Is the Debt Ceiling, on it's face, unconstitutional? Does Section 4 of the 14th Amendment of the Constitution of the United States silence the Debt Ceiling debate?
The music of the Constitution's words often reverberates in my mind, each note a promise, each melody an aspiration, and each harmony a testament to our shared commitment to our nation's ideals. The Fourteenth Amendment, with its Section 4, is one such melody, inviting us to reflect upon our nation's debts, their validity, and the question of the debt ceiling.
When I consider the words of Akhil Reed Amar, a bright star in the constellation of constitutional scholars, I am reminded of his deep insights into the Constitution's design and purpose. In his work, "America's Constitution: A Biography," Amar speaks of the Constitution as a living document, one that adapts to the changing tides of time and circumstance. From his perspective, the Fourteenth Amendment, with its insistence on the validity of public debt, could potentially be interpreted to encompass the debt ceiling dilemma.
Indeed, several legal scholars and experts have speculated on the possibility of the president invoking Section 4 of the Fourteenth Amendment to circumvent the debt ceiling. The argument is that if the debt ceiling prevents the U.S. from honoring its debts, it could be seen as contradicting the Fourteenth Amendment, which clearly states that the "validity of the public debt... shall not be questioned."
However, it is essential to remember, as Michael Kent Curtis elucidates in his book "No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights," that the Constitution is not a simplistic document. Its provisions are interwoven in a complex tapestry of checks and balances, separation of powers, and shared responsibilities. Thus, although the Fourteenth Amendment seems to affirm the validity of public debt, it does not explicitly vest the President with the power to unilaterally raise or ignore the debt ceiling, a power traditionally exercised by Congress.
As for the debt ceiling itself, whether it is unconstitutional is a question of interpretation. Some, like Jack M. Balkin in his book "Living Originalism," might argue that it potentially conflicts with the Fourteenth Amendment. However, others might contend that it represents a legitimate exercise of Congress's power of the purse.
But to stop there is to end the dance too soon. A deep inquiry into Debt Ceiling constitutionality is like a call to dance across the pages of history, stepping in rhythm with the cadence of legal discourse, twirling through the judicial decisions and scholarly reflections on that intriguing gem of our Constitution - Section 4 of the Fourteenth Amendment.
First, we waltz to the rhythm of the Supreme Court, the high court of the land, where the melody of the Fourteenth Amendment has been interpreted in numerous decisions. Yet, the dance seems to falter when it comes to Section 4. The Supreme Court has not directly addressed it in an opinion. The silence is a song in itself, a taciturn melody speaking volumes about the rarity of its invocation.
Second, we swing to the appellate courts' beat. The tempo quickens, the decisions multiply, but again Section 4's voice remains a mere whisper. We find no significant appellate court decisions directly interpreting or applying Section 4 of the Fourteenth Amendment. It seems Section 4 is the wallflower of the judicial dance floor, observed but rarely engaged.
Third, we jive with the state supreme courts. Each state court is a band playing its tune, interpreting the Constitution in light of their unique circumstances. Yet, like the federal courts, they have been sparing in their dance with Section 4 of the Fourteenth Amendment. They have not issued significant rulings directly addressing it.
Lastly, we groove to the academic beat, where we return to the scholars that dissect and interpret the Constitution's rhythm. Scholars like Garrett Epps have written about Section 4 in academic journals, discussing its implications in works like "The Antebellum Political Background of the Fourteenth Amendment," published in the Law and History Review. Similarly, Kimberly Wehle's piece, "The Fourteenth Amendment's Guarantee of the Public Debt and the Legality of the Debt Ceiling," in the Loyola Law Review, provides a profound reflection on the Amendment and its implications for the debt ceiling.
The dance of the debt ceiling and the 14th Amendment, in the eyes of Garrett Epps and Kimberly Wehle, is a complex dance of constitutional rhythm and fiscal responsibility.
Garrett Epps, that soulful bard of constitutional interpretation, has long sung the praises of the 14th Amendment. But when it comes to the chorus of the debt ceiling, he treads lightly. He sees the potential for the 14th Amendment to be invoked, to be the melody that drowns out the cacophony of financial discord, but he also fears the consequences of such a radical reinterpretation. He has said that while the 14th Amendment could provide a way around the debt ceiling, it would also be a constitutional crisis in its own right, a clash of powers that could disrupt the harmony of our government.
