Now that President Obama has acquiesced to a fundamentally Republican plan to raise the debt ceiling, which means federal spending cuts that will contract the economy when it needs to be expanded, it may be worth pointing out a couple of Civil War connections to the whole fiasco.
One, of course, is the Fourteenth Amendment, much in the news lately as Obama rebuffed suggestions he invoke its clause that the “validity of the public debt of the United States, authorized by law . . . shall not be questioned” in order to keep paying the country’s bills no matter what the Congress did. In a position to need all the leverage in his fight with Congress that he could get, he threw this lever away and had his spokesman say that he didn’t think the amendment applied in this situation. He’s the constitutional scholar, not me, but there are plenty of other experts who thought he was wrong, and a look at why the clause was written suggests they might have been right.
The Fourteenth of course was one of the Reconstruction amendments, put into place as the states of the old Confederacy took their places again as part of the Union. Fearful that Southern federal legislators might someday acquire a voting majority in Congress and get it to vote to refuse to pay the U.S. war debt, or to take on some or all of the Confederate debt, Section Four—forbidding both—was included in the amendment. That is to say, one explicit reason it was written was to prevent Congress from taking a vote that would prevent the federal government from paying its bills.
How is that different from the recent situation? I dunno, but the question brings us to the other Civil War connection. Obama’s hero Lincoln more than once took executive action that he believed crucially important to the nation even when he couldn’t have sworn he had a winning argument for the Supreme Court were he to be challenged there. His biggest gamble was the Emancipation Proclamation itself. He knew that as Commander in Chief of the military during a time of armed rebellion, he had the military right to seize private property that was necessary to the war effort, and that the legal status of enslaved blacks as property meant that he could seize them from their owners. But with all other types of property, after the military necessity has passed, the property is returned to its owner. The Proclamation declared that the slaves under its jurisdiction were “forever free,” which was essential but constitutionally suspect. If, after the war was over, a plantation owner whose slaves had been emancipated were to sue the federal government for their return as property, and fought the case all the way up to substantially the same Supreme Court that had issued the Dred Scott decision, the odds might well have been good he’d be given his slaves back. Lincoln might not have had the authority to make emancipation permanent.
He was aware of this, and worried about it. Thankfully, we’ll never know how that hypothetical former slave-owner’s case would have turned out, because Lincoln rushed to send to the states the Thirteenth Amendment outlawing slavery; its ratification meant the Proclamation’s full legality never had to be tested.
We’ll also never know if the Fourteenth Amendment gambit would have cut the Gordian knot in the debt ceiling crisis, because Obama declined to find out.
Lincoln's courage is part of his greatness. Obama, a profile in caution, cannot plausibly have been worried that he might be successfully impeached for continuing to uphold the nation's credit by paying its bills. John B. Judis of The New Republic has an article online headlined "If Obama Likes Lincoln So Much, He Should Start Acting Like Him." Well, yes.
