‘He has a point, Miss Harmon,’ Judge Morrow began, ‘doesn’t he?’
‘He has a point, Your Honour,’ Kiah replied. ‘Just not a good one.’
There was some laughter around the courtroom. Tomorrow smiled.
‘That depends on what you mean by “good”, doesn’t it? Mr Petrosian concedes that the government’s position is somewhat unattractive, but he says that’s irrelevant if the law is on his side. Why is he wrong about that?’
‘He’s wrong because, if he’s right, then Congress, by enacting a statute of limitations, has effectively repealed an article of our Constitution, the first paragraph of Article Six. Congress can’t repeal an article of our Constitution; the President can’t repeal an article of our Constitution; this court can’t do it; and for that matter, even the Supreme Court can’t do it. In fact, not even Mr Petrosian can repeal an article of our Constitution.’
This drew some loud laughter. I grinned. I deserved it after the cheesy faux compliment I’d paid her.
‘Well, there’s no arguing with that,’ the judge countered, ‘but why do you say they are repealing it?’
‘Because if they’re right, taking account of the statute of limitations, every claim under Article Six was forever barred as of March 3, 1893, at the latest.’
‘Why is that a problem?’
‘Because Article Six is not limited in time. It’s an indefinite constitutional obligation, and Congress can’t place a time limit on it retrospectively. Your Honour, maybe I should start with what the Founding Fathers were trying to do?’
‘It seems clear enough what the Founding Fathers were trying to do,’ Tomorrow replied. ‘They were telling everyone how important the war debt was, because they wanted to create confidence that the government would honour its obligations.’
‘Yes, Your Honour,’ Kiah replied, ‘but they were doing a lot more than that. They were trying to make sure that the debt was in fact repaid in full. That was something they couldn’t control. They couldn’t do it themselves. The country didn’t have the money at that time. We were essentially bankrupt. The currency was almost worthless. They knew it would be a long time before America became strong enough economically to pay the debt, and they knew there would be a temptation for future politicians and bureaucrats to find excuses for not paying.’
She paused to glance in my direction.
‘And how right they were.’
Further sniggers around the courtroom. I wasn’t entirely sure I deserved that one.
‘If we look at the language of the predecessor of Article Six, which was Article Twelve of the Articles of Confederation, adopted on March 1, 1781, they said this: “All bills of credit emitted, monies borrowed and debts contracted by or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for the payment and satisfaction whereof the said United States and the public faith are hereby solemnly pledged.”
‘I invite Your Honour’s attention particularly to the words, “The United States and the public faith are hereby solemnly pledged.”
‘Then we go to the first paragraph of Article Six of the Constitution, adopted on March 4, 1789, which is the provision we’re concerned with: “All Debts and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The magic words there, Your Honour, are, “Under this Constitution”.
‘Your Honour, these provisions were discussed in great depth before they were adopted. There was a high level of agreement about the proposed constitutional provision. We’ve covered this in our brief, beginning at page twenty-two, so I needn’t take Your Honour through it all. Among those who spoke and submitted drafts of the proposed provision were Mr Randolph of Virginia, Mr Paterson of New Jersey, and Mr Pinckney of South Carolina. The House appointed a committee of five members to prepare a final draft for approval.
‘But, Your Honour, this is important – this is at page twenty-six of our brief. Some members, including Mr Ellsworth of Connecticut, thought that the provision was unnecessary. He said: “The United States heretofore entered into engagements by Congress, who were their agents. They will hereafter be bound to fulfill them by their new agents.”
‘But Alexander Hamilton reminded the delegates that, in his words, “Contracts between a sovereign nation and individuals” – he means its citizens – “are binding only on the conscience of the sovereign and have no pretensions to a compulsive force.” In other words, he was worried that future politicians might be less scrupulous than Mr Ellsworth and himself.
‘So, enshrining in the Constitution itself a duty – a duty, not a mere power – to repay the public debt was the only way in which to guarantee that the United States would one day meet its obligations.’
Kiah paused for several sips of water.
‘Hamilton was very aware of the need to ensure that later governments didn’t renege on their obligations. He couldn’t foresee what economic and political pressures, what temptations to renege later governments might face, but he knew it was a real danger. In his second Report on the Public Credit, he wrote: “It can hardly happen that all the branches, or parts of government can be infected at one time with a common passion, or disposition, so manifestly inimical to justice and the public good, as to prostrate the public credit, by revoking a pledge, given to the creditors.” But in case they did, there was only one remedy. If you made the obligation part of the Constitution itself, you took it out of the hands of the government altogether, so even if all three branches of government were tempted to avoid responsibility, the debt remained valid and must be paid.’
Judge Morrow nodded.
‘All right, Miss Harmon, assuming I’m with you so far, you’ve established a moral case for making the government pay. But where do you get your legal case?’
She smiled.
‘Your Honour, that story starts with the blood-suckers.’