As the debt ceiling fiasco continues unresolved and increasingly dangerous, with no agreement among the House, the Senate and the White House yet in sight, an obscure and forgotten constitutional clause has suddenly come under scrutiny. The Fourteenth Amendment, adopted after the Civil War, provides that "The validity of the public debt of the United States, authorized by law... shall not be questioned." Does that clause mean that it is unconstitutional for Congress to refuse to raise the debt ceiling -- the amount the nation is legally permitted to borrow -- in our present circumstances, and that the President is therefore constitutionally permitted to borrow money on his own authority? The present Congressional authority will expire on August 2; it is far from certain what will happen to our economy if that authority is not extended before then. It seems very likely, however, that if the president does not then act on his own the nation will default on its treasury bonds and other solemn legal obligations, including payments due millions of citizens under Social Security.
The "debt shall not be questioned" clause was added to the Fourteenth Amendment for a specific and immediate purpose: to prevent the new Southern members of Congress, should they gain a majority, from cancelling the debt the Union had incurred in the war. But constitutional interpretation is not a list of historical anecdotes; it is a matter of principle and we are therefore required to identify the principle on which the authors of the clause had to rely. As Chief Justice Hughes said of the clause in 1935, speaking for a unanimous Supreme Court, "While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle ... "
Keep reading this post at the NYRB Blog.