The Constitution is not a "suicide pact." So wrote Robert Jackson in 1949. Associate Justice of the United States Supreme Court, Chief-War Crimes Prosecutor at Nuremberg, Jackson may well have been among the wisest men or women to ever sit on America's highest tribunal.
His warning resonates today. For we are faced with a constitutional crisis the gravity of which is now coming clear. A group of Republicans, the tea party caucus, are this generation's Fire-Eaters. Like those Fire-Eaters who drove the momentum for Civil War in the 1850s, they would rather bring down the house than acknowledge that they cannot get their way. The Speaker of the House quails before these Fire-Eaters, too timorous for confrontation, content merely to whimper.
The Republican tea party caucus say they wish to negotiate. They propose to defund the Affordable Care Act as their price. But the democratic process has spoken. The Affordable Care Act is the law of the land. And as a federal entitlement program, like Social Security or Medicare, its costs are built into federal statutory law.
Nicholas Kristof has illustrated the absurdity of the tea party claims. Suppose, he wrote, President Obama informed Congress that if it failed to go along with him and enact single-payer health care, he would sink our aircraft carrier fleet, one-by-one, in the depths of the Mariana Trench.
The threat would be absurd and people would rightly conclude that the president had lost his moorings. But that is precisely what the tea partiers are threatening. In their own way, they seek to harm the interests of the American public just as grievously as the president would in Kristof's hypothetical.
Wise and responsible voices have suggested that it is the sheerest folly to threaten default on the nation's debt. The venerable sage of Omaha, Warren Buffett, has compared default to the use of nuclear weapons -- the consequences are too dreadful to contemplate. Mohamed el-Erian, the bond wizard from PIMCO, has described the effects of a default as amounting to "cascading failures" leading to "multiple defaults." It would dwarf the effects of the Lehman Brothers' default. And unlike the Lehman's default, there would be no American government to backstop or cushion the collapse.
The global effects would be far-reaching and would destroy America's standing in the world, perhaps irreversibly. The Chinese government has already issued an official warning, urging American policy-makers to realize that "the clock is ticking" and that China is concerned about the safety of its investments. The Japanese government, too, has acknowledged that it must begin to consider the risk of American default in its global financial investment strategies. Indeed, "nervous ripples" are spreading around the world, "from London to Bali."
When Justice Jackson penned that admonitory precept, he did so in the context of trying to resolve the consequences of a riot in the City of Chicago, provoked by a band of Fascist dead-enders in the days just after World War II. Taking nothing away from the gravity of that case, we are faced with an immeasurably worse crisis should we default.
It is possible that the crisis resolves itself in the next few days. We certainly hope that responsible Republicans -- and there are many -- step forward and confront their radical fringe. But barring that, President Obama needs to prepare to take action.
Professor Garrett Epps has pointed to the most efficient constitutional solution to the crisis. Section Four of the Fourteenth Amendment provides that "[t]he validity of the public debt of the United States . . . shall not be questioned." The context surrounding the drafting of this clause clearly contemplated a foreseeable threat to good order: the danger that Southern insurrectionists, defeated in Civil War, might seek to frustrate the payment of America's national debt if and when they should be returned to Congress.
The language of the Clause, however, is broader than its immediate context. It recognizes the legitimate interest all Americans have in the soundness of their monetary order. Carefully attentive to its language and its history, Professor Epps asserts that this Clause "makes clear that both the monies our nation owes to bondholders and the sums promised in legislation to those receiving pensions set by law from the federal government, must be paid regardless of the whims of the current congressional majority."
I would add two further points. The first is that the constitutionally-imposed oath in which the president swears to "protect, preserve and defend the Constitution of the United States" imposes upon him the duties of a constitutional interpreter. It is the president's responsibility to understand and to apply the Constitution in times of ambiguity and crisis, such as these. And I would assert, secondly, that Justice Jackson is right: The Constitution is not a suicide pact. It is a document whose clauses should always be understood to favor sound government and the preservation of the American democratic experiment. It must never be interpreted to permit a handful of congressional representatives, defeated legislatively, to hijack the process and wreak willful havoc.
I believe that the president can and should make the case that the debt ceiling which Congress sees fit to vote upon periodically is itself unconstitutional for being inconsistent with the Fourteenth Amendment. He should then direct the United States Department of Treasury to continue to honor all of our on-going obligations.
The political consequences should not be dire. The latest AP survey indicates that congressional approval is at 5 percent. In other words, support for Congress' behavior in this crisis is confined, with only slight exaggeration, to the friends and family of congressional members.
Furthermore, President Obama would not be treating the Constitution with disregard should he act in this manner. Article 4 of the Fourteenth Amendment is plain in its terms. The validity of the public debt is not to be questioned. It was drafted in circumstances similar to those confronting us today: namely, the fear that recalcitrant members of Congress might repudiate our obligations in order to get their way. The Fourteenth Amendment shows a clear pathway forward, and the President, as a last resort not only has the right, but the duty to invoke it.
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