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A lot of people are writing opinions saying that the 14th Amendment to the US constitution...

The validity of the public debt of the United States, authorized by law, ... shall not be questioned.

... forces the treasury to prioritize paying off debts over all other obligations (such as paying the military, for example).

Is there a real consensus among constitutional lawyers that this is the case?

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    This is a very good question. – Bobson Oct 22 '13 at 17:35
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(Skip to the bottom for the TL;DR answer.)

The validity of the public debt of the United States, authorized by law, ... shall not be questioned.

The term shall not be questioned (or the term questioned for that matter) occurs only twice in the US Constitution and its Amendments:

Section Six of Article 1:

The Senators and Representatives shall ... in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Section Four of Article 14:

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.

The first instance in Article 1 of 'shall not be questioned' obviously meant 'interrogation' - as in you literally can not ask questions.

The second instance in Article 14 of 'shall not be questioned' is about as grammatically sound as that comma in Article 2; and economically unsound because if it really means 'our public debt is valid' then it misunderstands what debt is.

Although the Perry v. United States case was mostly focused on the legal backing of the gradual move away from the gold standard, Chief Justice Charles Evans Hughes' tongue-lashing :-) of the government could as easy be interpreted as a lashing of debt abuse. Especially this statement (emphasis mine):

By virtue of the power to borrow money "on the credit of the United States," Congress is authorized to pledge that credit as assurance of payment as stipulated -- as the highest assurance the Government can give -- its plighted faith. To say that Congress may withdraw or ignore that pledge is to assume that the Constitution contemplates a vain promise, a pledge having no other sanction than the pleasure and convenience of the pledgor.

In lieu of a concrete law or a tidied up Amendment, the government can slip around the sides of Section 4, Article 14 regardless of whether constitutional scholars consider the section specific to the Civil War and future insurrections (that bothersome but neither conjunction) or general to all public debt. Because what someone rates a bond (its 'validity') is strongly decoupled from amount of lending and the amount of repayment.

Why? Well, to summarise and keep this a politics instead of an economics answer:

Government debt is not your grandma's debt. It has a permanent tax base, so in theory it can time-shift its debt obligations indefinitely - without even reducing the bond-rating by simply shifting the ratio of revenue spent on debt servicing versus every other obligation.

The bond owners (at least the short-sighted ones) don't care about that ratio, only that their interest and/or maturity has been paid; and thus the rating / validity of the debt is sound.

But as that ratio begins to void other obligations of the government, some of which are likely grounded in constitutional terms as strong or stronger than Section 4, Article 14, it may result in a reinterpretation of Section 4, Article 14 moving away from the Perry vs United States ruling.


TL;DR:

So my answer is: There isn't a consensus amongst constitutional scholars as otherwise this question wouldn't be arising both on the Internet and in Washington*. Such consensus will require either a judgement on Section 4, Article 14's authority and priority versus other Articles; or a revision or repeal of that section of that Amendment.

Monographs by lawyers won't cut it because of the inconsistency that Chief Justice Charles Evans Hughes observed.

* A post hoc ergo propter hoc cheat or an application of the anthropic principle. Other flavours of answer icecream, such as citing competing examples of partisan media bickering are also possible (and delicious).

  • This seems thorough. Do you perhaps have a reference where the different sides of the question are discussed? – DJClayworth Oct 22 '13 at 23:45
  • @DJClayworth Unfortunately no. As most of this debate is occurring in the media. – LateralFractal Oct 22 '13 at 23:47
  • Is there perhaps a balanced and reputable media article on the differing views? (Asking a lot, I know :-) ) – DJClayworth Oct 22 '13 at 23:48
  • @DJClayworth I might try looking for some later if I have the time. My answer was more of the deductive "they can't reach consensus" variety instead of the evidentiary "here's examples of bickering" variety. Both are valid answer so I'd personally like to see someone post an evidentiary flavour if they can. :-) – LateralFractal Oct 22 '13 at 23:50
  • No hurry. We have at least until January. – DJClayworth Oct 22 '13 at 23:54
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X shall not be questioned is an idiom that essentially means that X is always assumed to be true.

It doesn't mean literally that you can't ask questions about it.

In this case, it means that the debt of the United States shall always be valid, which implies that it should be paid.

There's a supreme court ruling: Perry Vs United States Which confirms that "validity of debt shall not be questioned" means that the United States CANNOT VOID IT'S DEBTS

The fact that the United States may not be sued without its consent is a matter of procedure which does not affect the legal and binding character of its contracts. While the Congress is under no duty to provide remedies through the courts, the contractual obligation still exists, and, despite infirmities of procedure, remains binding upon the conscience of the sovereign. Lynch v. United States, supra, pp. 292 U. S. 580-582.

The Fourteenth Amendment, in its fourth section, explicitly declares: "The validity of the public debt of the United States, authorized by law, . . . shall not be questioned." While this provision was undoubtedly inspired by the desire to put beyond question the obligations of the government issued during the Civil War, its language indicates a broader connotation. We regard it as confirmatory of a fundamental principle which applies as well to the government bonds in question, and to others duly authorized by the Congress, as to those issued before the Amendment was adopted. Nor can we perceive any reason for not considering the expression "the validity of the public debt" as embracing whatever concerns the integrity of the public obligations.

http://supreme.justia.com/cases/federal/us/294/330/case.html

  • Perry versus United States confirms the 14th Amendment as applying to all US bonds, past and present. It does not make any statement about priotritization of payment. – DJClayworth Oct 22 '13 at 17:47
  • @DJClayworth Why do you need references? do you need this to be an authoritative answer? Do you need to prove to someone else that "not be questioned" does not literally mean that you can't ask questions. Do you not trust me when I say "not be questioned" means "assumed to be true"? – Sam I am says Reinstate Monica Oct 22 '13 at 17:48
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    @SamIam - This is a StackExchange site. Answers are expected to be authoritative, in general. That being said, Perry is authoritative enough for me. – Bobson Oct 22 '13 at 17:50
  • I would like references because I want to know if all constitutional scholars agree on this interpretation. If there is consensus, references should be easy to find. – DJClayworth Oct 22 '13 at 17:50
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    @DJClayworth Skeptics stack exchange is like a swimming pool full of piranhas. Honestly, I'm scared to go in there myself. It makes this polarized stack exchange seem tame. – LateralFractal Oct 24 '13 at 12:47

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