Advancing a Free Society

Where Credit is Due

Wednesday, July 13, 2011

A week ago Washington was abuzz with the seemingly nifty idea that Section Four of the Fourteenth Amendment could empower the President to borrow money above the debt ceiling, without congressional authorization. Now the idea seems to be dead. Not only has Secretary Geithner’s lawyer repudiated the suggestion, but the Secretary has denied he ever even floated the idea.

Part of the reason this idea lost favor is that it was wrong on the merits. But it helped – maybe even decisively – that Professor Laurence Tribe, professor at Harvard Law School and well-known Obama enthusiast, stood up and publicly denounced the faulty constitutional interpretation on which it rested, in an op-ed in the New York Times.

Professor Tribe deserves praise for this. It is not easy for a prominent intellectual to pull the rug out from under a political scheme of his allies, especially in a high-stakes partisan confrontation like the debt ceiling talks in Washington, where the Administration would dearly love to neutralize the leverage the debt ceiling gives Congress to force budgetary reform. This is what distinguishes a scholar from a hack: the willingness to analyze a question dispassionately and tell the truth even when it is politically inconvenient.

But the episode also should serve as a reminder of the role of law in a democratic republic. It is all too easy to point to cases where political loyalty or ideology seems to dominate legal interpretation – conservatives point to Roe v. Wade, and liberals point to Bush v. Gore – and to conclude that law, especially constitutional interpretation, is just politics in disguise. But it is not necessarily so.

Professor Tribe’s act of scholarly integrity in the debt ceiling matter reminds us that the law is not just a nose of wax to be molded as we see fit. Words have meaning; history gives context; constitutions are meant to constrain and not merely empower. If we forget that, if we succumb to the notion that law is just politics, and that bad interpretations are okay because everybody is doing it, we have lost an essential anchor of our system of government.

Thus, Professor Tribe deserves credit not just for eviscerating a faulty constitutional idea, but for reaffirming a vital constitutional ideal – the ideal of objectivity in legal interpretation. Hats off to him.

(photo credit: Eric Brown)