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Explainer: Does the 14th Amendment Say the Debt Ceiling is Unconstitutional?

Thursday, July 07, 2011

As the fight over the debt limit rages on in DC, some have been questioning whether the whole concept of a debt limit might not be unconstitutional. Treasury Secretary Timothy Geithner has implied that President Obama might be able to push through an extension of the debt ceiling based on an interpretation of the Fourteenth Amendment.

In case you don’t remember off-hand which part of the Fourteenth amendment refers to the debt ceiling, here is the text of Section Four:

“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.”

Why, you ask, is there a conversation to be found about the validity of public debt in the 14th amendment in the first place? Yale law professor Jack Balkin told Firedoglake that the section originally addressed Confederate debt, but was expanded during debate “to prevent future majorities in Congress from repudiating the federal debt to gain political advantage, to seek political revenge, or to try to disavow previous financial obligations because of changed policy priorities.”

Several Republican members of congress have vowed not to vote to raise the debt limit unless the administration will agree to massive cuts in entitlements and services, with some even threatening a filibuster if it does pass the House. Many Republicans were elected on a platform of intransigent fiscal austerity, and could face opposition from the Tea Party in the primaries if they don't continue to hold the opposition.

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Comments [3]

Verna Coffman

We have worked all our lives and paid into the social Security, it is not a handout, it belongs to us the working retired, do not taKE IT away now that we cannot work now and need it, it was from the wealthy and other things that are not necessary, like aid to foreign countries while the USA goes downhill. President Obama, stand up for us now, don;t let
Boehner push you around.

Jul. 31 2011 03:23 AM
Thank You

Thank you for taking your time to write this.

Jul. 30 2011 11:22 PM
Jeffrey from Upper West Side


Of course the debt ceiling is unconstitutional. The 14th Amendment has only been interpreted once by the Supreme Court, in 1935, in Perry v. U.S. Here is Chief Justice C. E. Hughes writing the opinion of the court:

...
the government seems to deduce the proposition that when, with adequate authority, the government borrows money and pledges the credit of the United States, it is free to ignore that pledge and alter the terms of its obligations in case a later Congress finds their fulfillment inconvenient.

...
The contention necessarily imports that the Congress can disregard the obligations of the government at its discretion, and that, when the government borrows money, the credit of the United States is an illusory pledge.

We do not so read the Constitution.

...
By virtue of the power to borrow money 'on the credit of the United States,' the Congress is authorized to pledge that credit as an assurance of payment as stipulated, as the highest assurance the government can give, its plighted faith. To say that the Congress may withdraw or ignore that pledge is to assume that the Constitution contemplates a vain promise; a pledge having no other sanction than the pleasure and convenience of the pledgor. This Court has given no sanction to such a conception of the obligations of our government.

...
No doubt there was in March, 1933, great need of economy. In the administration of all government business economy had become urgent because of lessened revenues and the heavy obligations to be issued in the hope of relieving widespread distress. Congress was free to reduce gratuities deemed excessive. But Congress was without power to reduce expenditures by abrogating contractual obligations of the United States. To abrogate contracts, in the attempt to lessen government expenditure, would be not the practice of economy, but an act of repudiation.'

...
The Constitution gives to the Congress the power to borrow money on the credit of the United States, an unqualified power, a power vital to the government, upon which in an extremity its very life may depend. The binding quality of the promise of the United States is of the essence of the credit which is so pledged. Having this power to authorize the issue of definite obligations for the payment of money borrowed, the Congress has not been vested with authority to alter or destroy those obligations.

...
The Fourteenth Amendment, in its fourth section, explicitly declares: 'The validity of the public debt of the United States, authorized by law , ... shall not be questioned.' We regard it as confirmatory of a fundamental principle.... Nor can we perceive any reason for not considering the expression 'the validity of the public debt' as embracing whatever concerns the integrity of the public obligations.

[http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=294&invol=330]

Case closed.

Jul. 08 2011 06:01 AM

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