The Public Debt Clause theory doesn’t work because the text of the clause gives no hint of a presidential authority—”Congress shall have power to enforce” it, not the president. Using Congress’s section 5 enforcement power to take Congress’s Article 1 borrowing power would be an ambitious double heist. Second, as my paper recounts at length, legislative limits on executive borrowing were common in the 19th century and never thought to create any conflict with the Clause until very recently. (It is only in the past couple of decades—as partisan polarization has become especially bitter—that anyone looked to the 14th Amendment as a constitutional escape hatch.) Third, the facts. As a practical matter, it is not at all likely that reaching the point where total obligations exceed total revenue means we “default” on the public debt. It has been clear for decades that the United States can roll over the debt and continue paying interest even as it prioritizes other spending.

But Professor Dorf offers a fair rejoinder: The argument I’ve sketched above works “only if one takes a very narrow view of what constitutes ‘debt.'” The idea here is that the “public debt” might be read broadly, to include all manner of payments that the United States is indebted to make.

This is not the best way to read the Clause. The text of the Clause itself defines “public debt” as “including debts incurred for payment of pensions and bounties.” If the term “public debt” already included (for example) the pensions, then the “debts incurred for” language would make no sense. The background drafting and ratification history concerns a limited set of debt securities, and the later text of the section (the so-called “Rebel Debt Clause”) distinguishes between “debts, obligations and claims”—further evidence that “debt” must have a limited scope. And then we have overwhelming legislative practice since the 19th Century. “Public debt” isn’t a term that appears only in the 14th Amendment. The term has appeared in public laws for centuries, and I know of no instance where it has the broad sweep Dorf would give it.

[I find it fascinating that the same people who needed fainting couches when Dick Cheney argued for the “unitary executive” now argue vociferously that the 14th Amendment made Congress subordinate to the executive — and only now, nearly 160 years after ratification. One can make the argument that the debt ceiling is stupid and redundant; I’ve made that argument myself. But being stupid or redundant do not make laws unconstitutional, as I warned before the Supreme Court ruled in Lawrence v Texas, and as Clarence Thomas warned in his dissent to that decision. — Ed]