authorized such additional borrowing. Apparently the theory is that, if the President could not exercise this power, some of the debt would be unpaid at maturity, and therefore its “validity” would “be questioned”, in violation of the Amendment.
Now, the first suspicious peculiarity of this theory is its open-endedness. For public debt can be paid in ways other than by borrowing money (that is, Ponzi finance). It can also be paid through the collection and expenditure of taxes (real public finance). The Constitution delegates to Congress two relevant powers here: One is the power “[t]o borrow Money on the credit of the United States”. Article I, Section 8, Clause 2. Another is the power “[t]o lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States”. Article I, Section 8, Clause 1. The Constitution delegates no power “[t]o borrow Money” or “[t]o lay and collect Taxes” to the President. So, if Section 4 of the Fourteenth Amendment implicitly empowers the President to borrow so that “[t]he validity of the public debt of the United States * * * shall not be questioned”, it also implicitly empowers him to tax for that purpose! And, with a greater degree of apparent constitutional approval, too—because, unlike the power “[t]o borrow”, which says nothing about the use of borrowed funds to pay public debts, the power “[t]o lay and collect taxes” is explicitly tied “to pay[ing] the Debts * * * of the United States”.