Wednesday, June 29, 2011
The provision of the Fourteenth Amendment that is being raised in the context of debt ceiling debates in Congress is section 4:
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.
Generally, of course, it is section 1 of the Fourteenth Amendment - - - with the due process clause and the equal protection clause - - - that garners all the attention and litigation. But there are arguments that section 4 would make any Congressional assertion of a "debt ceiling" unconstitutional.
Professor Garret Epps has articulated the argument here and here; it's been gathering attention including a well-reasoned article in The New Republic which extensively relies upon Epps. Over at Slate, the argument is deemed a "gimmick."