Friday, July 01, 2011

A (Modest) Apologia

Mark Tushnet

Brad DeLong is a very good economist, from whom I've learned a lot about the Great Depression and the Great Recession. And, he's a pretty good polemicist. But, he's not a lawyer, and has to rely on others for his legal arguments. His sources on the Section 4 argument aren't all that great.

The apologia: I should have realized that, incentives being what they are, you probably can find an argument for any constitutional proposition whatever made at a point when the argument had little political traction. I've now read Michael Abramowicz's article (available only on pay services, I believe), and he does approach, but doesn't quite make, the current Section 4 argument. His most direct argument is that a debt-ceiling statute is inconsistent with a constitutional amendment he proposes (a version of a Balanced Budget Amendment), and you can infer from his argument, and his presentation of the originalist material about Section 4, that he would have argued that debt ceiling legislation is currently unconstitutional had he thought it worth making. He does cite in a footnote two newspaper editorials from 1995 saying that "default on the debt would be unconstitutional," which isn't quite the point at issue. But, it is in the ballpark.

The Perry dictum is just that, a dictum from a plurality opinion, from which one can infer something about its author's possible views about debt ceiling legislation. For myself, neither the article nor the dictum constitutes a rebuttal to the argument that the Section 4 argument was "off the wall" six months ago. But, both do indicate that the materials were available then from which the Section 4 argument could be constructed, so my (modest) apologia.

But, to reiterate, the Section 4 argument, as I understand it, has to be coupled with a Take Care and Appropriations Clause argument to have any bearing on current issues. Standing alone, the pre-2011 materials say something about actual repudiation of the debt, but nothing, at least insofar as I've found them, about Treasury's priorities in allocating incoming tax revenues. And that, I think, is what the current issue is.

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