If I had a chance I would wallow in US constitutional law for no other goal than to enjoy how the flow if words can be used and misused and wondered upon. Consider the fourth section of the 14th Amendment brought in after the US Civil War. It has an interesting application - of some sort - today:
...It is inconsistent with the political context that produced Section 4, because it would not give the Republicans the sort of assurances they needed. We should interpret section 4 so that it solved the political problems that the Republicans wanted to solve. If our proposed interpretation does not solve those problems, it is very likely that we have picked the wrong reading. I begin with the assumption that the central purpose of section 4 was to prevent the Democrats, once they regained political power, from repudiating the Union debt-- including pensions and bounties. To use my colleague Jed Rubenfeld's language, this was the "paradigm case" of what Section 4 prohibited. But what if the Democrats did not officially repudiate the Union debt but but merely chose (or threatened) not to repay it?
Flip the Democrats and Republicans and more it 145 years into the future and we are looking at today's news: "The Obama administration and congressional leaders are working to complete a deal on a long-term budget reduction package..." So, if the talks fail and a default on the debt occurs, is that the "questioning" that the section refers to? "Questioning?" What a horrible word to place in a constitution. Questioning occurs before there are facts known. I question my kid when I find his room overly messy. I question claims made my individually wrapped snacks as to their healthiness. What the heck does "shall not be questioned" when placed in a constitution?
Comments
Joel - July 6, 2011 9:47 AM
What an excellent point you have made here. Again, it is my Canadian friend who most clearly sees past all of the pathetic Washington BS to make sense of things in our broken government. David Brooks' column in the NY Times on Monday also made some great points regarding the dysfunction.
Ben (The Tiger) - July 6, 2011 10:05 AM
The Dems are trying to argue that debt ceiling is irrelevant, because the Republicans are trying to use it (putting conditions on raising it) as a cudgel to extract spending cuts from the White House.
The Dems say, "Why aren't you compromising?" The Reps say, "When we had those compromises in 1983 and 1990, 'tax hikes for spending cuts', the tax hikes came but the spending cuts never did... Fool me once, shame on you; fool me twice, shame on me; fool me three times -- what the hell do you think I am?!"
Anyway. That's life.
Alan - July 6, 2011 10:27 AM
That is the stances the parties take. Neither expresses the constitutional implication of their stance.
It would be most excellent if the President issued an executive order stating that the public debt has been "questioned" by Congress and is therefore in violation of the 14th Amendment so he raises the debt ceiling thought the executive authority.
Ben (The Tiger) - July 6, 2011 11:16 AM
I'm pretty sure that's where he's heading. Otherwise, we'd never have heard of this possible interpretation of the 14th amendment.
Alan - July 6, 2011 11:32 AM
Oh, like so many provisions of constitutions, they lay out there waiting for moments like this, waiting for moments when short sighted leaders of the present cross far sighted leaders of the past.
Ben (The Tiger) - July 6, 2011 2:12 PM
We may yet see whether that is the view of the courts.
I doubt it, myself -- some sort of deal will be reached at the 11th hour.