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

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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.

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