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07/01/2011

Originalism in the Blogs: Questioning the Public Debt
Michael Ramsey

Balkinization bloggers Jack Balkin (here), Gerard Magliocca (here) and Mark Tushnet (here and here) consider the emerging argument that Congress' possible refusal to raise the debt ceiling would violate the Constitution's public debt clause (section 4 of the Fourteenth Amendment). 

Garrett Epps launched the Section 4 argument here.

Since there's not much case law on point, this is another area where originalist arguments are likely to get substantial play.  I have serious doubts, though, that there are any persuasive textualist/originalist arguments against Congress' power. 

The clause says that the "public debt" of the United States "shall not be questioned," in contrast to debt "incurred in aid of insurrection or rebellion against the United States," which shall be "held illegal and void."  Thus the text's structure confirms the ordinary meaning of "question[ing]" debt – that is, denying its legality or validity.  As I understand it, no one in Congress is suggesting that the U.S. public debt is "illegal and void" – only, at most, that there be some delay in paying it.  If I fail to pay my mortgage, that doesn't mean I'm "questioning" my mortgage (unless I'm saying that the mortgage contract is invalid, for example because it was fraudulent).  It just means I'm breaching a valid contract, perhaps because I don't have the money to pay at the moment, and the bank has whatever practical and legal remedies it may have in case of default.

I haven't done the research necessary to see if the nineteenth-century meaning departs from the way the text appears to read, but I'd be surprised if it did.

UPDATE:  Nelson Lund points me to a series of excellent posts on this issue by Michael Stern at Point of Order.  Stern responds to the drafting history outlined by Jack Balkin in the post I noted earlier, and also asks: if the executive branch did violate the debt limit, is there any way to get a challenge into court?