David Frum July 6th, 2011 at 11:30 pm 70 Comments
The obvious way to pay a public debt is not by borrowing more. The obvious way is by levying a tax.
So if the Fourteenth Amendment over-rides Article I, Section 8 giving Congress exclusive authority over borrowing, surely it must even more emphatically over-ride Article I, Section 7 giving Congress exclusive authority over taxation?
Yet that answer cannot be right! If there is a fundamental principle in the original 1787 Constitution, it is that the Executive depends on the Legislature for revenue.
Which means that we have to read the Fourteenth Amendment as conferring on creditors a guaranteed claim on the Treasury. But the Republicans are not “questioning” that. The immediate 44% cut in the federal budget that would follow from exhausting federal borrowing power may wreck the US economy. Yet that cut would still leave the Treasury enough resources to pay the creditors. So the public debt clause would remain unviolated.
Here’s another question that drives home the wrongness of the Balkin-Bartlett view. If the Fourteenth Amendment “shall not be questioned” language can over ride Sections 7 & 8 of Article I, can it also over-ride the First Amendment? What if an ex-Confederate official made a speech in 1872 urging the repudiation of the national debt. Let’s make it fancier: suppose he gave that speech on the floor of Congress, assuming he was protected by the Speech & Debate clause. Could Congress punish him for this “questioning”? And if the Speech & Debate clause and the First Amendment continue to exist independent of the 14th Amendment, why not Article I?
I wish the Constitution could save us from the debt-ceiling problem. It can’t. Only responsible compromise can do that.