Mark Tushnet's Claim That Nobody Worried About the Fourteenth Amendment and the Debt Ceiling Before November 2010: For the Virtual Green Room
Mark Tushnet wrote:
Balkinization: [L]iberals now appear to be trying to put an off-the-wall idea on the table... the idea that legislation setting a debt ceiling is unnecessary because of Section 4 of the Fourteenth Amendment.* Is that an off-the-wall argument? One test might be this: Can anyone locate any writing, preferably legal scholarship but even off-hand musings will do, making that argument prior to, say, November 5, 2010?
Rebutted by Gerard Magliocca:
In Perry v. United States, 294 U.S. 330, 354 (1935) the Supreme Court (in a plurality opinion by Chief Justice Hughes) said the following about this text:
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 which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the amendment was adopted. 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....
The statute, if interpreted to preclude the issuance of new debt to pay off old debt, may also violate the Public Credit Clause. In Perry, Chief Justice Hughes said:
The Constitution gives to the Congress the power to borrow money on the credit of the United States.... 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 to destroy those obligations...
In other words, the Public Credit Clause is an exception to the principle that one Congress cannot bind another through ordinary legislation.... Let me direct your attention to some other helpful sources. The first is Professor Abramowicz’s article on “Beyond Balanced Budgets: Fourteenth Amendment Style,” 33 Tulsa L. Rev. 561 (1997). The second would be the briefs in Perry. The third (to toot my own horn) is my draft paper on “The Gold Clause Cases and Constitutional Necessity.”