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At Least Go All the Way And Use “Strict Constructionist”!

[ 46 ] July 8, 2011 |

If you’ve been waiting for Ann Althouse to enter the debate about the constitutionality of the debt ceiling, you’re in luck! If you want to learn something, well, you’re crazy.   And you’re also out of luck, since her response is written in Vacuous Wingnut Buzzword rather than English. Her addition to Laurence Tribe’s op-ed, in its entirety:

Oh, how ploddingly boring Professor Tribe is! Vividly creative lawprofs have perceived that the 14th Amendment transformed the President into a dictator, and here comes Tribe with his gigantic wet blanket of case citations and constitutional texts. So wooden and formalistic!

The Constitution is alive! Have you not heard? A seed has been found: the public debt clause. It has fabulous growth potential. It had life from the moment these legal geniuses inseminated that ovum of constitutional text. And you would snuff out their brilliant conception? Heartless! That is so lacking in… empathy.

The first thing you’ll notice is that there’s nothing particularly “formalistic” about Tribe’s analysis (which isn’t an insult.) He cites the same constitutional text as everyone else involved in the debate, and the “case citations” consist of exactly one cite that says nothing either way about whether the debt ceiling law is consistent with the 14th Amendment. His argument is powerful — certainly the strongest argument skeptics have — but it’s based primarily on inferences from the structure of the text and a pragmatic argument about the aggrandizement of executive power.

Althouse, needless to say, doesn’t cite the constitutional theorists who are allegedly using “empathy” as the primary basis for an argument that the debt ceiling is unconstitutional. If you examine Jack Balkin’s analysis (1,2,3) , however, you’ll note that it’s based on a careful reading of constitutional text and history, and is more “originalist” than “living constitutionalist” (although in Balkin’s view this is a false dichotomy.) Whether or not one finds it persuasive, it’s if anything more “formalistic” than Tribe’s.

One may find one of the arguments more or less persuasive, but like most constitutional questions of any interest the constitutionality of the debt ceiling isn’t a technical question that can be answered merely by citing the constitutional text, let alone argument by string-of-empty-catchphrases.


Comments (46)

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  1. howard says:

    scott, every time you force me to read some althouse, i draw the same conclusion: “she teaches people? how did that happen?”

  2. Davis X. Machina says:

    I blame Refrigerator Poetry Magnets. They ought to be at least as hard as handguns to get.

    • Scott Lemieux says:

      Yeah, Althouse should help design and market a Federalist Society version. In addition to the ones above, I suggest “legislates from the bench,” “penumbras and emanations,” and “The Federal Broccoli Consumption Act.”

  3. mark f says:

    There is something incredibly strange about a law professor complaining that an argument about the constitutionality of this or that is boring and full of case citations Ann Althouse.

    Someone in comments is talking about light bulbs and another guy is still complaining about Obama’s birthright.

    • Halloween Jack says:

      Althouse is still working the gambit of trying to look sane by having commenters that are crazier than she is. It still isn’t working, particularly since she married one.

  4. (A)gigantic wet blanket of case citations and constitutional texts. So wooden and formalistic!

    The bastard! What was he thinking?

  5. R. Porrofatto says:

    Althouse’s attempts at ridicule always have a kind of sneering College Republicans Still In Junior High quality about them, where something like this

    inseminated that ovum of constitutional text

    is what passes for wit.

    It’s as if she aspires to be a Mark LeVIN twerpette, if such a thing is even imaginable, only without the depth of his legal wisdom.

  6. Rick Massimo says:

    There’s a real stuck-pig quality to the roar over this whole issue. If Obama goes ahead and ignore the limit, it’ll end up in court and the Republicans can have the fun job of arguing retroactively that he should have allowed the U.S. to go into default. Same thing with their so-called threats to impeach.

  7. mpowell says:

    Yeah, I have a much simpler argument for why Obama should ignore the debt ceiling: Congress tells you to do not A and also tells you to do A. What do you do? Whatever the f*ck you want.

    Blowing off the debt ceiling is just the most sensible response option available to the executive. And for all those people complaining about the possible crisis consequences… wtf is good about having a debt ceiling in the first place? It can only bring pain of exactly this sort. Let’s establish that it means bumpkiss and move on to a more legitimate constitutional crisis. There’s no reason for this particular asinine law to bring down the republic.

    • Barack Obama says:

      My real goal is to fight for the same Corporate$ $$$$$$$ as the GOP. So that’s why I wont use the 14th amendment. This is the perfect excuse to implement the Sensible Center Right Village agenda of being Reasonable by ending SS and Medicare as we know it and getting the Corporation$ to donate to my campaign.

