Tuesday, November 15, 2011

Mea Culpa

Gerard N. Magliocca

During the debt ceiling showdown this summer, I argued that, in the event that the Treasury could not meet our debt obligations, the President would have the authority to borrow unilaterally to prevent a violation of Section Four of the Fourteenth Amendment, which says that "The validity of the public debt of the United States, authorized by law . . . shall not be questioned."

I've changed my mind. In revising this draft on the Gold Clause Cases, I reread the briefs in those cases that addressed the Section Four question and now feel confident that a temporary and relatively short suspension of bond payments cannot violate that provision because only a substantial default or repudiation is barred. The point that I failed to grasp was that the earlier Legal Tender Cases did not discuss Section Four, which is a telling omission because the changes in the monetary system in the late nineteenth century did injure bondholders. Feel free to download the draft if you want to read more.


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This is so exciting! Can't wait for the Special Friends edition.Thanks for the links big bro!I just want to say that you're doing a great job, keep it up!

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Thanks for posting this. Besides the substance, it's good to see scholars actively reconsidering their positions and acknowledging mistakes even when there's no partisan advantage in doing so.

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