Fourteenth Amendment, Section 4:

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. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

December 1865 saw the opening of the first session of the 39th Congress, the first since the Civil War’s end.1 In mid-December, the House and Senate resolved to establish a Joint Committee on Reconstruction (Joint Committee) to probe the condition of the former Confederate states.2 Among other topics, the Joint Committee investigated public sentiment in the southern states concerning public debts. It learned that voters in those states, who at the time lacked representation in Congress, would back repudiating—that is, refusing to pay—debts incurred by the federal government if permitted to resume seating congressional delegations.3 Some witnesses supported having the federal government assume debts of the Confederate States of America or of its constituent states.4 There was even “an expectation that compensation will be made for slaves emancipated and property destroyed during the war.” 5 These public sentiments concerned some in Congress,6 because southern states would likely see the ranks of their eventual congressional delegations in the House of Representatives increase due to changes in the apportionment processes that were then contemplated.7

The Joint Committee therefore recommended an amendment to the Constitution that, among other things, would have prohibited the United States or any state from paying either debts incurred in aid of war against the United States or claims seeking compensation for the loss of involuntary labor.8 During its Senate consideration, Sen. Benjamin Wade proposed broadening this proposal to also put debt incurred on the Union’s part “under the guardianship of the Constitution of the United States, so that a Congress cannot repudiate it.” 9 The text continued to evolve throughout its congressional consideration, with members offering legislative language bearing different descriptions of the types of federal debts and obligations the constitutional amendment would protect and the measure of protection afforded.10 Eventually, the 39th Congress proposed a Fourteenth Amendment that, in relevant part, directs that the validity of the public debt of the United States shall not be questioned and declares illegal and void debts or obligations incurred to aid insurrection against the United States or claims for compensation for the emancipation of slaves.11

Footnotes

1

Earlier, in March 1865, the 39th Congress briefly sat in special session. See, e.g., Cong. Globe, 39th Cong., Special Sess. 1424 (Mar. 4, 1865) (opening of week-long special session).

2

Cong. Globe, 39th Cong., 1st Sess. 38 (Dec. 13, 1865) (reflecting the House’s concurrence in the Senate amendment to the resolution establishing the Joint Committee on Reconstruction).

3

Joint Comm. on Reconstruction, 39th Cong., Report of the Joint Committee on Reconstruction xvii (1866) [hereinafter Joint Committee Report] (stating that “almost all” “witnesses examined as to the willingness of the people of the south” to contribute to payment of the national debt believed that “the people of the rebellious states would, if they should see a prospect of success, repudiate the national debt” ).

4

Joint Comm. on Reconstruction, 39th Cong., Report of the Joint Committee on Reconstruction, Pt. IV: Florida, Louisiana, and Texas 140 (1866) (testimony of newspaper correspondent that in certain southern states “a majority of the politicians and others seemed to be in favor of paying” the state debt but that support was more muted among other classes of southerners he encountered).

5

See Joint Committee Report, supra 3, at xvii.

6

These concerns were not, however, shared universally. Compare Cong. Globe, 39th Cong., 1st Sess. 2398 (May 5, 1866) (statement of Rep. Phelps) (arguing that it was “wholly imaginary” that southerners, who would have to pay “their share of Federal taxes” to service existing federal debt, would support assuming rebel debts), with id. at 2405 (statement of Rep. Ingersoll) (responding that there would be support in the South for federal assumption of rebel debts, as these were promises to disabled Confederate soldiers, widows, orphans, and other southerners who had “sacrificed their treasure and their blood” to support the rebel war cause).

7

The 39th Congress was then considering amending the Constitution to fully count formerly enslaved persons and their descendants in the apportionment of seats in the House of Representatives, in place of the original Constitution’s counting of such persons as three-fifths of a person. See Amdt14.S2.1 Overview of Apportionment of Representation.

8

See H.R. 543, 39th Cong. (1866); S. 292, 39th Cong. (1866); see also Benjamin B. Kendrick, The Journal of the Joint Committee of Fifteen on Reconstruction 114 (1914) (Joint Committee minutes of vote to simultaneously report proposed constitutional amendment to the House and Senate).

9

Cong. Globe, 39th Cong., 1st Sess. 2769 (May 23, 1866). In relevant part, Senator Wade’s proposal would have declared the “public debt of the United States” “inviolable.” id. at 2768.

10

Compare, e.g., id. (extending constitutional protection to the “public debt of the United States,” which would “includ[e]” debts or obligations incurred to suppress insurrection or in war in defense of the Union), with Cong. Globe, 39th Cong. 1st Sess. 2869 (May 29, 1866) (amendment offered by Senator Jacob Howard declaring that the “obligations of the United States incurred in suppressing insurrection, or in defense of the Union, or for payment of bounties or pensions incident thereto, shall remain inviolate,” leading to Senator Wade’s withdrawal of his earlier amendment).

11

U.S. Const. amend. XIV, § 4.