The Constitutional Question

Hmm. Now this is interesting:

Growing increasingly pessimistic about the prospects for a deal that would raise the debt ceiling, Democratic senators are revisiting a solution to the crisis that rests on a simple proposition: The debt ceiling itself is unconstitutional.

“The validity of the public debt of the United States, authorized by law… shall not be questioned,” reads the 14th Amendment.

“This is an issue that’s been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default,” Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. “I don’t think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I’ll tell you that it’s going to get a pretty strong second look as a way of saying, ‘Is there some way to save us from ourselves?'”

By declaring the debt ceiling unconstitutional, the White House could continue to meet its financial obligations, leaving Tea Party-backed Republicans in the difficult position of arguing against the plain wording of the Constitution. Bipartisan negotiators are debating the size of the cuts, now in the trillions, that will come along with raising the debt ceiling.

It’s not just Democrats. Bruce Bartlett is among a small handful of conservatives arguing this case. And they may actually have a point. The debt ceiling has always been kind of an ad-hoc thing. It’s only in the last few years that it’s become a political issue. It would definitely require the Supreme Court to decide on the validity of the debt ceiling.

That having been said … let’s not go there. For one thing, this is an attempt by the Democrats to weasel out of balancing the budget. They don’t want to make the hard choices on spending. They would love to find a loophole allowing them to avoid making any choices.

For another thing, as the HuffPo notes, this is unlikely to save the economy if we crash the debt ceiling. If we’re sitting around having a Constitutional debate about the debt, the bond markets are going to get spooked anyway. Arguing the fine points of Constitutional Law while the economy crashes around our ears would be about as close to fiddling while Rome burns since … well, since Nero fiddled while Rome burned.

And, to be frank, this is a strange place for the Left to start getting originalist about the Constitution. They’re willing to take a “living breathing Constitution” attitude when it comes to states’ rights, enumerated powers, free speech, the right to bear arms, the commerce clause, eminent domain, freedom of religion, etc., etc. But suddenly, when it comes to debt, they’re a bunch of Antonin Scalias? Please.

I expect the line of argument to gain some ground, however. Eventually, Republicans may figure out this is a way to weasel out of having to eliminate tax deductions and credits to raise revenues. And if there’s one thing we’ve learned about Congress, it’s that they will always take the weasel route if they can.

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  1. InsipiD

    Nobody is questioning that the debt is valid, only that it needs to be increased. We borrowed the money and we owe it. it’s valid. The language of that amendment doesn’t appear to say that you have no right to be critical of the amount, nor that it should be uncontrolled.

    And if there’s one thing we’ve learned about Congress, it’s that they will always take the weasel route if they can.

    Increasingly, the Democrats’ version of this is to literally make their opposition illegal, as in this case. Why doesn’t anyone on the left seem to see that Obama Democrats are ruling by the old Nixon quote: “when the President does it, that means that it’s not illegal,” and extending it to congress as well?

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  2. hist_ed

    They are listening to themselves too much. Just because Dems say “We have to raise the debt ceiling-not doing so means we will default” doesn’t make it true. We could stop borrowing money and still pay the interest on the debt.

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  3. Hal_10000 *

    True, hist, But that means social security and military checks stop flowing. How the GOP thinks the will win that political fight is a mystery.

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