In the New York Times, Princeton historian Sean Wilentz: Obama and the Debt (arguing that refusing to raise the debt ceiling “would violate [a] ‘fundamental principle’ of the Constitution” and that the President “in times of national crisis, can invoke emergency power to protect the Constitution” by, in this case, borrowing on his own authority.)
(Thanks to Michael Perry for the pointer).
I have some comments, none of them complimentary. So I’ll start by saying that Professor Wilentz is a great historian and everyone should, at minimum, read his Bancroft-award-winning The Rise of American Democracy: From Jefferson to Lincoln (W.W. Norton, 2006).
Now for the comments:
1. Wilentz asserts the meaning of Section 4 of the Fourteenth Amendment, chiefly by looking at drafting and ratifying history, prominently quoting Republican leader Benjamin Wade, and referring to the beliefs and motivations of other principal drafters. In sum, this is the original meaning of the Fourteenth Amendment. Apparently Sean Wilentz is an originalist!
But wait, I thought historians denied the very foundations of originalism, claiming that history cannot be used to establish fixed meanings. Is there actually some deep split among leading historians regarding the use of history? (See alsohere, in which the great historian Joseph Ellis appears certain of the historical meaning of the Second Amendment). Or do historians’ doubts about the coherence of originalism only apply when it’s done by law professors, or by conservatives?
2. Professor Wilentz’s history doesn’t show what he thinks it shows. He completely misses the distinction between “repudiating” a debt (which is what Senator Wade said he was worried about) and temporarily failing to pay a recognized debt, which is (at most) what might be thought to be at stake in the present circumstances. (For an example of what repudiating a debt looks like, consider on-going events relating to Argentina). Further, he assumes that failing to raise the debt ceiling would cause a temporary inability to pay the debt — something that has been widely questioned, including here and here by John Hinderaker.
3. As to emergency powers, Wilentz invokes and quotes Lincoln:
Lincoln … had some choice words in 1860 for Southern fire-eaters who charged that he, and not they, would be to blame for secession if he refused to compromise over the extension of slavery: “A highwayman holds a pistol to my ear, and mutters through his teeth, ‘Stand and deliver, or I shall kill you, and then you will be a murderer!’ ”
But as Wilentz surely knows (and indeed makes clear), this quote has nothing to do with exercising emergency executive powers. The question was whether secession should be blamed on Lincoln’s failure to compromise rhetorically — Lincoln himself did not (in 1860) claim to have any emergency power to halt the spread of slavery. So while the quote might (depending on how one looks at the current situation) have relevance to the political and moral aspects of the debt ceiling, it has nothing to do with the legal aspects.
Of course there is a Lincoln precedent closely related to what Wilentz is arguing: Lincoln’s unilateral suspension of habeas corpus in the early weeks of the Civil War. Wilentz does not invoke that precedent, even though it is directly on point (or at least, it would be on point if failing to raise the debt ceiling would provoke a national emergency, which I doubt). I suspect there are several reasons he avoids it. First, many scholars of executive power (including me — see pp. 107-08 of The Constitution’s Text in Foreign Affairs) think Lincoln acted unconstitutionally on this point. The Constitution’s text manifestly does not contain an emergency power clause (unlike some other Constitutions), and to the contrary it insists (in Article II, Section 3) that the President must follow the law. It is not clear that the precedent is a persuasive one, at least as a matter of original meaning.
More importantly, thinking in terms of Lincoln’s habeas corpus precedent makes clear what embracing emergency executive power would mean. Many things for which President George W. Bush was strongly criticized, including detentions without habeas corpus, can be justified as exercises of emergency power (if you believe in emergency power). I doubt Professor Wilentz was a vocal defender of President Bush. Yet here he plays the role of John Yoo.
4. In this article and others, I’m astounded by the number of people who seem affirmatively to relish a constitutional crisis. Wilentz sharply criticizes the President for not preemptively asserting his emergency powers. It seems to me instead that President Obama has acted with appropriate caution, even if one thinks there are some constitutional or extra-constitutional executive emergency powers. The Lincoln precedent, even if justified, arose from extraordinary circumstances (there was genuine fear that Southern sympathizers might seize or cut off Washington in the midst of the war). We are far from sure that anything deeply problematic would arise from failure to raise the ceiling, much less that it would approach the existential threat Lincoln faced. The sort of constitutional crisis that Wilentz wants to provoke, in contrast, would do lasting damage and irreparable damage to the rule of law. The real problem with emergency executive power is not that it gets invoked in true emergencies; it’s that, once it gains a foothold, it gets invoked in pseudo-emergencies.
FURTHER: Matthew Franck has related thoughts on the Wilentz piece at NRO. Plus a point-by-point response to Wilentz and others from Jeremy R. Hammond: The Ludicrous 14th Amendment Solution to the Debt Ceiling Crisis.
NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.