While the new House GOP majority prepares for its Götterdämmerung, it might be time to raise our voices to speak a good word for original intent—for nothing could be more unconstitutional under the original 1787 Constitution than for Congress to use its powers to willfully default on the debt. Right now, in the name of original intent, the Biden administration should be in a friendly federal court seeking a declaratory judgment that the Debt Limit Statute cannot limit the obligation of the United States to continue borrowing to prevent a gratuitous default on its debt.
There is always the chance that the Biden administration will not prevail in the courts—but that doesn’t mean it can’t win. And win or lose, there is merit to be had in mounting a powerful case against debt ceiling brinkmanship, both under the original 1787 Constitution and under the Civil War Amendments. Besides, if it is not declared unconstitutional by a federal judge, those paychecks that federal judges currently enjoy may stop flowing into their bank accounts.
Let’s start not in the usual place: Section 4 of the Fourteenth Amendment, adopted in 1868, which refers to the validity of the public debt. Instead, let us start with Article I, Section 8: “The Congress shall have Power to Lay and Collect Taxes, Duties, Imposts, to pay the Debts and provide for the Common Defence and General Welfare of the United States; To borrow money on the credit of the United States.” (Emphasis added.)
For the Framers, the payment of the debt was an important factor in providing for the “Common Defence and General Welfare.” In Federalist Number 30, Hamilton explains that the power to tax and borrow is conferred on the new government only for the purpose of preventing a default or ensuring the payment of the debt. Article I is not open-ended but a grant of limited powers for specific purposes. If Hamilton is right, then it is a mistake to argue—as some legal scholars have—that the power to “borrow money on the credit of the United States” includes the “lesser” power of not paying the debt and willfully ruining the credit.
As with the power to tax, Congress has the power to borrow, only on the condition of its use to prevent a default. The power to tax and borrow conferred only to prevent a default cannot logically include a “lesser” power to then actively engineer a default. It would nullify the very purpose of Congress’s borrowing powers. As Hamilton argued in Federalist Number 30, “Who would lend to a government that would preface its overture for borrowing by an act which demonstrated that no reliance could be placed on the steadiness of its measure for paying for it?”