Justice Oliver Wendell Holmes' two-paragraph dissent in Lochner v. New York does not grapple with the question: what does the 14th Amendment enact?
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.