36 Pages Posted: 10 Mar 2013 Last revised: 3 Oct 2013
Date Written: September 24, 2013
The conflict between Congress and the President over the federal debt ceiling during the summer of 2011 ignited a constitutional controversy regarding a relatively obscure provision in the Fourteenth Amendment: the first sentence of Section 4. It provides that “the validity of the public debt...shall not be questioned.” Several prominent constitutional scholars insist that this provision has a broad meaning that gives the President power to raise the debt ceiling unilaterally to prevent default on federal government debt. None of their arguments, however, address the original public meaning of Section 4 even though many progressive and conservative scholars agree that the original public meaning of a constitutional provision should be the starting point in constitutional interpretation. This Note will provide the first scholarly account of the original public meaning of the first sentence of Section 4 and argue that the original public meaning of the provision does not allow for the broad interpretation it has been given. The statement in the first sentence of Section 4 that “the validity of the public debt...shall not be questioned” had the original public meaning of prohibiting direct governmental debt repudiation only. This language echoes technical legal language from the 19th century that possessed a very specific meaning. The definition of “to question” from contemporary dictionaries also confirms that the first sentence has a very specific original meaning. Finally, the history surrounding Section 4 supports this understanding of the original meaning of the first sentence. This Note also provides a brief separate argument for favoring a narrow interpretation of the first sentence based on the Constitution’s assignment of borrowing power to Congress.
Keywords: Public Debt Clause, original meaning, original public meaning, Fourteenth Amendment, Section 4, originalism, public debt, debt ceiling
Suggested Citation: Suggested Citation
McCommas, Stuart, Forgotten But Not Lost: The Original Public Meaning of Section 4 of the Fourteenth Amendment (September 24, 2013). Virginia Law Review, Vol. 99, No. 6, 2013. Available at SSRN: https://ssrn.com/abstract=2223836