  8. Barack Obama says:

    When will you plebes realize that this is all show? I want to gut SS and Medicare. So do the Republicans. The debt ceiling is just Kabuki for you morons. My Village buddies and I, and Goldman Sachs, know the end game already. Suckers!

  9. Bill Murray says:

    Presidential Oath of Office

    I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

    so he should place a constitutional amendment over a law to be consistent with his oath

    • Murc says:

      You mean, the same constitutional amendment that specifically refers only to debts that are authorized by law?

      • mds says:

        Well, in one sense the debts are authorized by law, since the borrowing is required to fund already-enacted spending. Hence mpowell’s reference to A and not-A: the existing obligations that require additional borrowing to meet are the result of Congressional action, and yet Congress has so-far refused to officially permit raising the debt ceiling to pay for them, instead taking the public debt hostage in exactly the manner the crafters of Section 4 feared. That’s why the GOP leadership is demanding draconian spending cuts in exchange for raising the debt ceiling, because only mouthbreathing dumbshits like Paul Broun and some of his fellow Teabag Taliban think that it’s possible to enact immediate spending cuts that will remove the need to raise it.

        • Murc says:

          Hmm, I had not thought about it in those precise terms. Is ALL government spending debt, though? Doesn’t debt have a well-defined legal definition in both criminal and civil law?

          My laymans understanding of the situation, and please, someone correct me here, is that we’re not constitutionally allowed to default on our debts if at all possible; that is, the debt obligations of the U.S government have first claim on all of said governments revenue, so long as said revenue actually exists.

          My understanding is also that the Treasury Department needs statutory authorization to issue debt at all, though not to pay off the holders of said debt; the later is constitutionally required and trumps legislation, the former does not.

  10. Althouse hates law. It’s indoor work though, and she has not talent or inclination to do anything else, so until this blogging thing starts paying some coin she’ll stick with forming impressionable young minds.

  11. mb says:

    I want to know what happened to “the Constitution is not a suicide pact?” The 2nd Amendment looks like it says I can haz a nuke. But I heard Obama wants to stop everybody from having their own ICBM since the “Constitution is not a suicide pact.”

    This situation the know-nothins are forcin’ feels suicidal to me, therefore the non-suicide-pact nature of the Constitution should come into play.

    Otherwise, I want a nuke.

  12. DrDick says:

    Having read that passage from Althouse, I think she is rather more of a strict deconstructionist.

  13. Hogan says:

    Is it feeding the troll to tell commenter “Barack Obama” that his schtick is embarrassingly bad, his verbal abuse of JfL is repetitive and pointless, and he’d make a better impression by posting random Simpsons quotes?

    In other counter-trolling news, I counted 36 comments by the Troll of Many Dots, and 13 responses that were not variations of “DNFTT.” (You know who you are.) Jobs with Justice is up $29.50 on the week.

    • Uncle Kvetch says:

      Is it feeding the troll to tell commenter “Barack Obama” that his schtick is embarrassingly bad, his verbal abuse of JfL is repetitive and pointless, and he’d make a better impression by posting random Simpsons quotes?

      Yes. It’s obviously Norm/Harry/Al/whatever and it should be ignored.

  14. the corpratists says:

    Pledge of Allegiance? WE don’t need no stinking pledge of allegiance!

  15. Walt says:

    I don’t understand how this debt ceiling suppose to work. The executive branch doesn’t normally have unilateral discretion to decide which appropriations get spent, right? So why would they when the debt ceiling is breached?

    • Murc says:

      This is just me spitballing here, but generic government spending is statutory. Congress passes a law that says X amount of dollars will be spent on Y things this year.

      That law is just a law. The CONSTITUTION says our debt gets serviced first. Ordinarily this isn’t a problem, our credit rating is rock solid and taxes + newly issued debt cover all of our outstanding expenses.

      If the amount of debt we can issue is breached, suddenly there isn’t enough cash to go around. The President is obligated to obey the Constitution before he obeys the law. So he has to take money that was appropriated for other things and use it to service our debt. Absent direction from Congress on this he can just take it from wherever the hell he wants.

  16. McKingford says:

    I subscribe to the thinking espoused by mpowell. Congress has, in approving the 2011 budget, implicitly endorsed the debt financing required to make it work. The debt limit is therefore superfluous.

    • Bill Murray says:

      didn’t recent previous budgets include automatically increasing the debt ceiling to pay for the budget as enacted? Wasn’t that one of the big things the idiots Republicans do?

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