The New York Review of Books
Can Obama Extend the Debt Ceiling on His Own?
July 29, 2011
By Ronald Dworkin - From Wikipedia :
Ronald Myles Dworkin, QC, FBA (born 1931) is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the University of Oxford. An influential contributor to both philosophy of law and political philosophy, Dworkin received the 2007 Holberg International Memorial Prize in the Humanities for "his pioneering scholarly work" of "worldwide impact." According to a survey in The Journal of Legal Studies, Dworkin was the second most-cited American legal scholar of the twentieth century.
His theory of law as integrity, in which judges interpret the law in terms of consistent and communal moral principles, especially justice and fairness, is amongst the most influential contemporary theories about the nature of law. He advocates a "moral reading" of the United States Constitution,[3] and an interpretivist approach to law and morality. He is a frequent commentator on contemporary political and legal issues, particularly those concerning the Supreme Court of the United States, often in the pages of The New York Review of Books.
Ronald Dworkin was born in 1931 in Providence, Rhode Island, United States. He studied at Harvard University and at Magdalen College, Oxford, where he was a Rhodes Scholar and a student of Sir Rupert Cross. After completing his final year's exams at Oxford, the examiners were so impressed with his script that the Chair of Jurisprudence (then H.L.A Hart) was summoned to read it. Dworkin then attended Harvard Law School and subsequently clerked for Judge Learned Hand of the United States Court of Appeals for the Second Circuit. Judge Hand would later call Dworkin the finest clerk he ever employed, and Dworkin would recall Judge Hand as an enormously influential mentor. After working at Sullivan & Cromwell, a prominent law firm in New York City, Dworkin became a Professor of Law at Yale University, where he became the holder of the Wesley N. Hohfeld Chair of Jurisprudence.
In 1969, Dworkin was appointed to the Chair of Jurisprudence at Oxford, a position in which he succeeded H. L. A. Hart, and elected Fellow of University College, Oxford. After retiring from Oxford, Dworkin became the Quain Professor of Jurisprudence at University College London, where he subsequently became the Bentham Professor of Jurisprudence—a position he does not hold anymore (he gave his valedictory lecture at UCL in March 2008). He is also currently Frank Henry Sommer Professor of Law at New York University School of Law and professor of Philosophy at New York University (NYU),[4] where he has taught since the late 1970s. He currently co-teaches a colloquium in legal, political, and social philosophy with Thomas Nagel. Dworkin has regularly contributed, for several decades, to The New York Review of Books. He delivered the Oliver Wendell Holmes Lecture at Harvard, the Storrs Lectures at Yale, the Tanner Lectures on Human Values at Stanford, and the Scribner Lectures at Princeton. In June 2011 it was announced that he would join the professoriate of New College of the Humanities, a private college in London.
Can Obama Extend the Debt Ceiling on His Own?
Some excerpts :
The “debt shall not be questioned” clause was added to the Fourteenth Amendment for a specific and immediate purpose: to prevent the new Southern members of Congress, should they gain a majority, from cancelling the debt the Union had incurred in the war. But constitutional interpretation is not a catalogue of historical anecdotes; it is a matter of principle and we are therefore required to identify the principle on which the authors of the clause had to rely. As Chief Justice Hughes said of the clause in 1935, speaking for a unanimous Supreme Court, “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 … ”
The general contours of that fundamental principle seem clear enough. Congress does not have authority, even by a substantial majority, to dishonor the nation by repudiating outstanding debts it has authorized the nation to incur. The fiscal integrity of the United States is sacred and requires constitutional protection. Does that principle apply to the debt ceiling crisis?
Of course the principle does not prevent Congress from refusing to authorize new obligations. Obviously, Congress may modify or even extinguish the Social Security or Medicare programs prospectively. But the Republican majority in the House now refuses to permit the country to meet debts duly authorized in the past that remain duly authorized now, unless the Democrats and the President agree to a radical reduction in essential public services that they would never otherwise accept. That is playing blackmail with the nation’s honor. It threatens exactly the kind of forced default that the principle behind the debt clause declares it has no authority to inflict. I believe the best, principled, interpretation of the clause gives the president authority to ignore that blackmail and to borrow enough to meet the nation’s standing legal obligations.
Many academic and other constitutional lawyers agree, and even Senator Chuck Grassley, a conservative Republican, says that this constitutional argument cannot be dismissed. However, Professor Lawrence Tribe of the Harvard Law School, a very distinguished constitutional lawyer, disagrees. He writes that the argument I have just endorsed proves too much. “It would mean that any budget deficit, tax cut or spending increase could be attacked on constitutional grounds, because each of those actions slightly increases the probability of default.” But I believe Professor Tribe has confused the principle I describe with a different one: that Congress lacks authority to make any decision that might decrease the nation’s treasury and so make national default “slightly” – even if only theoretically – more likely. This would indeed be absurd. But the Republicans now threaten action that they know would make default inevitable: indeed that inevitability is essential to their blackmail strategy. That violates the very different principle I described and that Chief Justice Hughes had in mind: it claims Congressional authority knowingly to make it legally impossible for the nation to act honestly.
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One enormous consequence of the shaming national disgrace we are now enduring will not be known until November of 2012. But I doubt very many now uncommitted voters would disapprove of a president who acted under a reasonable interpretation of the law to allow the government payments on which they rely to continue, and to prevent damage to our international credit that would inevitably increase their taxes and might well eventually savage their standard of living.
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