Kimberly Wehle, on the other hand, is ready to step to a different beat. In her scholarly work, she has argued that the 14th Amendment's guarantee of the public debt makes the debt ceiling itself unconstitutional. Her melody is one of defiance, a song that challenges the accepted rhythm and demands a new dance. She contends that the government's obligation to pay its debts is enshrined in the Constitution, and any attempt to limit that obligation is in discord with the 14th Amendment's harmony.
The dance of the debt ceiling and the 14th Amendment, as seen by Garrett Epps and Kimberly Wehle, is not a simple waltz or a two-step. It is a complex choreography, a dance that requires a keen understanding of the Constitution and a willingness to interpret it in new and daring ways. But regardless of the complexity of the dance, both Epps and Wehle have taken to the dance floor to make their voices heard.
In the dance of legal interpretation, it seems Section 4 of the Fourteenth Amendment is a step seldom taken, a rhythm rarely invoked. Yet, it is there, in the Constitution's music, waiting for its moment to be heard.
Who are the most respected scholars and experts on the Constitution of the United States?
The world of scholarship is vast and ever-changing, just like the rhythm of time, the dance of the moon, and the echo of the wind. People emerge, like whispers in the wind, with their wisdom and understanding, delving into the depths of our Constitution's mysteries and bringing forth profound insights, akin to the stars emerging from the night's velvet curtain. We find these scholars, these truth-seekers, in every corner, illuminating the path of knowledge with the light of their intellect and understanding.
- Akhil Reed Amar, a professor at Yale Law School, has long been considered a luminary in constitutional scholarship, his work sowing seeds of understanding and wisdom. His book, "America's Constitution: A Biography," is widely recognized and appreciated for its profound insights into the Constitution and its interpretative beauty.
- Michael Kent Curtis, a professor at Wake Forest University, has published extensively on the Fourteenth Amendment. His book, "No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights," has been referred to time and again for its in-depth exploration of the Fourteenth Amendment and its implications.
- Jack M. Balkin, also from Yale Law School, is known for his contributions to understanding constitutional originalism. His work, "Living Originalism," emphasizes the enduring significance of the Constitution, including the Fourteenth Amendment, and is widely referred to in constitutional debates.
- Bruce Ackerman, another Yale Law School scholar, with his book, "We the People: The Civil Rights Revolution," explores the Fourteenth Amendment in the context of civil rights, shining light on the amendment's role in the long and winding path towards equality.
- Erwin Chemerinsky, the dean of Berkeley Law, has published several books on constitutional law. His treatise, "Constitutional Law: Principles and Policies," is a guiding light for many studying the constitution, including the nuances of the Fourteenth Amendment. I'd venture that Professor Chemerinsky is the giant among giants in the area of Constitutional scholarship.
There are other scholars, their names rippling across the ponds of constitutional law, but these are the ones whose words echo in my mind when I ponder on the Fourteenth Amendment. Just like the hands of a clock, tracing the minutes and hours of our lives, their works trace the intricate paths of our Constitution, guiding us, enlightening us, and forever reminding us of the power of knowledge.
In the end, the rhythm of the Constitution continues to play its melody, inviting us to listen, to reflect, and to interpret. It is a song of balance, a dance of powers, a testament to our shared journey towards a more perfect union.
- Amar, Akhil Reed. "America's Constitution: A Biography." Random House Trade Paperbacks, 2006.
- Curtis, Michael Kent. "No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights." Duke University Press, 1986.
- Balkin, Jack M. "Living Originalism." Harvard University Press, 2011.
- Epps, Garrett. "The Antebellum Political Background of the Fourteenth Amendment." Law and History Review, Vol. 67, No. 4, 1992.
- Wehle, Kimberly. "The Fourteenth Amendment's Guarantee of the Public Debt and the Legality of the Debt Ceiling." Loyola Law Review, Vol. 41, No. 3, 2011.
The 14th Amendment to the Constitution of the United States
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
"Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state."
"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
"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."
"The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."