Why Originalism Is Important

28 Jul

Welcome to another round of “let’s understand the US Constitution.”  There has been some discussion in the media lately about President Obama “invoking the 14th Amendment” to the US Constitution as a way to increase the debt ceiling with out going through Congress.  The specific article in question is this:

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.

Most of the news stories that I’ve read read this way, “The validity of the public debt… shall not be questioned.”  Others do a bit more thorough job, “The validity of the public debt…, including debts incurred for payment of pensions…, shall not be questioned.”  Both of these short cuts are misleading. 

This is why originialism is so important.  The 14th Amendment to the US Constitution is one of three amendments ratified shortly after the end of the American Civil War and the article clearly pertains to the debt incurred by the United States during the war and the debt incurred by the Confederate States during the war. 

Later when congress created the debt ceiling in 1941, it established a way to systematically authorize (and increase) debt by law.  Debt authorized by law remains valid and meets the requirements of the 14th Amendment.  Can the president just go around it?  I would argue that if he did, the debt he extended would not be viable because it was not authorized by law.  Article 1 Section 8 of the US Constitution clearly gives CONGRESS, not the president, authority “to borrow money on the credit of the United States.” The 14th Amendment does not take that authority from congress and give it to the president.

Is the debt ceiling constitutional?  That’s not the question here and could be discussed another time.  The 14th Amendment to the US Constitution, as will all other articles and amendments to the constitution, must be read from an orignialist perspective, meaning how the average person would have understood it at the time of its ratification.  If the US Constitution is a “living document” as many on the left proclaim, and the meanings of the words there contained change with time, what is the point of having a writing constitution?

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Posted by on July 28, 2011 in History, Language, Politics


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