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Frustrated over the debt ceiling negotiations, a group of Democratic Senators have now discovered that the debt ceiling violates the Constitution!
It’s a little late in the day — one might think — to make that discovery. The debt ceiling has been around an awfully long time, without constitutional challenge. When Law Professor/Senator Obama voted against increasing the debt ceiling 2006, he expressed no doubt about the validity of the ceiling itself. So what gives?
Last month, the Atlantic ran this piece by Garret Epps arguing that the debt ceiling (or at least the failure to increase the ceiling) violates the 14th Amendment. Section 4 of the 14th Amendment provides ”The validity of the public debt of the United States, authorized by law… shall not be questioned.” The provision was inserted in there because (this was Reconstruction, remember) the North feared that Southerners would regain the political upper hand and renege on the debts piled up to defeat the Confederacy.
According to Epps, “it’s not hard to argue” that the language of the 14th Amendment requires that the nation’s debts be paid in full and on time. Ergo, any mechanism that might prevent a full and timely payments is unconstitutional. Democrats have seized on this argument. But as Epps points out in the next paragraph of his piece, an equally plausible argument [in fact, a far stronger argument] is that the amendment simply means what it says: the federal government cannot “question” the “validity” of its debts, ie, it cannot repudiate its debts. And the debt ceiling is not a repudiation of any debt — it simply puts a limit on how much debt we can rack up. If we run up against the debt ceiling, we may have to slash spending, or sell assets, or even temporarily default on some debts – but none of those things means that we have questioned the validity of our debts.
So in case you thought that the Democrats had actually discovered the real Constitution, I’m afraid it’s the same old Living Constitution that they always rely on.